IN THE SUPREME COURT OF IOWA

No. 49 / 05-0980 

Filed June 9, 2006 

IN THE MATTER OF S.P., 

Alleged to Be a Chronic 

Substance Abuser, 

S.P., 

Appellant. 

________________________________________________________________________ 

 Appeal from the Iowa District Court for Dubuque County, 

Lawrence Fautsch, Judge. 

 Person subject to commitment order appeals, claiming her 

procedural due process rights were violated. REVERSED. 

 Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for 

appellant. 
2

STREIT, Justice.

Even though the court interceded with an effort at finding the 

truth, it improperly adopted an adversarial role in the proceedings. S.P. 

appeals from the district court order finding she was a chronic substance 

abuser and placing her in a residential treatment facility. She contends 

her due process rights were violated because the referee and district 

court judge took adversarial roles in the proceedings, and because the 

district court ordered her attorney to subpoena witnesses adverse to her 

interests. She also claims the court erred in finding she met the 

statutory definition of a chronic substance abuser. Because we find the 

district court assumed an adversarial role in the proceeding, we reverse 

the decision of the district court and do not address S.P.’s other 

arguments. 

I. Background Facts and Proceedings 

 S.P. is a forty-five year old female with serious health problems. 

She has had one heart attack and suffers from coronary artery disease, 

hypertension, diabetes, and obesity. She also suffers from severe 

respiratory problems that make her dependent on oxygen. On March 15, 

2005, her brother and sister-in-law (hereinafter “applicants”) filed an 

application under Iowa Code section 125.75 (2005) alleging S.P. was a 

chronic substance abuser who needed to be taken into immediate 

custody for her cocaine addiction. A substance abuse commitment 

hearing was held before a hospitalization referee on March 18, 2005. 

The applicants were not represented by counsel at the hearing, and no 

member of the Dubuque County Attorney’s office attended the hearing. 

The referee questioned the two applicants and the examining physician. 

S.P.’s attorney cross-examined each witness. S.P. also testified, but was 

not cross-examined by the referee. At the end of testimony, the 
3

hospitalization referee found that S.P. met the criteria for chronic 

substance abuse with a crack cocaine addiction. The referee ordered 

that she reside at the Julien Care Facility for complete evaluation and 

appropriate treatment. 

 S.P. appealed the referee’s decision to the district court. At the 

district court hearing, S.P. demanded a “trial de novo” pursuant to Iowa 

Code section 229.21(3)(c), instead of a review based upon the transcripts 

of the referee’s hearing.1 The district court judge ordered that a new 

hearing be scheduled so that the witnesses could be re-examined. 

 At the start of the second hearing, S.P.’s attorney objected and 

made a motion to dismiss based on the fact that there was no one to 

“prosecute” the case. The judge denied this motion. The district court 

judge proceeded to question the two applicants and, via telephone, the 

examining physician who had testified at the hearing before the 

hospitalization referee. S.P.’s attorney cross-examined each witness. 

S.P. also testified, but was not cross-examined by the judge. On May 10, 

2005, the court issued an order affirming the ruling of the hospitalization 

referee. 

 1An order of a magistrate or judicial hospitalization referee finding that a person 

is a chronic substance abuser may be appealed to the district court. Iowa Code 

§ 229.21. “When appealed, the matter shall stand for trial de novo,” and the court shall 

schedule the hearing before a district judge at the earliest practicable time. Id. 

§ 229.21(3)(c). 

There are significant differences between a “trial de novo” and a “de novo 

review.” See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978). Generally, in a “de novo 

review” proceeding, the reviewing court is restricted to the record made in the lower 

tribunal. Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983); Mason v. World 

War II Serv. Comp. Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). On the other 

hand, “in a trial de novo, the court hearing the case anew is permitted to receive 

evidence additional to that presented” in the earlier hearing. Dolan v. Civil Serv. 

Comm’n, 634 N.W.2d 657, 662 (Iowa 2001); Mason, 243 Iowa at 344-45, 51 N.W.2d at 

434. Therefore, a statute providing for a “trial de novo” in the district court 

contemplates a trial in the general meaning of the term, not merely a review of the 

agency proceeding. Dolan, 634 N.W.2d at 662. 
4

S.P. appeals, contending her right to due process was violated 

because the referee and district court judge became the applicants’ 

attorneys and presented evidence in their stead. No person or party has 

filed a brief opposing this appeal. 

In June of 2005, S.P.’s commitment was changed from inpatient to 

outpatient status. S.P. soon suffered a relapse, and a new hearing was 

held before a hospitalization referee on July 11, 2005. Once again, a 

referee concluded S.P. was a chronic substance abuser and ordered her 

back to inpatient status. This appeal concerns only the May 10, 2005 

initial commitment order. 

II. Mootness

An appeal “ ‘is moot if it no longer presents a justiciable 

controversy because [the contested issue] has become academic or 

nonexistent.’ ” In re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In 

re Meek, 236 N.W.2d 284, 288 (Iowa 1975)). We do not decide cases 

when there is no longer any actual controversy, unless we exercise our 

discretion and decide the case under an exception to the mootness 

doctrine. Rhiner v. State, 703 N.W.2d 174, 176-77 (Iowa 2005). The 

factors we consider to determine whether we will review a moot action 

are: 

(1) the private or public nature of the issue; (2) the 

desirability of an authoritative adjudication to guide public 

officials in their future conduct; (3) the likelihood of the 

recurrence of the issue; and (4) the likelihood the issue will 

recur yet evade appellate review. 

In re T.S., 705 N.W.2d 498, 502 (Iowa 2005) (citing State v. HernandezLopez, 639 N.W.2d 226, 234 (Iowa 2002)). 

The conduct of the court in an involuntary civil commitment 

hearing is of public importance. Because such hearings are a daily 
5

occurrence, questions about the proper procedures to be followed 

when the applicant is not represented by counsel are likely to reoccur. 

Also, given the time elements involved in processing an appeal, and the 

strong probability that the commitment will not continue for the length of 

the appeal process, such appeals will often be moot before the appeal can 

be decided. In re M.T., 625 N.W.2d 702, 705 (Iowa 2001); see also Tyars 

v. Finner, 709 F.2d 1274, 1280 (9th Cir. 1983) (holding court would 

review case despite appellant’s discharge from hospital because 

involuntary civil commitments “ ‘do not last long enough for complete 

judicial review of the controversies they engender’ ” (quoting Super Tire 

Eng’g Co. v. McCorkle, 416 U.S. 115, 126, 94 S. Ct. 1694, 1700, 40 

L. Ed. 2d 1, 10 (1974))). Therefore, we exercise our discretion to reach 

the merits of one issue raised in this appeal. 

III. Merits 

A. Standard of Review 

A civil commitment requires due process because it constitutes a 

significant deprivation of personal liberty. In re M.T., 625 N.W.2d at 706 

(citing Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 

L. Ed. 2d 323, 330-31 (1979)). We review constitutional claims de novo. 

In re Cubbage, 671 N.W.2d 442, 444 (Iowa 2003). 

B. Procedural Process in a Civil Commitment Hearing

Chapter 125 of the Iowa Code addresses the issue of chemical 

substance abuse. Under our statutory scheme, any interested person 

may commence commitment proceedings by filing an application for the 

involuntary commitment or treatment of an alleged chronic substance 

abuser. Iowa Code § 125.75. Upon the filing of the application, the clerk 

of court dockets the case and immediately notifies a district court judge, 

a district associate judge, or magistrate who is admitted to the practice of 
6

law. Id. § 125.77. The court then schedules a hearing not less than 

forty-eight hours after notice of the application is served upon the 

respondent. Id. § 125.78(3)(a). If the applicant requests a courtappointed attorney, the court is required to appoint one at the county’s 

expense so long as it determines the applicant is financially unable to 

employ an attorney and a court-appointed attorney “is necessary to 

assist the applicant in a meaningful presentation of the evidence.” Id.

§ 125.78(2). 

Section 125.82(4) sets forth the procedures for the commitment 

hearing: 

The respondent’s welfare is paramount, and the 

hearing shall be tried as a civil matter and conducted in as 

informal a manner as is consistent with orderly procedure. 

Discovery as permitted under the Iowa rules of civil 

procedure is available to the respondent. The court shall 

receive all relevant and material evidence, but the court is 

not bound by the rules of evidence. A presumption in favor of 

the respondent exists, and the burden of evidence and 

support of the contentions made in the application shall be 

upon the person who filed the application. If upon completion 

of the hearing the court finds that the contention that the 

respondent is a chronic substance abuser has not been 

sustained by clear and convincing evidence, the court shall 

deny the application and terminate the proceeding. 

(Emphasis added.) 

In order to commit someone as a chronic substance abuser, the 

referee or district court has to find by clear and convincing evidence that 

the person: 

a. Habitually lacks self control as to the use of chemical 

substances to the extent that the person is likely to seriously 

endanger the person’s health, or to physically injure the 

person’s self or others, if allowed to remain at liberty without 

treatment. 
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b. Lacks sufficient judgment to make responsible decisions 

with respect to the person’s hospitalization or treatment. 

Id. § 125.2(4). 

In the present case, the applicants completed a fill-in-the-blank 

application form alleging chronic substance abuse. The applicants 

signed the application and attached statements and affidavits 

corroborating their allegations. 

Upon reviewing the application, the district court judge issued an 

order that S.P. be taken into immediate custody. The judge also 

appointed counsel for S.P., ordered a physician to examine her, and set 

the date and time for a commitment hearing before a hospitalization 

referee. 

The applicants did not hire an attorney to assist them at the 

hearing.2 Likewise, the Dubuque County Attorney’s office did not 

participate in either hearing and did not present evidence on behalf of 

the applicants. Not surprisingly, the co-applicants did not take an active 

role at the hearing. They simply stood silent as the referee took charge of 

the proceeding. 

C. Were S.P.’s Procedural Due Process Rights Violated? 

S.P. contends her right to due process was violated because the 

district court judge took on an adversarial role when questioning the 

witnesses, in effect becoming the applicants’ attorney and presenting 

evidence in their stead. She argues her due process rights were violated 

 2The application form filled out by the applicants did not contain a box 

requesting that the court appoint an attorney for the applicants. See Iowa Code 

§ 125.78(2) (outlining procedures whereby an applicant can request the court to appoint 

an attorney, at the county’s expense, for the applicant). 
8

because the nature and extent of the court’s questions rose to the 

level of advocacy.3 

The issue of a referee taking on an adversarial role during an 

involuntary commitment hearing was brought before this court in In re 

R.P., 606 N.W.2d 15 (Iowa 2000). In R.P., the applicant was not 

represented by counsel and the trier of fact examined the witnesses on 

the applicant’s behalf. 606 N.W.2d at 15-16. Similar to the case at 

hand, the respondent appealed the referee’s civil commitment finding to 

this court, claiming he was denied due process because the referee took 

on an adversarial role by questioning the witnesses. Id. at 16. We 

disagreed, finding the respondent was not denied due process because 

“the referee did not display any evidence of becoming an advocate by 

such actions as extensive questioning, leading of the witness, or crossexamination of the respondent.” Id. at 17. 

The record in the present case simply does not display what 

Edmund Burke described as “the cold neutrality of an impartial judge.” 

See State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). Instead, we have a 

district court judge trying to elicit testimony that will support the 

applicants’ burden of proof. While we empathize with the court’s strong 

desire to aid the unrepresented applicants and do what is best for S.P., it 

is, as we stated in State v. Glanton, “ordinarily a dangerous practice for a 

presiding judge to contribute his efforts in an attempt to equalize what 

he perceives to be disparity in the trial ability of opposing counsel.” Id. 

Even though the court did not become a cheerleader or partisan for the 

applicants, the court assumed an adversarial role in the process by 

 3Because the district court held a trial de novo in this case, we focus our 

attention solely on the district court proceeding. 
9

picking and choosing which evidence would come in on behalf of 

the applicants.4 In the process of searching for such evidence, the court 

marshaled the evidence towards the definition of a chronic substance 

abuser. This focused questioning changed the court’s role from an 

impartial decision-maker to an advocate. 

We hold today that an analysis based solely upon the nature of the 

questions asked by the referee or district court judge is not wholly 

determinative of the issue of advocacy. We cannot provide the trial court 

a cookbook of right or wrong questions, but merely observe that any 

effective questioning will inevitably lead to the heart of the case. When 

the court itself directs the case in this way it is marshaling or assembling 

the evidence. Artfully crafted questions will not hide the court’s role in 

the proceedings at that point—the role of deciding what evidence is 

needed to prove the case and steering the case down that road. 

R.P. exemplified the rare situation where witnesses, answering a 

few open-ended questions with narrative testimony, were able to 

articulate enough clear and convincing evidence to convince the court 

that a civil commitment was necessary. But in many cases the 

applicant’s narrative testimony, along with the unguided narrative 

testimony of the examining physician, will be insufficient for a civil 

commitment. In those situations the court is prohibited from assuming 

the role of an advocate. As noted above, when the court takes an active 

role by examining witnesses on the applicant’s behalf, it begins to take 

on the attributes of an advocate. Therefore, when faced with pro se 

 4The authority of a judge to question witnesses is well established. See, e.g.,

Fed. R. Evid. 614(b); Iowa R. Evid. 5.614(b). “The authority is, of course, abused when 

the judge abandons his proper role and assumes that of advocate.” Fed. R. Evid. 614 

advisory committee’s note to subdivision b. 
10

applicants in a civil commitment proceeding, the referee or district 

court is advised to either appoint an attorney at the county’s expense 

under the guidelines of Iowa Code section 125.78(2) or warn the 

applicant at the outset that the applicant will have to prove his or her 

case without assistance from the court.5 

IV. Disposition

The trial court tried to do what was best for the health and wellbeing of S.P. However, S.P. was denied due process when the court 

became an advocate for the applicants. Although we reverse, we do not 

remand for a new hearing since S.P. is no longer subject to the May 10, 

2005 inpatient order. Any subsequent substance abuse commitment 

orders pertaining to S.P. remain unchanged by this decision. 

REVERSED. 

 5Of course, a third option would be for the county attorney to join in the 

application as a co-applicant. See In re T.S., 705 N.W.2d at 504. Also, as of July 1, 

2006, Iowa Code section 125.82 has been modified to provide “evidence in support of 

the application may be presented by the applicant, or by an attorney for the applicant, 

or by the county attorney.” 2006 Iowa Legis. Serv. S.F. 2362 (West) (emphasis added).