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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.
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

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