IN THE SUPREME COURT OF IOWA 

No. 101 / 06–1856 

Filed October 10, 2008 

HAROLD JOHNSON, 

Plaintiff, 

vs. 

IOWA DISTRICT COURT FOR STORY COUNTY, 

Defendant. 

Certiorari to the Iowa District Court for Story County, Carl D. 

Baker, Judge. 

Plaintiff challenges the district court’s denial of his request for a 

final hearing at his annual review. WRIT SUSTAINED, AND CASE 

REMANDED. 

 Mark C. Smith, State Appellate Defender, and Steven L. Addington 

and Michael H. Adams, Assistant Public Defender, for plaintiff. 

 Thomas J. Miller, Attorney General and Linda J. Hines and Becky 

Goettsch, Assistant Attorneys General, for defendant. 
 2

STREIT, Justice. 

By petition for writ of certiorari, Harold Johnson, a civilly 

committed sexual predator, challenges a district court judgment denying 

his request for a final hearing to determine whether he is eligible for 

release. He claims the district court exceeded its jurisdiction and acted 

illegally when it weighed conflicting expert opinions at his annual review 

to determine he was not entitled to a final hearing. We conclude the 

controlling statute does not require the committed person prove at the 

annual review a likelihood of winning at his final hearing. The statute 

governing annual reviews requires the committed person show there is 

admissible evidence that could lead a fact finder to find reasonable doubt 

on the issue of whether his mental abnormality has changed. We 

therefore sustain the writ. 

I. Background Facts and Prior Proceedings. 

Johnson was civilly committed as a sexually violent predator under 

the Commitment of Sexually Violent Predators Act, Iowa Code chapter 

229A in July 2001. According to the stipulated facts, Johnson was 

convicted of lascivious acts with a child in 1994 and assault with intent 

to commit sexual abuse in 1985. Prior to commitment, Johnson was 

diagnosed with an antisocial personality disorder that predisposes him to 

commit future sexually violent offenses. Since his 2001 commitment, 

Johnson has had five annual reviews, and in each one, the court has 

denied Johnson’s request for a final hearing. At his October 2006 

annual review, the State submitted evidence that, although Johnson was 

making progress, he was not ready for release and remained more likely 

than not to commit sexually violent offenses if not confined in a secure 

facility. Further, the State submitted Johnson’s current progress 
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assessment, which included a transcript from a clinical interview in 

which Johnson admitted he was not ready to be released. Johnson 

submitted a report by Dr. Richard Wollert that concluded Johnson no 

longer suffers from a mental abnormality, or at the very least, he is not 

likely to commit sexually violent offenses if released. Wollert’s conclusion 

was based primarily on actuarial data indicating the risk of recidivism 

declines with age, and Johnson’s risk of reoffending, given his age of 

sixty, was ten percent. The district court weighed the evidence presented 

by both parties and determined Johnson had not shown by a 

preponderance of the evidence he was entitled to a final hearing. 

Johnson filed an application for writ of certiorari with this court, 

claiming the district court exceeded its jurisdiction when it weighed 

evidence to determine he was not entitled to a final hearing. 

II. Scope of Review. 

In a certiorari case, we review the district court’s action for 

corrections of errors at law. Weissenburger v. Iowa Dist. Ct., 740 N.W.2d 

431, 434 (Iowa 2007). We may examine “only the jurisdiction of the 

district court and the legality of its actions.” Christiensen v. Iowa Dist. 

Ct., 578 N.W.2d 675, 678 (Iowa 1998). An “illegality exists when the 

court’s findings lack substantial evidentiary support, or when the court 

has not properly applied the law.” Id. We accept as true the district 

court’s factual findings, if well supported. State Pub. Defender v. Iowa 

Dist. Ct., 644 N.W.2d 354, 356 (Iowa 2002). 

III. Merits.

Iowa Code chapter 229A allows for the commitment of sexually 

violent predators in order “to protect the public, to respect the needs of 

the victims of sexually violent offenses, and to encourage full, meaningful 
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participation of sexually violent predators in treatment programs.” Iowa 

Code § 229A.1 (2007). The United States Supreme Court has upheld 

civil commitments as constitutional so long as the commitment statute 

does not violate the Due Process Clause. To civilly commit an individual, 

the State is required by the Due Process Clause to prove by 

clear and convincing evidence the two statutory 

preconditions to commitment: that the person sought to be 

committed is mentally ill and that he requires [commitment] 

for his own welfare and protection of others. 

Foucha v. Louisiana, 504 U.S. 71, 75–76, 112 S. Ct. 1780, 1783, 118 L. 

Ed. 2d 437, 445 (1992). Once the individual no longer suffers from the 

mental abnormality or is no longer dangerous, the civil commitment 

must end. Id. at 77, 112 S. Ct. at 1784, 118 L. Ed. 2d at 446. 

 This case concerns the procedures afforded to the committed 

person after commitment. Although the statute was enacted for the 

long-term treatment of sexually violent predators, section 229A.8 sets 

forth procedural due process safeguards permitting the committed 

person to challenge his commitment each year. Under section 229A.8, 

the committed person is entitled to an annual review in which he may 

request a final hearing to determine whether he is eligible for release or 

transitional release. This statute provides in part: 

1. Upon civil commitment . . . , a rebuttable 

presumption exists that the commitment should continue. 

The presumption may be rebutted when facts exist to 

warrant a hearing to determine whether a committed person 

no longer suffers from a mental abnormality which makes 

the person likely to engage in predatory acts constituting 

sexually violent offenses if discharged, or the committed 

person is suitable for placement in a transitional release 

program. 

. . . . 

5. The following provisions apply to an annual review: 

. . . . 
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e. The burden is on the committed person to show by a 

preponderance of the evidence that there is competent 

evidence which would lead a reasonable person to believe a 

final hearing should be held to determine either of the 

following: 

(1) The mental abnormality of the committed person 

has so changed that the person is not likely to engage in 

predatory acts constituting sexually violent offenses if 

discharged. 

(2) The committed person is suitable for placement in a 

transitional release program pursuant to section 229A.8A. 

If the committed person shows by a preponderance of 

the evidence that a final hearing should be held on either 

determination under subparagraph (1) or (2), or both, the 

court shall set a final hearing within sixty days of the 

determination that a final hearing be held. 

Iowa Code § 229A.8(1), (5)(e) (emphasis added). The statute places the 

burden of proof on the committed person to show by a “preponderance of 

the evidence” there is “competent evidence which would lead a 

reasonable person to believe a final hearing should be held.” Id. 

The previous version of this statute provided a final hearing should 

be granted 

if the court at the hearing determines that probable cause

exists to believe that the person’s mental abnormality has so 

changed that the person is safe to be at large and will not 

engage in predatory acts or sexually violent offenses if 

discharged. 

Iowa Code § 229A.8(4) (2001) (emphasis added). In a 2002 amendment, 

the legislature added the “rebuttable presumption . . . that the 

commitment should continue” and provided that at the annual review, 

“the burden is on the committed person to show by a preponderance of 

the evidence that there is competent evidence which would lead a 

reasonable person to believe a final hearing should be held.” Iowa Code § 

229A.8(1), (5)(e) (2007). Today, we interpret the current version of 
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section 229A.8(5)(e) to determine exactly what the committed person 

needs to demonstrate in order to be granted a final hearing. 

Less than half of states allow for the civil commitment of sexually 

violent predators,1 and most of those states use a probable cause 

standard at the annual review hearing. See, e.g., Wash. Rev. Code § 

71.09.090(2)(c) (2008). Cases from those states interpreting their civil 

commitment statutes make it clear the probable cause standard does not 

permit the court to weigh evidence, and the burden on the committed 

person is quite low to be granted a final hearing on the issue of release.2 

See, e.g., In the Matter of the Detention of Elmore, 168 P.3d 1285, 1288 

(Wash. 2007); In re Commitment of Allen, 927 So. 2d 1070 (Fla. Dist. Ct. 

App. 2006). In contrast, Iowa and Missouri require a higher evidentiary 

burden—preponderance of the evidence—to be granted a final hearing at 

an annual review. The Missouri statute requires the committed person 

to demonstrate by a preponderance of the evidence he no longer suffers 

 1States that allow for civil commitment of sexually violent predators include 

Arizona, Ariz. Rev. Stat. Ann. § 36–3701 (2008); California, Cal. W&I Code § 6600 

(2008); Florida, Fla. St. § 394.910 (2008); Illinois, 725 Ill. Comp. Stat. Ann. 207/1 

(2008); Kansas, Kan. Stat. Ann. § 59–29a01 (2007); Massachusetts, Mass. Gen. Laws 

Ann. Ch. 123A, § 1 (2008); Minnesota, Minn. Stat. Ann. § 253B.01 (2008); Missouri, 

Mo. Rev. Stat. § 632.480 (2008); Nebraska, Neb. Rev. Stat. § 71–1201 (2007); New 

Jersey, N.J. Stat. Ann. §30:4–27.24 (2008); North Dakota, N.D. Cent. Code. § 25–03.3–

01 (2008); South Carolina, S.C. Code Ann. § 44–48–10 (2008); Texas, Tex. Health & 

Safety Code Ann. § 841.001 (2008); Virginia, Va. Code Ann. § 37.2–900 (2008); 

Washington, Wash. Rev. Code § 71.09.010 (2008); and Wisconsin, Wis. Stat. Ann. § 

980.01 (2008). 

2In interpreting Washington’s Sexually Violent Predator Act, the Washington 

Supreme Court explained “a court may not weigh the evidence in determining whether 

probable cause exists; rather, it must merely decide whether the facts, if believed, 

establish that the person is no longer a [sexually violent predator] or may otherwise be 

conditionally released.” In the Matter of the Detention of Elmore, 168 P.3d 1285, 1288 

(Wash. 2007); see also In re Commitment of Allen, 927 So. 2d 1070 (Fla. Dist. Ct. App. 

2006) (“[I]f the committed person presents evidence supporting release at a limited 

probable cause hearing, the trial court considers only that evidence to determine 

probable cause; it does not weigh the evidence against [it].”). 
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from a mental abnormality. Mo. Rev. Stat. § 632.498(4) (2004). 

Functioning as a “ ‘gatekeeper’ to ensure that only those who make a 

legitimate claim can obtain a jury trial,” the district court is permitted to 

weigh evidence from both parties in order to determine whether the 

committed person has met his burden. In re Care & Treatment of 

Coffman, 225 S.W.3d 439, 444 (Mo. 2007). Although both the Iowa and 

Missouri statutes use the preponderance-of-the-evidence standard, the 

Missouri statute is different from the Iowa statute in what must be 

proven by a preponderance of the evidence. The Missouri statute 

requires the committed person prove he no longer suffers from a mental 

abnormality, whereas the Iowa statute requires the committed person 

prove only that there is competent evidence that would lead a reasonable 

person to grant him a final hearing. Compare Mo. Rev. Stat. § 

632.498(4), with Iowa Code § 229A.8(5). Thus, Iowa’s statute is unique, 

and consequently, interpretations of statutes from other states are of 

only limited value. 

In the case before us, the parties disagree on what the committed 

person needs to demonstrate in order to be granted a final hearing and 

what role the district court plays in weighing evidence. The State argues 

that by changing the burden of proof from probable cause to 

preponderance of the evidence, the Iowa legislature intended to impose a 

stricter burden of proof upon the committed person and to require the 

court to weigh competing evidence. Relying on the Missouri statute and 

case law, the State argues the preponderance of the evidence standard 

allows the district court to weigh competing evidence in determining 

whether the committed person is entitled to a final hearing. Under this 

interpretation, in order to convince a reasonable person he should get a 
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hearing, the committed person would essentially have to prove by a 

preponderance of the evidence he no longer suffers from an abnormality 

that would make him likely to engage in sexually violent offenses. In 

effect, the State’s interpretation requires the committed person show a 

likelihood of winning at the final hearing in order to be granted a final 

hearing. Under this interpretation, everyone who is granted a final 

hearing would essentially be pre-approved for release. 

The flaw in this interpretation becomes apparent when one 

compares an annual review with a final hearing. The burden of proof, 

who bears that burden, and what needs to be demonstrated by the party 

bearing the burden of proof are markedly different at the annual review 

and the final hearing. At an annual review, the committed person bears 

the burden of proof to show by a “preponderance of the evidence” there is 

“competent evidence which would lead a reasonable person to believe a 

final hearing should be held.” Iowa Code § 229A.8(5). At the final 

hearing, the state bears the burden of proof to show “beyond a 

reasonable doubt” the committed person’s mental abnormality has not 

changed.3 Id. § 229A.8(6). The committed person has no burden to 

 3The provision on final hearings, section 229A.8(6), reads in part: 

d. The burden of proof at the final hearing shall be upon the 

state to prove beyond a reasonable doubt either of the following: 

(1) The committed person’s mental abnormality remains such 

that the person is likely to engage in predatory acts that constitute 

sexually violent offenses if discharged. 

(2) The committed person is not suitable for placement in a 

transitional release program. . . . 

Iowa Code § 229A.8(6)(d). The prerequisites for the transitional release program 

include, among other things, that the committed person’s “mental abnormality is no 

longer such that the person is a high risk to reoffend.” Id. § 229A.8A(2)(a). 
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prove anything at the final hearing. Id. If, at the final hearing, the fact 

finder determines there is a reasonable doubt as to whether the 

committed person still suffers from a mental abnormality, the 

commitment ends. Id.

It would be illogical and contrary to the legislature’s allocation of 

the burden of proof to interpret section 229A.8(5)(e) to require the 

committed person to disprove the state’s final-hearing case in order to 

obtain a final hearing. Moreover, such an interpretation ignores the 

statutory language, which does not require the committed person to 

show there is a reasonable doubt as to whether he continues to suffer 

from a mental abnormality, but only that there is “competent evidence

which would lead a reasonable person to believe a final hearing should 

be held.” Id. § 229A.8(5) (emphasis added). “We assume the legislature 

intends different meanings when it uses different terms in different 

portions of a statute.” Miller v. Marshall County, 641 N.W.2d 742, 

749 (Iowa 2002) (citing 2A Norman J. Singer, Sutherland Statutory 

Construction § 46:06, at 194 (6th ed. 2000)). Focusing then on the 

language used in section 229A.8(5)(e), we believe a reasonable person 

would give the committed person a hearing when there is competent4

evidence that would allow a fact finder to find reasonable doubt on the 

issue of whether his mental abnormality has changed. This 

interpretation of the statute does not foreclose the district court from 

evaluating the evidence presented by the committed person to determine 

whether the evidence could support a reasonable doubt finding and 

 4Competent evidence means admissible evidence, not credible evidence. See 

Black’s Law Dictionary 596 (8th ed. 2004); see also State v. Decker, 744 N.W.2d 346, 

356 (Iowa 2008). 
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whether a reasonable person would conclude that this evidence, if 

believed, could lead to release. It does not, however, permit the district 

court to conduct a mini-hearing on the issue of whether the committed 

person still suffers from a mental abnormality. 

In determining whether the committed person is entitled to a final 

hearing, the district court should apply the following standard: if the 

committed person presents admissible evidence that could lead a fact 

finder to find reasonable doubt on the issue of whether his mental 

abnormality has changed such that he is unlikely to engage in sexually 

violent offenses, then the committed person should be granted a final 

hearing. Johnson has met this standard by submitting the report of Dr. 

Wollert. 

IV. Conclusion. 

We interpret the statute governing annual reviews to require the 

committed person show there is admissible evidence that could lead a 

fact finder to find reasonable doubt on the issue of whether his mental 

abnormality has changed. The writ of certiorari to this court is 

sustained. The district court exceeded its jurisdiction when it denied 

Johnson’s request for a final hearing. 

WRIT SUSTAINED, AND CASE REMANDED.