IN THE COURT OF APPEALS OF IOWA

No. 22-0940

Filed April 12, 2023

IN THE INTEREST OF L.H.,

ALLEGED TO BE SERIOUSLY MENTALLY IMPAIRED,

L.H.,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County, Ty Rogers, 

District Associate Judge.

A respondent appeals his civil commitment. AFFIRMED. 

William (Bill) Monroe, Burlington, for appellant.

Brenna Bird, Attorney General, and Chandlor Glenn Collins, Assistant 

Attorney General, for appellee State.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2

PER CURIAM.

L.H. appeals a district court order continuing his civil commitment. He 

contends counsel was ineffective for failing to move to recuse the judge, failing to 

object to a periodic report, and failing to adequately challenge his commitment.1 

He also challenges the sufficiency of the evidence. We find counsel was not 

ineffective. Sufficient evidence supports L.H.’s continued commitment. We affirm. 

I. Background Facts & Proceedings

L.H. is serving a life sentence for murder. His conviction was affirmed on 

direct appeal in 2005. He has been civilly committed since 2013. See In re L.H., 

No. 19-1888, 2020 WL 2988236, at *1 (Iowa Ct. App. June 3, 2020) (per curiam). 

He is diagnosed with schizophrenia and a delusional disorder with an erotomanic 

subtype. His mental illness causes him to engage in hypergraphia—excessive 

writing—which includes writing sexually explicit content to staff and other members 

of the public. He also has exposed himself and masturbated in front of prison staff. 

He most recently received a “major report” in January 2022 for sexual misconduct 

and sexual violence after he was discovered masturbating in front of a prison 

guard. 

1 Our supreme court has not held that a respondent subject to an involuntary 

commitment proceeding has a right to effective assistance of counsel. See In re 

Det. of Crane, 704 N.W.2d 437, 438-39 n.3 (Iowa 2005) (explaining that while the 

Sixth Amendment right to counsel “is not directly implicated” by civil commitments, 

because committees have a statutory right to counsel, “due process demands the 

appointed counsel provide effective assistance”). Our court has previously

addressed this claim, determining that the right to effective assistance of counsel 

“appears to be consistent with precedent.” In re D.M.T., No. 11-0654, 2012 WL 

1440230, at *2 (Iowa Ct. App. Apr. 25, 2012) (citation omitted). We elect to reach 

the merits of L.H.’s claims. 
3

L.H. sent multiple pro se letters to the district court in the spring of 2022. In 

the letters, he claimed prison staff engaged in harassment directed toward him

since 2007. He also alleged staff submitted false reports about him, resulting in 

his ongoing commitment. He asked to be transferred to a prison in Minnesota. He 

asserted that he did not need “this unlawful medication to function correctly in my 

everyday life.” In a May 5, 2022, order, the court noted L.H.’s pro se letters were 

“nonsensical,” but scheduled a hearing soon thereafter “to review the necessity of 

the current committal proceedings”. 

A review hearing was held on May 18, 2022. The State relied on the 

periodic report submitted on May 17, 2022, by the staff psychiatrist nurse 

practitioner under Iowa Code section 229.15 (2022). That report alleged L.H. was 

seriously mentally impaired, his condition had remained unchanged from the last 

review hearing, and identified the January 2022 report as a recent episode of 

dangerous behavior. L.H., through counsel, presented no evidence. The district 

court ordered L.H. to remain civilly committed. L.H. now appeals. 

II. Standard of Review

We review claims of ineffective assistance of counsel de novo. Crane, 704 

N.W.2d at 438. “To succeed on an ineffective-assistance-of-counsel claim, a 

defendant must prove (1) trial counsel failed to perform an essential duty and (2) 

prejudice resulted.” Id. at 439. 

To the extent L.H. raises a free-standing claim challenging the sufficiency 

of the evidence, we review such claim for the correction of errors at law. In re 

B.T.G., 784 N.W.2d 792, 796 (Iowa Ct. App. 2010). “The district court’s findings 

of fact are binding upon this court if supported by substantial evidence. Evidence 
4

is substantial if a reasonable trier of fact could conclude the findings were 

established by clear and convincing evidence.” Id. (internal citation omitted).

III. Judicial Bias

L.H. contends his counsel was ineffective for failing to move to recuse the 

judge. In its May 5, 2022 order, the court characterized L.H.’s pro se letters as 

“nonsensical in nature.” Because those letters allege correctional staff fabricated

reports about him that serve as the basis for his continued commitment, he alleges 

the court pre-decided the issue of his continued civil commitment. 

We reject L.H.’s claim for two reasons. First, even though the May 5 order 

found L.H.’s letters nonsensical in nature, the court immediately thereafter issued 

an order scheduling a hearing “to review the necessity of the current committal 

proceedings.” This suggests that the court did not dismiss L.H.’s complaints 

summarily. Instead, it suggests that the court, while not understanding L.H.’s 

filings because the court found them nonsensical, scheduled a hearing to give L.H. 

the opportunity to voice any concerns he had about continued commitment. As 

the court had not prejudged the issue, the court had no obligation to be recused 

and counsel was not ineffective for not requesting recusal.

Second, the supreme court recently summarized a judge’s obligation to 

recuse themselves from a proceeding:

“A judge shall disqualify himself or herself in any proceeding 

in which the judge’s impartiality might reasonably be 

questioned . . . .” Iowa Code of Judicial Conduct R. 51:2.11(A); see 

also Iowa Code § 602.1606(1)(a) (2020) (“A judicial officer is 

disqualified from acting in a proceeding . . . if . . . [t]he judicial officer 

has a personal bias or prejudice concerning a party.”). The Iowa 

Code of Judicial Conduct, Terminology, defines impartiality as 

“absence of bias or prejudice in favor of, or against, particular parties 

or classes of parties, as well as maintenance of an open mind in 
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considering issues that may come before a judge.” Actual prejudice 

must be shown before recusal is necessary, and speculation is not 

sufficient. State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). The 

test is “whether reasonable persons with knowledge of all facts would 

conclude that the judge’s impartiality might reasonably be 

questioned.” State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). The 

party seeking disqualification must show that the judge’s “alleged 

bias and prejudice must stem from an extrajudicial source and result 

in an opinion on the merits on some basis other than what the judge 

learned from participation in the case.” State v. Bear, 452 N.W.2d 

430, 435 (Iowa 1990).

Carter v. Carter, 957 N.W.2d 623, 643-44 (Iowa 2021) (alterations in original). 

L.H. has failed to establish the district court’s purported bias was based on 

extrajudicial sources that resulted in a decision premised on information not 

obtained through the court’s participation in the case. Indeed, the alleged bias 

stemmed from L.H.’s own pro se filings, which he does not suggest the court 

should have ignored. The court considered his allegations, found them to lack 

credibility, and made a decision solely on the information the judge learned from 

the judge’s participation in the case. See id. at 644. Because L.H. has not shown

the court was improperly biased, his claim fails—counsel has no obligation to file

a meritless motion. L.H. was not prejudiced by counsel’s inaction. 

IV. Periodic Report 

L.H. contends his counsel should have objected to the May 17, 2022 

periodic report. He claims the report contains false information—specifically the 

allegation that he masturbated in front of staff on January 26, resulting in a major 

report of sexual misconduct and sexual violence. Consistent with prior pro se 

filings, L.H. asserts correctional staff filed false reports of his behavior. 

L.H.’s counsel was not ineffective for failing to object to the report. L.H. 

identifies no grounds for challenging the report’s admissibility. Periodic reports are 
6

required by statute. See Iowa Code § 229.15. L.H.’s allegation that the report 

contains false information goes to its weight, not its admissibility. See State v. 

Booth-Harris, 942 N.W.2d 562, 576 (Iowa 2020) (“Most evidence can be called into 

question in some way; however, that does not give the . . . court the ability to 

preclude admission. We have cross-examination for a reason; evidence often is 

tested in that way.”) (alteration in original) (quoting State v. Roberson, 935 N.W.2d 

813, 828 (Wis. 2019)). L.H.’s counsel had no obligation to object because there 

was no basis for doing so. 

V. Sufficiency of Evidence

L.H. contests the sufficiency of the evidence supporting his commitment. A 

person may be involuntarily committed if they have a serious mental impairment, 

as defined in Iowa Code section 229.1(21). See Iowa Code § 229.6. 

The definition of serious mental impairment has three 

elements. The respondent must be found to have (1) a mental 

illness, consequently (2) to lack “sufficient judgment to make 

responsible decisions with respect to the person’s hospitalization or 

treatment” and (3) to be likely, if allowed to remain at liberty, to inflict 

physical injury on “the person’s self or others,” to inflict serious 

emotional injury on a designated class of persons, or be unable to 

satisfy the person’s physical needs.

In re J.P., 574 N.W.2d 340, 343 (Iowa 1998). The final element may now be proven 

by a fourth category, “a history of lack of compliance with treatment.” Iowa Code 

§ 229.1(21)(d). The State bears the burden of proving each element. See In re 

L.H., 890 N.W.2d 333, 340 (Iowa Ct. App. 2016). “[T]o prolong a person’s 

commitment, all three elements—mental illness, lack of judgment, and 

dangerousness, must continue to exist.” Id. 
7

L.H. does not appear to seriously contest the first two elements. He is 

diagnosed with “schizophrenia as well as a delusional disorder with an erotomanic 

subtype.” The second element—lack of judgment—requires that the respondent 

“lacks sufficient judgment to make responsible decisions with respect to the 

person’s hospitalization or treatment.” Iowa Code § 229.1(21). The nurse 

practitioner who submitted the most recent periodic report detailed how L.H. lacks 

insight on the inappropriate and harmful nature of his behavior, instead seeing it 

as a way to connect with others. In a pro se letter L.H. sent the court on 

January 25, 2022, he derided the “unlawful medication,” asserting he did not need 

it to function. That sentiment is similar to his long-standing belief that he does not 

need medication, contradicted by medical staff who worked with him. In particular, 

the staff psychiatrist testified in a 2019 review proceeding that L.H.’s behavior 

worsens when he receives too low a dose of medication, and relayed L.H.’s 

statements suggesting he would stop taking medication if he were not committed. 

L.H. challenges the last element. “We have said the endangerment element 

requires a predictive judgment, based on prior manifestations but nevertheless 

ultimately grounded on future rather than past danger. The danger the person 

poses to herself or others must be evidenced by a recent overt act, attempt or 

threat.” J.P., 574 N.W.2d at 344 (citations and quotation marks omitted). The 

district court found L.H. was likely to inflict serious emotional injury2 on others if 

2

Iowa Code § 229.1(20) provides:

“Serious emotional injury” is an injury which does not necessarily 

exhibit any physical characteristics, but which can be recognized and 

diagnosed by a licensed physician or other mental health 

professional and which can be causally connected with the act or 

omission of a person who is, or is alleged to be, mentally ill. 
8

treatment ceased—in particular, the court identified staff members at the prison 

who could not avoid contact with L.H. 

We find substantial evidence supports that assessment. L.H. received 

discipline in January 2022 for exposing himself and masturbating in front of a staff 

member. That conduct resulted in a major report for sexual misconduct and sexual 

violence. When he is not medicated or is under-medicated, his behavior worsens, 

resulting in L.H. sending highly explicit letters to staff members and other members 

of the public. Someone receiving those letters or witnessing L.H. masturbating is 

likely to endure a serious emotional injury. And L.H. will not comply with 

medication if not ordered to do so. 

L.H. highlights that the only evidence demonstrating a recent overt act was 

the report from January 2022, which he claims was a false report. But the only 

evidence supporting his claim is his own pro se letters making conclusory 

allegations. And we, like the district court, find those allegations lack credibility. 

Evidence was sufficient to establish L.H. is seriously mentally impaired pursuant 

to chapter 229. 

VI. Structural Error 

L.H. claims his counsel committed structural error by failing to subject the 

State to adversarial testing. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). 

He highlights that the only evidence indicating a recent overt act causing serious 

emotional injury came from the January 2022 periodic report. And L.H. claims this

periodic report relied on false reports from prison staff. He argues his counsel 

failed to adequately represent his position that the discipline report was premised 
9

on false information. He also generally asserts counsel failed to challenge the 

sufficiency of the evidence.3 

“We have recognized structural error occurs when . . . counsel does not 

place the prosecution’s case against meaningful adversarial testing . . . .” Id. 

“Under these circumstances, ‘[n]o specific showing of prejudice [is] required’ as 

the . . . process itself is ‘presumptively unreliable.’” Id. (first and second alterations 

in original) (quoting U.S. v. Cronic, 466 U.S. 648, 659 (1984)). 

Here, the hearing was short. The State relied on the information provided 

in the May 18, 2022 periodic report. Counsel for L.H. did not present any evidence. 

But L.H. was allowed to speak to the court. L.H. bears the burden of establishing 

counsel failed to subject the State to adversarial testing. See id. On the record 

before us, we do not find structural error. 

VII. Cumulative Error

L.H. also asserts the culmination of all errors he identified warrants reversal. 

It is well-settled law that “we analyze all claims ‘individually and cumulatively’” 

when considering whether counsel was ineffective. State v. Clay, 824 N.W.2d 488, 

500 (Iowa 2012) (citation omitted). Because we conclude L.H. failed to establish 

counsel breached any essential duties, we do not address L.H.’s cumulative error

claim. 

AFFIRMED. 

3 L.H. further claims counsel committed structural error by failing to object to the 

admissibility of the report and to move to recuse the judge. Because we have 

already found counsel was not ineffective in those regards, his claims fail here as 

well.