In the Matter of N.P., Alleged to Be Seriously Mentally Impaired

IN THE COURT OF APPEALS OF IOWA

No. 18-2215
Filed December 18, 2019

IN THE MATTER OF N.P.,
Alleged to Be Seriously Mentally Impaired,

N.P.,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson (serious mental impairment) and Zachary Hindman (placement), Judges.

Appellant appeals the district court’s finding of serious mental impairment,

claiming her procedural due process rights were violated. AFFIRMED.

Jason Gann and Camille S. Brown of Moore, Heffernan, Moeller & Meis,

L.L.P., Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and May and Greer, JJ.
2

MAY, Judge.

This case concerns an application for involuntary hospitalization under Iowa

Code section 229.6 (2018). The applicant alleged N.P. was seriously mentally

impaired.

Prior to a scheduled hearing, the judge had a private conversation with the

applicant’s attorney. Also prior to the hearing, the judge disclosed the private

conversation to N.P.’s attorney and the county attorney. The conversation had

been procedural in nature. And it had focused on a different case.

During the hearing, the judge allowed the applicant’s attorney to appear and

present evidence. Ultimately, the court found N.P. was seriously mentally

impaired.

N.P. filed a motion for recusal. The motion focused on the judge’s

prehearing conversation with applicant’s counsel.

The court held a hearing on the motion. Ultimately, the court concluded that

there had been no impropriety. Nevertheless, the judge elected to recuse.

So a second judge presided over a third hearing. Again, the applicant’s

attorney participated.

The next day, the court filed an order confirming the prior finding that N.P.

was seriously mentally impaired. The court also found that N.P. “remains seriously

mentally impaired.” The court ordered N.P. returned to the hospital.

On appeal, N.P. raises two procedural due process issues. First, N.P.

claims the ex parte communication denied her a fair and impartial hearing.

Second, N.P. claims the applicant’s attorney should not have been allowed to

appear and participate. We find reversal is not warranted.
3

In an involuntary commitment hearing, the respondent’s “liberty interests

are at stake.” In re M.T., 625 N.W.2d 702, 706 (Iowa 2001). So “it is imperative

that the statutory requirements and procedures be followed.” Id. If they are not, it

is our duty to reverse. See id.

We begin by addressing the pre-hearing communication. Both attorneys

and judges are prohibited from ex parte communications about substantive matters

concerning a pending matter. Iowa Ct. Rs. 32:3:5, 51:2.9(A). But here, the

communication in question was not substantive. It focused on an administrative

question about the process for filing documents. The fact that a hospitalization

hearing was scheduled was mentioned in passing. But the focus of the

conversation was a different case—an application for guardianship. Additionally,

it is undisputed that the judge promptly disclosed the conversation to N.P.’s

attorney and the county attorney.

We find no violation by the judge or by the applicant’s attorney. We also

see no reason to believe the discussion between the judge and the applicant’s

attorney had any impact on any hearing or on the ultimate outcome.1

We turn next to the presence and participation of the applicant’s attorney.

N.P.’s argument focuses on Iowa Code section 229.12, which governs procedure

1
We also question whether N.P. preserved error. Before recusing, the first judge found
N.P. was seriously mentally impaired. Then, at the hearing for placement before the
second judge, N.P. conceded that the question of whether N.P. was seriously mentally
impaired had already been decided. It was not at issue anymore. That concession
appears to waive any claim N.P. has regarding the fairness and impartiality surrounding
the finding of serious mental impairment. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on appeal.”);
see also L.N.S. v. S.W.S., 854 N.W.2d 699, 703 (Iowa Ct. App. 2013) (“Where a party has
failed to present any substantive analysis or argument on an issue, the issue has been
waived.”).
4

at hospitalization hearings. N.P. argues the district court abused its discretion

under Iowa Code section 229.12(2) when it allowed the applicant’s counsel to

participate in the hearings as a “person[] having a legitimate interest in the

proceeding.”

“[W]e review issues of statutory interpretation for correction of errors of law.”

In re D.M.J., 780 N.W.2d 243, 245 (Iowa Ct. App. 2010) (citation omitted). When

a statute grants discretion, we review for abuse of discretion. See Sheer Const.,

Inc. v. W. Hodgman & Sons, Inc., 326 N.W.2d 328, 334 (Iowa 1982).

Iowa Code section 229.12 states in pertinent part:

1. At the hospitalization hearing, evidence in support of the
contentions made in the application shall be presented by the county
attorney. During the hearing the applicant and the respondent shall
be afforded an opportunity to testify and to present and cross-
examine witnesses, and the court may receive the testimony of any
other interested person. The respondent has the right to be present
at the hearing. If the respondent exercises that right and has been
medicated within twelve hours, or such longer period of time as the
court may designate, prior to the beginning of the hearing or an
adjourned session thereof, the judge shall be informed of that fact
and of the probable effects of the medication upon convening of the
hearing.
2. All persons not necessary for the conduct of the proceeding
shall be excluded, except that the court may admit persons having a
legitimate interest in the proceeding and shall permit the advocate
from the county where the respondent is located to attend the
hearing. Upon motion of the county attorney, the judge may exclude
the respondent from the hearing during the testimony of any
particular witness if the judge determines that witness’s testimony is
likely to cause the respondent severe emotional trauma.
3. a. The respondent’s welfare shall be paramount and the
hearing shall be conducted in as informal a manner as may be
consistent with orderly procedure, but consistent therewith the issue
shall be tried as a civil matter.

(Emphasis added.)
5

We find a statute’s meaning in the “text of the statute,” the “words chosen

by the legislature.” State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017) (citation

omitted).

From our reading of section 229.12 and the record before us, we cannot

conclude the district court abused its discretion. Subsection 229.12(1) expressly

requires the court to “afford[]” the “applicant” an “opportunity to testify and to

present and cross-examine witnesses.” And subsection 229.12(2) gives the court

discretion to admit any “person” who has “a legitimate interest in the proceeding.”

If the applicant must be afforded an opportunity to testify and present evidence,

certainly the applicant’s attorney has a “legitimate interest in the proceeding.” Id.;

see Iowa Supreme Court Att’y Disciplinary Bd. v. Att’y Doe No. 762, 839 N.W.2d

620, 629–30 (Iowa 2013) (noting “witnesses are often unfamiliar with legal

proceedings and may have largely unjustified fears or concerns about potential

overreaching or intimidation that will be allayed by counsel’s presence” and finding

a witness may have counsel present during the witness’s testimony).

Likewise, if the applicant must be afforded an opportunity to “present and

cross-examine witnesses,” surely the applicant’s attorney can perform those acts

on the applicant’s behalf. See Iowa Code § 229.12(1). This process, through

which a client acts through a lawyer, is a bedrock of our legal system. It is wholly

compatible with “orderly procedure” in a case being “tried as a civil matter.” See

id. § 229.12(3)(a).

So we conclude section 229.12 grants the district court discretion to both

admit an applicant’s attorney and permit that attorney to participate on the
6

applicant’s behalf. There was no abuse of discretion here. Nor was there any

violation of N.P.’s due process rights.

AFFIRMED.