Brummer v. Iowa Dept. of Corrections

• Decision Date: 07 May 2003
• Docket Number: No. 01-1733.,01-1733.
• Citation: 661 N.W.2d 167
• Parties: Bryan BRUMMER, Appellant, v. IOWA DEPARTMENT OF CORRECTIONS, Appellee.
• Court: Iowa Supreme Court

661 N.W.2d 167

Bryan BRUMMER, Appellant, v. IOWA DEPARTMENT OF CORRECTIONS, Appellee.

No. 01-1733.

Supreme Court of Iowa.

May 7, 2003.

Pamela A. Vandel, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Roxann M. Ryan, Assistant Attorney General, for appellee.

CADY, Justice.

Bryan Brummer was convicted of indecent contact with a child and placed on probation for two years. The nature of Brummer's conviction required that the Iowa department of corrections evaluate him under the state registration and notification system for sexual offenders. The department determined he presented a moderate risk to commit another sex offense. As an offender in the moderate risk category, Brummer was made subject to enhanced public notification of his conviction, location, and other information. He unsuccessfully challenged his classification in district court, but challenges it again in this appeal. For the reasons that follow, we reverse the decision of the district court and remand for further proceedings.

I. Background Facts and Proceedings.

In July 1998, Bryan Brummer agreed to run a grass roots community support group for adolescents with substance abuse problems in the Denison area. Approximately six months later, in January 1999, Brummer asked a fifteen-year-old female participant in the group for oral sex. The participant complied because "she had felt intimidated by Bryan." The parents of the girl reported the incident to the Denison police department after learning of it two months later. Brummer was subsequently charged with sexual abuse in the third degree, and later pled guilty to the lesser offense of indecent contact with a minor. He was sentenced to two years probation.

Brummer's conviction brought him under an umbrella of rules and regulations instituted to monitor convicted sex offenders in Iowa. See Iowa Code §§ 692A.1-.16 (2001); Iowa Admin. Code rs. 661-8.301-.305 (department of public safety (including division of criminal investigation)), 201-38.1-.3 (department of corrections), 441-103.31-.35 (department of human services).¹ One of the methods by which such offenders are monitored is a registration and notification system.² This system requires any person convicted of any of a broad range of sex offenses to "register with the sheriff of the county of the person's residence" if the offender is not "incarcerated, in foster care, or in a residential treatment program." Iowa Code §§ 692A.3(1), 692A.2(4); see also id. § 692A.2(1) ("A person required to register under this chapter shall, upon a first conviction, register for a period of ten years commencing" from the date of release from one of several custodial arrangements.). Then, depending on the registered offender's assessed risk of committing another sex offense, a differing amount of information about the offender may be disclosed publicly. See id. § 692A.13A.

To aid in assessing offenders, the Iowa department of corrections (Corrections) developed and adopted an assessment instrument that assigns a particular numerical "risk factor value" to a number of "risk factors" that are believed to be indicative of a registrant's likelihood to reoffend.³See id. § 692A.13A(1); Iowa Admin. Code r. 201-38.3(1). Each offender is assessed by a Corrections agent who assigns risk factor values based on information gleaned from a limited number of documents. Iowa Admin. Code r. 201-38.3(1). Some of the risk factor values include gradations based on the specific nature of the registrant's offense. For example, the age of the victim may result in an assessed value of twenty points (if the victim was between eleven and sixteen years of age) or thirty points (if the victim was under ten or over sixty-three). An offender earns either all or none of the points in a category unless granted a "departure" from a risk factor value or from an assessed level of risk.⁴ The departure can be upward or downward. Interpretive guidelines issued by Corrections indicate a departure "should be used in unique circumstances when the facts of the case warrant a change in score or risk level."

The goal of an assessment is to produce an accurate "total risk assessment score" for each individual offender. A score of zero to seventy indicates a registrant is a "low" risk to reoffend. A score of seventy-five to one hundred and five indicates a "moderate" risk. A score above one hundred and ten classifies an offender as a "high" risk. Those individuals at the moderate or high risk to reoffend threshold are generally considered "at risk" to reoffend. Iowa Code § 692A.13A(3)(b).

The "name, current address, criminal history, and a current photograph" of low risk offenders "may be provided to any law enforcement agency likely to encounter the registrant." Iowa Admin. Code r. 661-8.304(1)(c)(1) (emphasis added). However, this same information must be provided to appropriate law enforcement agencies for registrants "at risk" to reoffend. Id. r. 661-8.304(1)(c)(2). In addition, at-risk registrants are also subject to more extensive "affirmative public notification," which may include disclosure of a greater variety of information to a wider scope of persons or agencies.⁵ Id.

On January 9, 2001, Corrections notified Brummer that he had been assigned a total risk assessment score of eighty-five, which placed him in the moderate risk category and qualified him for heightened affirmative public notification. Brummer was assessed risk factor values based on the nature of the sexual contact with his victim (twenty-five points), the age of his victim (twenty points), his relationship to his victim (twenty points), the number and nature of his prior crimes (five points), and for a history of drug abuse (fifteen points). He was not granted a departure in any category or from his presumed level of risk.

On January 22, Brummer filed a "Notice of Assessment Findings Appeal Form" with Corrections requesting his assessment be reconsidered and lowered. See id. r. 201-38.3(4), (5); see also id. r. 661-8.304(1)(d)(1) ("Procedures for notifying a registrant of the results of a risk assessment and providing for appeals thereof shall be subject to the rules of the agency conducting the risk assessment."). He particularly objected to the assignment of risk factor values for the number and nature of prior crimes and history of drug abuse risk factors. Although he acknowledged a prior charge of possession of two grams of marijuana when he was nineteen, Brummer argued that the assignment of both categories was unwarranted due to his voluntary pursuit of drug treatment and his efforts to better his life. His appeal was denied.

Brummer then filed a petition for judicial review of the Corrections decision. He not only raised the same issues he raised in his administrative appeal, but also argued there were constitutional dimensions underlying his risk assessment that necessitated an evidentiary hearing and that the assessment of a risk factor value based on his relationship to his victim was unwarranted. His petition for judicial review was denied on September 27, prompting this appeal.

II. Standard of Review.

We typically review a district court's decision on a petition for judicial review of agency action for correction of errors at law. Greenwood Manor v. Iowa Dep't of Pub. Health, 641 N.W.2d 823, 830 (Iowa 2002). The provisions of the Iowa Administrative Procedure Act, particularly the judicial review provisions of section 17A.19(8), govern this review. Id. However, in cases such as this one, where "constitutional issues are raised, ... we must make an independent evaluation of the totality of the evidence and our review ... is de novo." Simonson v. Iowa State University, 603 N.W.2d 557, 561 (Iowa 1999).

III. The Necessity of an Evidentiary Hearing.

Brummer does not challenge Iowa's right, generally, to maintain a sex offender registry, conceding "the state has a compelling interest in protecting its citizens by giving prompt notification to potential victims and relevant caregivers with respect to registrants who are accurately determined to be at risk." Brief for Appellant at 23; see also In re S.M.M., 558 N.W.2d 405, 408 (Iowa 1997)

(recognizing the purpose of chapter 692A is "to require registration of sex offenders and thereby protect society from those who because of probation, parole, or other release are given access to members of the public"). Nor does he deny that his conviction for indecent contact with a minor required his registration with the state's sex offender registry. See Iowa Code § 692A.2(1); Iowa Admin. Code r. 201-38.3(2). Instead, Brummer challenges the sufficiency and fairness of the process with which his risk to reoffend was assessed.

Brummer argues that a moderate risk to reoffend assessment and the threatened public notification arising from the assessment impinges on a liberty interest protected by the Due Process Clauses of the federal and state constitutions by permanently and publicly branding him as a sex offender likely to commit another sex offense. See U.S. Const. amends. V, XIV, § 1; Iowa Const. art. I, § 9. He asserts that this proposed infringement entitles him to procedural due process of law in the course of Corrections' assessment process, namely notice and an opportunity to be heard in the context of a "contested case" proceeding. See Greenwood Manor, 641 N.W.2d at 834

("A contested case entitles [a party] to an adversarial hearing with the presentation of evidence and arguments and the opportunity to cross-examine witnesses and introduce rebuttal evidence."). Corrections responds to these assertions by arguing that Brummer was provided adequate notice and was not entitled to an evidentiary hearing because the administrative process underlying the assessment was "other agency action" which does not warrant extensive due process procedures. See id. ("At most, other agency action entitles affected parties to an informal hearing" in addition...