IN THE COURT OF APPEALS OF IOWA

No. 19-2096

Filed May 26, 2021

IN RE THE DETENTION OF JESSE MONROE MILLIKIN,

JESSE MONROE MILLIKIN,

Respondent-Appellant.

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Appeal from the Iowa District Court for Keokuk County, Crystal S. Cronk, 

Judge.

Jesse Monroe Millikin appeals the district court order denying his motion to 

dismiss the petition for civil commitment filed against him. AFFIRMED.

Thomas J. Gaul of State Public Defender’s Office, Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee State.

Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

This appeal calls for us to determine whether the doctrine of claim 

preclusion bars the State from bringing a second petition for commitment as a 

sexually violent predator (SVP) under Iowa Code chapter 229A (2018) after a first 

petition was dismissed.

I. Background

In 2008, Jesse Monroe Millikin was convicted of three counts of assault with 

intent to commit sexual abuse. He was sentenced to an indeterminate term of two 

years in prison for the first count and a suspended sentence on the second and 

third counts. Millikin discharged his prison sentence for the first count in November 

2011. In November 2012, his special sentence under Iowa Code chapter 903B

was revoked and he was ordered to serve two more years in prison.

The State filed its first petition seeking to commit Millikin as an SVP in 

October 2014, not long before Millikin was scheduled to be released from prison. 

Iowa Code section 229A.4 (2014) sets forth alternative conditions that must be met 

for the State to initiate SVP commitment proceedings:

1. If it appears that a person presently confined may be a 

sexually violent predator and the prosecutor’s review committee has 

determined that the person meets the definition of a sexually violent 

predator, the attorney general may file a petition alleging that the 

person is a sexually violent predator and stating sufficient facts to 

support such an allegation.

2. A prosecuting attorney of the county in which the person was 

convicted or charged, or the attorney general if requested by the 

prosecuting attorney, may file a petition alleging that a person is a 

sexually violent predator and stating sufficient facts to support such 

an allegation, if it appears that a person who has committed a recent 

overt act meets any of the following criteria:

a. The person was convicted of a sexually violent offense 

and has been discharged after the completion of the sentence 

imposed for the offense.
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b. The person was charged with, but was acquitted of, a 

sexually violent offense by reason of insanity and has been released 

from confinement or any supervision.

c. The person was charge with, but was found to be 

incompetent to stand trial for, a sexually violent offense and has been 

released from confinement or any supervision.

In its first petition, the State relied solely on the condition set forth in section 

229A.4(1), alleging Millikin was “presently confined.” The district court granted 

the petition, finding Millikin to be an SVP, and Millikin appealed. While Millikin’s 

appeal was pending, the Iowa Supreme Court ruled in another case that a person

who has completely discharged a sentence for the underlying sexual crime and is 

serving a special sentence under Iowa Code chapter 903B is not “presently 

confined” within the meaning of section 229A.4(1). See In re Det. Wygle, 910 

N.W.2d 599, 619 (Iowa 2018), superseded by statute, 2019 Iowa Acts, ch. 17, § 4. 

As a result, the supreme court entered an order directing the petition against 

Millikin to be dismissed and for Millikin to be released. Following that direction, the 

district court entered an order dismissing the petition and releasing Millikin on 

September 17, 2018.

Three days after the order dismissing the first action was filed, the State 

filed its second petition. This time, instead of relying on section 229A.4(1) (2018)

and alleging Millikin was presently confined, the State relied on section 229A.4(2) 

and alleged Millikin had committed a “recent overt act” which necessitated his civil 

commitment. Millikin filed a motion to dismiss the second petition, arguing the 

petition was barred by res judicata because the allegations in the second petition 

were virtually identical to those in the first petition and that none of the acts alleged 

were recent within the meaning of chapter 229A. The district court denied the 
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motion, and Millikin was found to be a sexually violent predator and civilly 

committed. Millikin now appeals, relying solely on his claim-preclusion defense.

II. Standard of Review

We review the district court’s ruling on the motion to dismiss for correction 

of legal errors. In re Det. of Tripp, 915 N.W.2d 867, 873 (Iowa 2018). 

III. Discussion

Millikin argues the second petition is barred by res judicata because the 

substantive allegations in the second petition are the same as those in the first 

petition, apart from the allegation that Millikin had committed recent acts as 

opposed to being presently confined. Res judicata encompasses the concepts of 

both issue and claim preclusion. Colvin v. Story Cnty. Bd. of Rev., 653 N.W.2d 

345, 348 (Iowa 2002). Millikin concedes that issue preclusion is not applicable 

here because the issue of whether Millikin’s actions were “recent” within the 

meaning of chapter 229A was not litigated. See Barker v. Iowa Dep’t of Pub. 

Safety, 922 N.W.2d 581, 587 (Iowa 2019) (“Issue preclusion is a type of res 

judicata that prohibits parties ‘from relitigating in a subsequent action issues raised 

and resolved in [a] previous action.’” (alteration in original) (quoting Emps. Mut. 

Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012))). As such, the second 

petition is barred, if at all, only by claim preclusion.

In order for claim preclusion to apply, Millikin must show three elements:

(1) the parties in the first and second action are the same parties or 

parties in privity, (2) there was a final judgment on the merits in the 

first action, and (3) the claim in the second suit could have been fully 

and fairly adjudicated in the prior case (i.e., both suits involve the 

same cause of action).
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Pavone v. Kirke, 807 N.W.2d 828, 836 (Iowa 2011). “The absence of any one of 

these elements is fatal to a defense of claim preclusion.” Id. (quoting Arnevik v. 

Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002)).

There is no dispute the first element of claim preclusion is met, and we will 

assume for the sake of discussion the third element is satisfied as well. The fight

here is over the second element. The district court determined Millikin could not 

show there was a final judgment on the merits in the first action, and for that reason 

his claim-preclusion defense failed. On our review, we agree with the district court.

In the first action, the State was seeking to commit Millikin as an SVP. To 

do that, the State was required to prove three elements:

1. Millikin has been convicted of, or charged with, a sexually violent 

offense;

2. Millikin suffers from a mental abnormality; and

3. That mental abnormality makes Millikin likely to engage in 

predatory acts constituting sexually violent offenses if Millikin is not 

confined in a secure facility.

See Iowa Code §§ 229A.2(11) (defining “sexually violent predator”), 229A.7(3) 

(directing that a trial be conducted to determine whether a respondent is an SVP); 

Iowa State Bar Ass’n, Iowa Civil Jury Instruction 3700.1. After a trial in the first 

case, the district court found the State had proved all three elements and Millikin 

was an SVP. In short, the State won on the merits.

On appeal in the first case, the supreme court did not address the merits of 

whether Millikin was an SVP (i.e., whether the State had proved the three elements 

listed above) and did not disturb the district court’s determination in that regard. 

Instead, the supreme court entered an order directing dismissal of the petition 

because the State had not fulfilled the statutory conditions for filing a petition to 
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civilly commit Millikin in the first place under section 229A.4(1) because Millikin 

was not “presently confined” while serving his chapter 903B special sentence. The 

issue here is whether that dismissal was a final judgment “on the merits.”

Dismissal for failure to meet a condition of suit generally does not trigger 

claim preclusion as a decision on the merits. See Restatement (Second) of 

Judgments § 20(2) (Am. L. Inst. 1982) (“A valid and final personal judgment for the 

defendant, which rests on the prematurity of the action or on the plaintiff’s failure 

to satisfy a precondition to suit, does not bar another action by the plaintiff instituted 

after the claim has matured, or the precondition has been satisfied, unless a 

second action is precluded by operation of the substantive law.”), cited with 

approval in Dickens v. Associated Anesthesiologists, P.C., 709 N.W.2d 122, 126 

(Iowa 2006). Here, we conclude the termination of the first action was for failure 

to meet a statutory precondition to suit. Such a ruling, while a final judgment, is 

not “on the merits” within the context of Millikin’s claim-preclusion defense. This 

conclusion is strengthened by the fact the State won on the merits by proving 

Millikin was an SVP, and that ruling was not disturbed on appeal. Under these 

circumstances, we conclude Millikin has not satisfied the second element of his 

claim-preclusion defense and we find no error in the district court’s denial of 

Millikin’s motion to dismiss based on that defense.

AFFIRMED.