Citations
- 119 F. Supp. 2d 900
Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT
BENNETT, Chief Judge.
III. CONCLUSION. .941
Who pays? That question often animates legal disputes between private persons or entities, but here it animates a dispute involving an individual who has been involuntarily committed pursuant to Iowa law, his “county of legal settlement,” the governor of the state, and the director of the state department of human services. The plaintiff brought this action seeking a determination of whether the state or the county must pay for his placement at a state mental health institute. To compel that determination, the plaintiff has brought claims against the defendants for violation of his constitutional rights to equal protection and substantive and procedural due process, and disability discrimination claims pursuant to the Rehabilitation Act and Title II of the Americans with Disabilities Act. The state officials filed a cross-claim against the county seeking to compel the county to pay for the plaintiffs placement. All of the parties have now filed motions for summary judgment, which may resolve many of the claims at issue, at least in part.
I. INTRODUCTION
A. Factual Background
Although the court provided some factual background to the present dispute in its ruling on a motion to dismiss in September of 1999, see Salcido v. Woodbury County, Iowa, 66 F.Supp.2d 1035 (N.D.Iowa 1999), the parties’ factual statements in support of the summary judgment motions presently before the court provide a much more detailed picture. Nevertheless, what is presented here is primarily a statement of the nucleus of undisputed facts and essential factual disputes necessary to put the parties’ motions for summary judgment or partial summary judgment in context, rather than an exhaustive disserta-' tion of the undisputed and disputed facts as asserted by the parties.
1. Salcido’s commitment and placements
Plaintiff Maximo Salcido, who is now 61 years old, was diagnosed in 1998 as suffering from dementia — secondary to multiple etiologies — and a mood disorder. On June 29, 1998, Dr. Davidson of Sioux City Neurology wrote a “To Whom It May Concern” letter in which he noted that Salcido had disinhibited behavior and was very abusive and aggressive, that Salcido’s rehabilitation potential was poor, and that he is a danger to himself and others. Consequently, on July 8, 1998, affidavits were prepared by health care professionals pursuant to Iowa Code Ch. 229 alleging that Salcido was seriously mentally impaired and should be immediately taken into custody. The affidavits were filed on July 9, 1998, which commenced the civil commitment proceedings from which, the present lawsuit arises.
Based on the affidavits, on July 9, 1998, the hospitalization referee entered an “Order for Immediate Custody Pursuant to Section 229.11, The Code,” in which the referee ordered that Salcido be immediately detained at Marian Health Center until a hearing set for July 15, 1998. The referee also appointed attorney Wil Forker to represent Salcido and appointed Dr. P. Muller to conduct a personal examination of Salcido to determine whether Salcido was seriously mentally impaired as defined in Iowa Code § 229.1(14). Following the hearing on July 15, 1998, at which Mr. Forker appeared on behalf of Salcido and Dr. Muller’s report was entered into evidence, the referee found that Salcido was seriously mentally impaired, as defined by the Iowa Code, and was in need of immediate residential treatment as recommended by Dr. Muller. The referee also entered an order noting that Dr. Muller had recommended that, although Salcido remained mentally impaired, he was no longer in need of acute in-patient treatment. Therefore, the referee ordered that Salci-do remain at Marian Health Center pending transfer to Clarinda Mental Health Institute (CMHI), a state mental health facility.
Next, on July 27, 1998, the referee ordered Salcido transferred to CMHI. CMHI initially indicated that it would accept Salcido under court order for the next available male bed. However, in late July of 1998, CMHI informed Marian Health Center that it would not accept Salcido, because defendant Woodbury County would not authorize Salcido’s placement at CMHI. CMHI reported that the County had informed CMHI that Salcido’s placement at CMHI would violate the County’s Mental Health Services Management Plan.
An attempt to find state funding for Salcido’s placement at CMHI failed when Merit Behavior Corporation, which contracts with the State of Iowa to administer mental health funds, including Title XIX funds, notified Marian Health Center and Salcido on August 4, 1998, that the State would not fund Salcido’s placement at CMHI. Merit explained that residential services were not covered by the state’s Merit Behavioral Care Mental Health Access Plan. The County contends that neither Salcido nor Marian Health Center pursued a grievance under the procedures afforded by Merit concerning Merit’s denial of funding for Salcido’s care at CMHI.
Attempts to find an alternative placement for Salcido also failed. The hospitalization referee entered an amended order on August 6, 1998, and an amended and substituted order on August 12, 1998, transferring Salcido from Marian Health Center to a suitable nursing home, skilled nursing home, or Alzheimer’s facility. However, on August 27, 1998, Marian Health Center, through counsel, informed the referee that it had contacted eleven facilities, but all had declined to accept Salcido.
At about the same time, renewed attempts were made to obtain funding from the County for Salcido’s placement at CMHI. On August 7, 1998, Assistant County Attorney Ann Long sent the referee a letter advising him that Marian Health Center should apply to the County’s mental health funding management company, Tri-State Behavioral Health Care Association (Tri-State), for funding for Salcido’s placement. Ms. Long’s letter noted, however, that Salcido was currently receiving Title XIX benefits under the state mental health access plan, that Salci-do had a “cognitive disorder, not a mental illness,” and that Tri-State would likely deny Salcido’s application for County funds. Plaintiffs Documents in Support of Summary Judgment at 18. In response to this letter, Dr. Muller sent a letter dated August 19, 1998, to Tri-State explaining his diagnosis of Salcido’s condition and appealing the denial of funding under the County’s Management Plan.
On September 24, 1998, the referee entered an order appointing Frank Tenuta to represent Salcido in place of Mr. Forker. Mr. Tenuta and Assistant County Attorney Long exchanged letters about Salcido’s placement at CMHI, but did not resolve the situation. On October 16, 1998, Marian Health Center sent a letter to the Woodbury County Board of Supervisors requesting action on Dr. Muller’s August 19, 1998, “appeal.” On October 20, 1998, Assistant County Attorney Long sent a letter to Tri-State recommending that an intermediary appeal step be skipped in Salcido’s case and that the appeal instead go directly to the County Board of Supervisors. The County notified Marian Health Center that an appeal hearing before the Board of Supervisors regarding Salcido was scheduled for November 17, 1998. The appeal hearing was subsequently rescheduled, by agreement of the parties, to December 8,1998.
Apparently as part of its appeal process, the Board of Supervisors received a letter, dated December 8, 1998, from Dr. Dale Wassmuth, a physician reviewer with TriState, offering an alternative diagnosis of Salcido’s condition as “dementia due to other medical conditions” and “head injury with brain injury,” and concluding that Salcido had “never met full criteria for a depressive episode while free of the effects of brain injury.” Plaintiffs Documents in Support of Motion for Summary Judgment at 37. On December 18, 1998, by letter from Assistant County Attorney Long, the Board of Supervisors notified Dr. Muller of its determination on appeal. Ms. Long informed Dr. Muller that the Board had concluded that Salcido is ineligible for funding under the County’s Mental Health Services Management Plan for the following reasons: (1) Salcido’s primary diagnosis is dementia, which is excluded from the definition of mental illness in the County’s Management Plan, and the County’s Management Plan had been approved by the Iowa Department of Human Services; (2) the Board “conceived of the County’s Management Plan as the provision of services of last resort,” while Salcido, as a recipient of Title XIX funds, had not exhausted his appeal rights defined in the contract between the Iowa Department of Human Services and Merit Behavioral Care Corporation; and (3) the County’s Management Plan then in place, and made effective retroactively to July 1, 1998, “does not provide long-term residential care services for any member of the MI/CMI [Mentally Ill/Chronically Mentally Ill] population.” Plaintiffs Documents in Support of Motion for Summary Judgment at 38-39. The County contends that Salcido received full and impartial consideration by the Wood-bury County Board of Supervisors of his challenge to the eligibility decision in his case.
Following denial of his placement appeal, Salcido remained at Marian Health Center even though Dr. Muller continued to be of the opinion that CMHI was the only appropriate placement for him. The acute care stabilization unit at Marian Health Center, in which Salcido was detained, is a locked unit, and for that reason Salcido’s doctor considered it to be overly restrictive: Salcido did not have the opportunity for appropriate activities or socialization and was at an increased risk of infection. Indeed, Salcido developed pneumonia on February 14, 1999, and was transferred to a medical unit at Marian Health Center. He returned to the behavioral floor on February 25, 1999. Because of his deteriorated health, his treatment staff believed he would not be dangerous at a nursing home. Salcido was therefore discharged to a nursing home on March 3, 1999, but had to be returned to Marian Health Center on March 12, 1999, because he had become combative and aggressive. Salcido was eventually admitted to CMHI at state expense under the terms of a stipulated preliminary injunction dated May 17, 1999. He remains there at this time.
2. Mental health funding and management
The cost of Salcido’s care at Marian health Center was $950 per day, which was paid by Title XIX funding, while the cost at CMHI for fiscal year 1999 was $236.87 per day. Of the cost at CMHI, $184 per day would have been assessed to the County-
Legislation passed in 1994 requires each county in Iowa to have a county mental health services management plan, which is submitted to the Iowa Department of Human Services (IDHS) for approval. Each county’s plan for the following fiscal year must be submitted by April 1 (for example, by April 1, 1997, for fiscal year 1998, which starts on July 1, 1997). Iowa Code § 331.439(1). However, Wood-bury County’s proposed fiscal year 1998 plan was not approved prior to the beginning of the 1998 fiscal year. After requests for clarification from the IDHS, discussions and negotiations related to the language of the County’s plan, and the County’s submission of changes, the plan was eventually approved on March 17, 1998. Similarly, the County’s proposed fiscal year 1999 plan was not approved prior to the beginning of the 1999 fiscal year. Instead, the fiscal year 1999 plan was approved on December 7, 1998. Thus, the State Defendants contend that, at the time commitment proceedings for Salcido were commenced on July 8, 1998, Woodbury County was still working under its fiscal year 1998 County Management Plan. However, the County’s position, as stated in the letter from Assistant County Attorney Long informing Salcido of the decision of the Board of Supervisors, is that the 1999 plan was “retroactive” to July 1, 1998, following approval of the plan on December 7, 1998. The County’s 1999 Mental Health Services Management Plan excludes persons suffering from dementia from eligibility for services.
The County indicated in answer to discovery requests that its total budget for the fiscal year 1999-2000 is $37,598,064, and that, of that amount, $7,879,947 is for mental health. The County contracts with Tri-State for a set amount to be spent on mental illness funding. As to the State’s financing of mental health services, in 1998, pursuant to a contract between the IDHS and Merit Behavioral Corporation, Merit administered the Iowa Medicaid Managed Mental Health Care Plan, which is funded by Title XIX funds. On October 28, 1998, the IDHS and Merit entered into a new contract entitled the Iowa Plan for Behavioral Health. Under this contract, Merit Behavioral Care Corporation of Iowa administered the medical assistance program for the IDHS. The IDHS and the County both receive federal funding for programs for individuals with mental disabilities.
B. Procedural Background
1. Preliminary matters
In an attempt to compel the defendants to place him in the institution to which he had been committed, Salcido filed this lawsuit on December 18, 1998, against Wood-bury County, referred to herein as “the County,” and against Governor Thomas J. Vilsack and Jessie Rasmussen, the Director of the IDHS, referred to herein as the “State Defendants.” In his Complaint, Salcido asserted several claims. First, in claims brought pursuant to 42 U.S.C. § 1983, Salcido asserted that the defendants have violated his right to equal protection by treating him differently than similarly situated individuals; violated his right to substantive due process by denying him adequate treatment; and violated his right to procedural due process by denying him appropriate placement under state and federal law and thereby depriving him of liberty. In a claim pursuant to Title II of the Americans with Disabilities Act (ADA), specifically, 42 U.S.C. § 12133, Salcido asserted that he is a disabled person qualified for care and treatment, but that the defendants have discriminated against him by excluding him from an appropriate placement on the basis of his disability. Finally, in a claim pursuant to the Rehabilitation Act (RA), 29 U.S.C. § 794(a), Salcido asserts that he is a disabled person qualified for care and treatment, but that he has been denied access to the benefits and services provided by the defendants’ federally-funded programs for the mentally disabled. Salcido sought declaratory and injunctive relief, damages, costs, and such other relief as the court deemed appropriate.
Salcido also filed a motion for preliminary injunction on April 19, 1999. The parties agreed to the entry of a stipulated preliminary injunction on May 17, 1999, under the terms of which Salcido was admitted to the CMHI at state expense. However, under thé terms of the preliminary injunction, no party waived any defense or claim to payment for Salcido’s care, and the issue of who is responsible for payment of past and future expenses for Salcido’s care was preserved for further consideration in these proceedings.
The County answered Salcido’s Complaint on January 29, 1999. Instead of answering, the State Defendants moved to dismiss Salcido’s Complaint, on various grounds, on February 11, 1999. On September 16, 1999, the court granted the State Defendants’ February 11, 1999, motion to dismiss only as to Salcido’s equal protection claim, but denied the motion to dismiss as to the rest of Salcido’s claims. See Salcido v. Woodbury County, Iowa, 66 F.Supp.2d 1035, 1053 (N.D.Iowa 1999). Thereafter, on January 31, 2000, the State Defendants answered Salcido’s Complaint and asserted a cross-claim against Wood-bury County. In their cross-claim, the State Defendants assert that the County, as Salcido’s county of legal settlement, is mandated by Iowa Code Ch. 229 to pay for services for Salcido at an appropriate facility following commitment proceedings, but the County has failed to do so. Therefore, the State Defendants pray for declaratory judgment that the County was responsible for designating an appropriate facility to which the hospital referee could commit Salcido on July 15, 1998, when Salcido did not require care at Marian Health Center; declaratory judgment that the County is responsible for the costs of Salcido’s care at all times from the time that the referee determined that he was seriously mentally impaired and required commitment to a facility appropriate to his needs; and a determination that the County is responsible for all costs expended by CMHI for the care and treatment of Salcido since his admission to the facility and the County must pay such costs to defendant Rasmussen for the benefit of CMHI, as directed by IOWA CODE CH. 230. The County answered the State Defendants’ cross-claim on March 24, 2000.
2. The present motions for summary judgment
A second, and more comprehensive round of dispositive motions is now before the court. On July 19, 2000, Salcido moved for summary judgment on some of his claims, in part or in their entirety. First, Salcido seeks summary judgment that the County and State Defendants violated his rights to procedural due process by failing to provide adequate notice and opportunity for hearing and by failing to provide an impartial decision-maker regarding his placement at CMHI. He seeks declaratory and injunctive relief on these claims pursuant to summary judgment. However, Salcido notes that he makes no claim for damages against the State Defendants on these claims, and he contends that there are genuine issues of material fact regarding damages to which he is entitled from the County on these claims. Salcido also seeks summary judgment on his ADA and RA claims, to the extent of declaratory and injunctive relief against the County and the State Defendants. Salcido again acknowledges that he cannot obtain damages relief against the State Defendants on these claims, although he asserts that there are genuine issues of material fact regarding damages he is due from the County on these claims. The County resisted Salcido’s motion on August 11, 2000, and the State Defendants resisted it on August 14, 2000. Also on August 11, 2000, the County filed its own motion for summary judgment on Salci-do’s claims and, at least by implication, on the State Defendants’ cross-claim. The State Defendants and Salcido resisted the County’s motion for summary judgment, on August 17, 2000, and August 25, 2000, respectively. On August 14, 2000, the State Defendants filed two motions for summary judgment, one against plaintiff Salcido on his claims and the other against the County on the State Defendants’ cross-claim. The County resisted the State Defendants’ motion for summary judgment on the cross-claim on August 18, 2000. Salcido resisted the State Defendants’ motion for summary judgment on his claims on August 25, 2000. However, in his resistance, Salcido “abandoned” his substantive due process claim against the State Defendants.
Thus, while Salcido still asserts equal protection, substantive and procedural due process, ADA, and RA claims against the County, he only asserts procedural due process, ADA, and RA claims against the State Defendants. The court dismissed Salcido’s equal protection claim against the State Defendants and Salcido has now abandoned his substantive due process claims against these defendants. However, neither Salcido nor the County has put at issue either Salcido’s equal protection or substantive due process claims against the County in the summary judgment motions presently before the court. Thus, whatever the outcome of the various motions for summary judgment, these claims against the County will remain at issue.
The court heard oral arguments on the motions on October 13, 2000. At these oral arguments, plaintiff Maximo Salcido was represented by Frank Tenuta of Legal Services Corporation of Iowa, in Sioux City, Iowa. Defendant Woodbury County was represented by Doug Phillips of Klass, Stoik, Mugan, Villone Phillips, Or-zeehowski, Clausen & Lapierre, L.L.P., in Sioux City, Iowa. The “State Defendants,” Governor Thomas L. Vilsack and Director Jessie Rasmussen, were represented by Gordon E. Allen, Deputy Iowa Attorney General, and Mary W. Vavroch, Assistant Iowa Attorney General, in Des Moines, Iowa. This matter is now fully submitted.
II. LEGAL ANALYSIS
A. Standards For Summary Judgment
This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997) aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir. 2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows:
Rule 56. Summary Judgment
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.
(c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to intenvgatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Crv. P. 56(b) & (c) (emphasis added).
Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). Therefore, a court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, and give the non-moving party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). An issue of material fact is genuine if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As to whether a factual dispute is “material,” the Supreme Court has explained, “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. Furthermore, “[wjhere the unresolved issues are primarily legal rather than factual” — -as the parties assert is the case here — “summary judgment is particularly appropriate.” Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir. 1999) (citing Crain v. Board of Police Commissioners, 920 F.2d 1402, 1405-06 (8th Cir.1990)); Haberer v. Woodbury County, 188 F.3d 957, 961 (8th Cir.1999) (also citing Crain)-, Cearley v. General Am. Transp. Corp., 186 F.3d 887, 889 (8th Cir.1999) (same).
With these standards in mind, the court turns to consideration of the parties’ various motions for summary judgment. Because the issues raised in the various motions for summary judgment are inextricably intertwined, the court will take a “thematic” approach to disposition of the motions, that is, the court will consider each claim or cross-claim at issue in turn, rather than attempting to address the individual motions in turn.
B. Salcido’s Procedural Due Process Claim
The first claim at issue in all of the parties’ motions for summary judgment is Salcido’s claim of a violation of procedural due process. This claim alleges that the defendants violated Salcido’s right to procedural due process by denying him appropriate placement under state and federal law and thereby depriving him of a “liberty” interest. More specifically, Salcido contends that he is entitled to summary judgment on this claim, because, as a matter of law, the County and State Defendants violated his right to procedural due process by failing to provide adequate notice and opportunity for hearing and by failing to provide an impartial decision-maker to protect his right to an appropriate placement following his involuntary civil commitment. The court must first examine the requirements of Salcido’s procedural due process claim, then turn to the question of whether Salcido can satisfy these requirements as a matter of law, which would entitle him to summary judgment, or can generate genuine issues of material fact on this claim in order to defeat summary judgment in favor of the defendants.
1. The requirements of a procedural due process claim
“The possession of a protected life, liberty, or property interest is a condition precedent to invoking the government’s obligation to provide due process of law.” Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir.2000); Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir.1999) (“To establish a procedural due process violation, a plaintiff must demonstrate that he has a protected property or liberty interest at stake and that he was deprived of that interest without due process of law.”); Dunham.v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999) (“The analysis of a procedural due process claim must begin with examination of the interest allegedly violated.”)- Thus, Salcido must first show that he possesses the sort of protectable interest that triggers federal due process guarantees. Id.; Hopkins, 199 F.3d at 975; Dunham, 195 F.3d at 1009; Spitzmiller v. Hawkins, 183 F.3d 912, 915 (8th Cir.1999) (quoting Gordon, infra); Gordon, 168 F.3d at 1114 (“To set forth a procedural due process violation, a plaintiff, first, must establish that his protected liberty or property interest is at stake.”).
Second, where a plaintiff has a protected liberty or property interest, “[t]o establish a procedural due process violation, a plaintiff must demonstrate ... that he was deprived of that interest without due process of law.” Hopkins, 199 F.3d at 975; Gordon, 168 F.3d at 1114 (“Second, the plaintiff [asserting a procedural due process claim] must prove that the defendant deprived him of such [a liberty or property] interest without due process of law.”). “A procedural due process claim focuses not on the merits of a deprivation, but on whether the State circumscribed the deprivation with constitutionally adequate procedures.” Parrish v. Mallinger, 133 F.3d 612, 615 (8th Cir.1998). Therefore, the court must determine what .process is due in the circumstances of the case. Hopkins, 199 F.3d at 975; accord Stauch, 212 F.3d at 431; Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir.1997); Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir.1997).
2. Does Salcido have a protectable interest?
a. Sources of liberty interests
As to the first requirement of a procedural due process claim — a protectable-interest, see, e.g., Stauch, 212 F.3d at 429; Hopkins, 199 F.3d at 975; Dunham, 195 F.3d at 1009; Spitzmiller, 183 F.3d at 915; Gordon, 168 F.3d at 1114 — the Supreme Court has explained that the source of protectable liberty interests is, at least in the first instance, the Federal Constitution:
In [Board of Regents of State Colleges v.] Roth, [408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ], this Court repeated the pronouncement in Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, (1923) that the liberty guaranteed by the Fourteenth Amendment “ ‘denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.’ ” Roth, supra, at 572, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (quoting Meyer, supra, at 399, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042).
Conn v. Gabbert, 526 U.S. 286, 291, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). However, as the Eighth Circuit Court of Appeals has also explained,
The Federal Due Process Clause defines only the minimum protections required. State law, however, may recognize more extensive liberty interests than the Federal Constitution. See Mills [v. Rogers], 457 U.S. [291,] 300, 102 S.Ct. [2442,] 2448, 73 L.Ed.2d 16 [(1982)]. These state-created liberty interests are entitled to protection under the Fourteenth Amendment’s Due Process Clause. See id.
See Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir.1997) (emphasis added). “[A] liberty interest created by state law is by definition circumscribed by the law creating it.” Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir.1997) (quoting Montero v. Meyer, 13 F.3d 1444, 1450 (10th Cir.), cert. denied, 513 U.S. 888, 115 S.Ct. 231, 130 L.Ed.2d 156 (1994)).
b. The parties’ arguments
Salcido argues that he has liberty interests or substantive rights on which his procedural due process claim can be based that are drawn from both federal and state law. He contends, first, that, as an involuntarily committed person, he has a liberty interest in minimally adequate treatment pursuant to Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). He also contends that, under state law, he has a right to “necessary psychiatric services and additional care and treatment as indicated by [his] condition,” see Iowa Code § 229.23, and a right to “complete psychiatric evaluation and appropriate treatment.” See Iowa Code § 229.13; see also Iowa Code § 229.14(2) (the chief medical officer’s report to the hospital referee on the psychiatric evaluation shall state, as one alternative, “[t]hat the respondent is seriously mentally impaired and in need of full-time custody, care and treatment in a hospital, and is considered likely to benefit from treatment. If the report so states, the court shall enter an order which may require the respondent’s continued hospitalization/or appropriate treatment”) (emphasis added).
Although the County does not challenge Salcido’s procedural due process claim on the ground that he has no protectable interest on which to found such a claim, the State Defendants do. The State Defendants assert that “Salcido claims to have a liberty interest in notice and hearing on placement,” but they argue that one cannot have a liberty interest in mere procedures. See Defendants Rasmussen and Vilsack’s Memorandum Resisting Salcido’s Motion For Summary Judgment And In Support Of Rasmussen and Vilsack’s Motions For Summary Judgment Against Sal-cido And Woodbury County (State Defendants’ Brief) at 8. The State Defendants also contend that, like prisoners, Salcido has no liberty interest in a placement at a particular institution. Furthermore, the State Defendants argue that, even if Salci-do has a right to “appropriate care and treatment,” that right is a different “liberty interest” from an interest in placement in a particular facility. The State Defendants note that the pertinent Iowa statutes explicitly assign the responsibility of placement and the determination of the level of care needed by the committed individual to the chief medical officer, subject to approval by the court. Hence, the State Defendants contend that Salcido’s procedural due process claim fails for lack of any liberty interest or substantive right to which procedural due process can attach.
The court agrees with the State Defendants’ general proposition that one cannot have a liberty interest in mere procedures, at least to the extent that the Supreme Court has held that state laws setting forth procedural restrictions take on constitutional significance only if those laws contain “explicitly mandatory language in connection with requiring specific substantive predicates.” Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). However, the court does not find that Salcido has ever argued that he had a liberty interest in notice and hearing on placement, as the State Defendants contend. Rather, Salcido has argued that he has a liberty interest in appropriate treatment and placement that entitled him to the procedural safeguards, which he did not receive, of .notice and a hearing on placement. See Complaint, Claims for Relief, Section 1983 Claims at ¶ 29 (“Defendants have deprived Plaintiff of his rights to appropriate placement under state law and to liberty without due process of law.”); Plaintiffs Brief In Support Of Motion For Summary Judgment at 14-16 (identifying substantive rights upon which the procedural due process claim is based as rights to appropriate treatment in an appropriate placement). The court also does not understand Salcido to be asserting a liberty interest in placement at CMHI, as the State Defendants contend. Rather, as indicated just above, Salcido has formulated his procedural due process claim in his Complaint and in his briefs in support of and resistance to motions for summary judgment as founded on a substantive right or liberty interest in an appropriate placement — albeit one he contends, on the authority of his treating physician, can only be had in Iowa at the CMHI. This conclusion also answers, at least for purposes of this case, the State Defendants’ contention that involuntarily committed persons, like prisoners, do not have a liberty interest in a particular placement. See Freitas v. Ault, 109 F.3d 1335, 1337-38 (8th Cir.1997). That contention simply does not relate to any claim for a liberty interest that the court finds is at issue here. Rather, the question before the court is whether Salcido has a liberty interest in an appropriate placement, as he contends.
c. Liberty interests of involuntarily committed persons
“It is undisputed that ‘civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ ” United States v. McAllister, 225 F.3d 982, 989 (8th Cir. 2000) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)); accord Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (an involuntary civil commitment is a “ ‘massive curtailment of liberty,’ Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and in consequence ‘requires due process protection.’ Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).”); Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir.1998) (“[Liberty from bodily restraint is protected by the Due Process Clause of the Fourteenth Amendment [and][t]his liberty interest is implicated in involuntary commitment proceedings.”). Furthermore, in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court recognized that the liberty interests of involuntarily committed persons extend beyond the initial deprivation of liberty to retention of liberty interests in safety, freedom from bodily restraint, and minimally adequate treatment or training. The court will explore the Youngberg decision in more detail.
i. Youngberg v. Romeo. In Young-berg, the mentally retarded plaintiff, Romeo, had been involuntarily committed to a Pennsylvania state institution. See Youngberg, 457 U.S. at 309-10, 102 S.Ct. 2452. He filed suit seeking damages for injuries he suffered in the institution and for the denial of appropriate treatment, in violation of his Eighth and Fourteenth Amendment rights. Id. at 310-11, 102 S.Ct. 2452. A jury returned a verdict for the defendants, but the Third Circuit Court of Appeals, sitting en banc, reversed and remanded for a new trial. Id. at 312, 102 S.Ct. 2452. The en banc court concluded that the Fourteenth Amendment and the liberty interests protected by that Amendment provided the proper constitutional basis for the rights of involuntarily committed persons, concluding, in consequence, that the trial court had erred by instructing the jury in terms of Eighth Amendment standards. Id. However, the en banc court did not agree on the relevant standard to be used in determining whether the plaintiffs rights had been violated. Id. at 313, 102 S.Ct. 2452.
On a writ of certiorari, the Supreme Court concluded, first, that “[t]he mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.” Id. at 315, 102 S.Ct. 2452. Rather, the Court concluded that, “[i]n the circumstances presented by this case, and on the basis of the record developed to date, we ... conclude that respondent’s liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” Id. at 319 & n. 24, 102 S.Ct. 2452 (noting that, in the concurring opinion in the appellate court with which the Supreme Court agreed, the concurring judge had “used the term ‘treatment’ as synonymous with training or habilitation”). However, the court concluded that such interests were not “absolute”; rather, “whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” Id. at 321, 102 S.Ct. 2452; see also Heidemann v. Rother, 84 F.3d 1021, 1028-29 (8th Cir.1996) (discussing Youngberg in the context of restraint of a severely mentally retarded child by school system employees).
ii. Youngberg’s Eighth Circuit progeny. In Hanson v. Clarke County, Iowa, 867 F.2d 1115 (8th Cir.1989), the Eighth Circuit Court of Appeals discussed Young-berg in the context of voluntary commitment of an individual. Hanson, 867 F.2d at 1119-21. The plaintiff contended that the defendant county board of supervisors “has a constitutional duty to fund the exercise of her alleged constitutional right to placement in the ‘least restrictive environment consistent with qualified professional judgment.’ ” Id. at 1120.
The Eighth Circuit Court of Appeals rejected the plaintiffs contention, in pertinent part, as follows:
While it is clear that the Iowa statutory scheme creates a substantive right to appropriate care and treatment, neither the state law nor the liberty interests explicated in Youngberg create a substantive due process right to optimal care and treatment.
The cases relied upon by Hanson are inapposite. Youngberg recognizes that the involuntarily committed retain liberty interests in safety, freedom from bodily restraint and suitable training. 457 U.S. at 324, 102 S.Ct. at 2462 (emphasis added). Even if the Youngberg holding could be properly extended to a case such as this where the plaintiff has been voluntarily institutionalized, it would be of no help to Hanson. The rights recognized by the Youngberg Court are not absolute. The Youngberg opinion recognizes that these rights are qualified and must be balanced against important state interests. Id. at 321, 102 S.Ct. at 2461. More importantly, Youngberg recognizes a right to [“]minimally adequate training,” not optimal training. Id. at 322, 102 S.Ct. at 2461 (emphasis added). There is no question that the Oconomowoc placement is the optimal placement for Hanson. All of the parties and the experts agree on that point. She has, however, no constitutional right to such a placement. She has only a right under the Iowa statutory scheme to an adequate placement. Further, the other cases relied upon by Hanson do not hold that she is entitled to choose the least restrictive environment in a private institution and then compel the state to fund that placement. Rather, these cases hold that once an individual is institutionalized in a state institution, he or she is entitled to the least amount of bodily restraint possible under the circumstances. See, e.g., [Retarded Citizens v.] Olson, [561 F.Supp. 473,] 485 [ (D.N.D.1982) ].
Hanson, 867 F.2d at 1120. Thus, Hanson, like Youngberg, stands for the proposition that an involuntarily committed person has substantive rights or a liberty interest in “an adequate placement,” but not in a particular placement.
iii. Iowa authorities. As Salcido points out, the Iowa Supreme Court has recognized that the substantive right or liberty interest defined by provisions of the Iowa Code applicable here appear to be consistent with the liberty interest defined in Youngberg. In Jasper County v. McCall, 420 N.W.2d 801 (Iowa 1988), the Iowa Supreme Court considered an involuntary commitment case in which the person facing commitment suffered from a serious mental impairment, as defined in Iowa Code § 229.1(2). McCall, 420 N.W.2d at 801. However, the respondent’s impairment,, according to the findings of the referee, required “highly specialized and expensive treatment which is available only outside Iowa.” Id.
In McCall, the Iowa Supreme Court read Iowa Code §§ 229.13 and 229.21, which vest the referee with the power to place impaired persons in a hospital or other suitable facility, to vest the referee with the authority to place persons outside Iowa, if necessary, even though the statute was silent on that issue. Id. at 803.
The county’s reading of the statutes, limiting placement to an area where adequate treatment has been found unavailable, would be of highly doubtful constitutionality. In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the court defined the fourteenth amendment substantive rights of involuntarily committed mentally retarded persons. The court concluded that the individual’s liberty interests require that the state provide “minimally adequate or reasonable” treatment. Id. at 319, 102 S.Ct. at 2460, 73 L.Ed.2d at 39. Several courts have also held that state officials must provide the least stringent practicable alternatives to confinement of noncriminals. See Stamus v. Leonhardt, 414 F.Supp. 439 (S.D.Iowa 1976); see also Eubanks v. Clarke, 434 F.Supp. 1022 (E.D.Pa.1977); Davis v. Watkins, 384 F.Supp. 1196 (N.D.Ohio 1974); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972).
Iowa Code section 229.13 states that a person found to be mentally impaired shall be placed “in a hospital or other suitable facility.” Section 229.14 requires the facility’s chief medical officer to recommend “an alternative placement” upon finding that the mentally impaired person is unlikely to benefit from further treatment in a hospital. Nowhere in chapter 229 is either “other suitable facility” or “alternative placement” defined.
Section 229.23 seems to expressly recognize the minimum requirements defined in Youngberg v. Romeo. The statute states that a person shall have the right to “care and treatment as indicated by sound medical practice. ”
We hold that the placement authority of a hospitalization referee under sections 229.13 and 229.21 is not necessarily confined to facilities in Iowa. Placement can be ordered elsewhere when adequate treatment cannot be found within Iowa’s boundaries. We think it follows that the placement can be ordered at public expense under the same terms and conditions as would be appropriate for placements in Iowa.
A caveat is in order. The scope of this holding is limited in two important ways. It applies only to situations where adequate minimum treatment is not available in Iowa. Secondly, out of concern for the beleaguered taxpayers, out-of-state placements should be ordered only where realistically needed and should not be ordered for the routine care of persons, even those with tragically difficult problems who might be happier or more comfortable elsewhere.
McCall, 420 N.W.2d at 803 (emphasis added). Thus, McCall, like Youngberg and Hanson, stands for the proposition that an involuntarily committed person has a substantive right or liberty interest in an appropriate placement, adding that the appropriate placement is the one indicated by “sound medical advice,” even if that placement is not available in the State of Iowa.
However, McCall cannot be read to recognize a substantive right or liberty interest in placement in a particular institution, although placement at a particular institution had been ordered by the referee in that case. See id. at 803 (the referee ordered placement at the Deaf Treatment Center at the Mendota Mental Health Institute in Wisconsin). Rather, the Iowa Supreme Court upheld the placement at issue in McCall on the ground that “adequate treatment cannot be found within Iowa’s boundaries.” Id.
Although Iowa Code § 229.23(1), the provision of the Iowa Code that the Iowa Supreme Court found in McCall “seems to expressly recognize the minimum requirements defined in Youngberg v. Romeo,” see McCall, 420 N.W.2d at 803, was subsequently amended in 1989, the court does not believe that the amendment changes the impact of § 229.23(1), although the amendment does define the “minimum requirements” somewhat differently. At the time of the McCall decision, the pertinent subsection read,
Every person who is hospitalized or detained under this chapter shall have the right to:
1. Prompt evaluation, emergency psychiatric services, and care and treatment as indicated by sound medical practice.
Iowa Code § 229.23(1) (1988). The provision now reads,
Every person who is hospitalized or detained under this chapter shall have the right to:
1. Prompt evaluation, necessary psychiatric services, and additional care and treatment as indicated by the patient’s condition. A comprehensive, individualized treatment plan shall be timely developed following issuance of the court order requiring involuntary hospitalization. The plan shall be consistent loith current standards appropriate to the facility to which the person has been committed and with currently accepted standards for psychiatric treatment of the patient’s condition, including chemotherapy, psychotherapy, counseling and other modalities as may be appropriate.
Iowa Code § 229.23(1) (1999). Thus, the provision has, inter alia, been expanded to require more comprehensive care, not simply emergency care, and the phrase “care and treatment as indicated by sound medical practice” has been replaced, first, by the phrase “additional care and treatment as indicated by the patient’s condition,” with the additional requirement later that “[t]he [treatment] plan shall be consistent ... with currently accepted standards for psychiatric treatment of the patient’s condition.”
These changes, the .court concludes, change the wording, but not the essential requirement, of the statutory provision, leaving it consonant with the Youngberg requirement of “minimally adequate or reasonable” treatment. See McCall, 420 N.W.2d at 803 (quoting Youngberg, 457 U.S. at 319, 102 S.Ct. 2452). However, the substantive right defined by the provision as a whole now appears to be broader than the liberty interest defined in Youngberg. Such broadening of the substantive right, as defined by the Iowa statute, does not eliminate the statute as the formulation of a substantive right upon which Salcido’s procedural due process claim can be based. State laiv may recognize more extensive liberty interests than the Federal Constitution. See Morgan, 128 F.3d at 697 (“State law ... may recognize more extensive liberty interests than the Federal Constitution [and][t]hese state-created liberty interests are entitled to protection under the Fourteenth Amendment’s Due Process Clause.”) (emphasis added). Similarly, although Iowa Code § 229.13 has also been amended since the decision in McCall was handed down, the amendment does not change the essential requirement that a committed person be ordered to a hospital or facility “for a complete psychiatric evaluation and appropriate treatment.” Iowa Code § 229.13 (as amended in 1996), and compare Iowa Code § 229.13 (1988) (a person found to be mentally impaired shall be placed “in a hospital or other suitable facility”).
d. Salcido’s liberty interest
The court concludes that Youngberg, Hanson, McCall, and pertinent provisions of the. Iowa Code establish that Salcido has a substantive right or liberty interest in an appropriate placement, as the result of his involuntary commitment for a serious mental impairment. Youngberg establishes that a person in Salcido’s circumstances has a liberty interest in “minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” Youngberg, 457 U.S. at 319, 102 S.Ct. 2452. Hanson recognizes that same liberty interest, but clarifies that neither Youngberg nor the Iowa statutory scheme for voluntarily committed persons requires the provision of “optimal” treatment. Hanson, 867 F.2d at 1120. McCall clarifies that the Iowa statutory scheme for involuntarily committed persons is consistent with Youngberg, in that it establishes the substantive rights of such persons to a placement that can provide appropriate treatment. The present form of the statutes upon which the Iowa Supreme Court relied in McCall, this court concludes, still establish a substantive right to “care and treatment as indicated by the patient’s condition” and a “[treatment] plan [that is] consistent ... with currently accepted standards for psychiatric treatment of the patient’s condition.” Iowa Code § 229.23(1) (1989); Iowa Code § 229.13 (as amended in 1996) (requiring “complete psychiatric evaluation and appropriate treatment”). Therefore, as a matter of law, Salcido has satisfied the first requirement of his procedural due process claim, identification of a protectable liberty interest in a placement capable of providing “appropriate” treatment. See, e.g., Stauch, 212 F.3d at 429; Hopkins, 199 F.3d at 975; Dunham, 195 F.3d at 1009; Spitzmiller, 183 F.3d at 915; Gordon, 168 F.3d at 1114.
3. Did Salcido receive the process he was due?
Because Salcido has established, as a matter of law, that he has a protectable liberty interest in a placement capable of providing appropriate treatment, the court turns to the question of whether Salcido received the process to which he was due in order to protect that liberty interest. Stauch, 212 F.3d at 431; Hopkins, 199 F.3d at 975; Morgan, 128 F.3d at 699; Bliek, 102 F.3d at 1475. “Due process is a flexible concept and a determination of what process is due ... depends upon the particular circumstances involved.” Bliek, 102 F.3d at 1475; accord Johnson v. Outboard Marine Corp., 172 F.3d 531, 537 (8th Cir.1999) (“Due process is a flexible concept, and its procedural protections will vary depending on the particular deprivation involved.”). As the Eighth Circuit Court of Appeals has explained,
To determine what process is due, [courts] balance three factors: first, “the private interest that will be affected by the official action”; second, “the Government’s interest”; and third, “the risk of an erroneous deprivation of [the private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”
Wallin v. Minnesota Dep’t of Corrections, 153 F.3d at 681, 690 (8th Cir.1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)); accord Murray v. Dosal, 150 F.3d 814, 819 (8th Cir.1998) (citing Mathews); Morgan, 128 F.3d at 699 (citing Mathews); Parish, 133 F.3d at 615 (citing Mathews). The court will refer to these factors herein as the “Mathews factors.” Similarly, in Youngberg, the Supreme Court held that the liberty interests of involuntarily committed persons in adequate treatment were not “absolute,” such that “whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” Youngberg, 457 U.S. at 321, 102 S.Ct. 2452. Thus, Youngberg requires a balancing of factors similar to the Mathews factors to determine what due process protections are necessary to protect an involuntarily committed person’s liberty interest in appropriate treatment and placement.
“Although, the question of whether the procedural safeguards provided ... are adequate to satisfy due process is a question of law for the court to determine, whether the [defendant] indeed provided the [plaintiff] with such procedure is a question of fact for the jury.” Stauch, 212 F.3d at 431. However, in this case, the parties contend that the questions of the adequacy of procedural safeguards provided and the question of whether the defendants indeed provided Salcido with such procedures can be decided as a matter of law in the absence of any genuine issues of material fact.
Salcido contends that the Iowa civil commitment statutes violate the procedural due process rights of an involuntarily committed person on their face, because they require neither a hearing on placement nor determination of placement by an impartial decision-maker when the County refuses to pay for the placement ordered by the hospital referee. This contention is therefore directed at both the County and the State Defendants. Salcido also contends that the County violated his procedural due process rights as a matter of law in the circumstances of his case, i.e., as the procedures were applied, because the County provided neither a hearing nor an impartial decision-maker on appropriate placement in his case.
Assuming Salcido has the necessary liberty interest, the State Defendants contend that Salcido was not erroneously deprived of any such interest, because the commitment procedures under Iowa Code Ch. 229 provide all the process that is due. Similarly, the County contends that the statutory provisions concerning commitment and the available procedures for contesting denials of funding, by Merit under the State’s Title XIX program, and by TriState under the County’s program, provide all the process that is due in the circumstances of this case.
a. Salcido’s interest
In support of his argument that due process requires notice, a hearing, and an impartial decision-maker on placement, Salcido argues that the placement determination is necessarily intertwined with the civil commitment determination itself. Therefore, as to the first Mathews factor, “the private interest that will be affected by the official action,” see Mathews, 424 U.S. at 335, 96 S.Ct. 893; Wallin, 153 F.3d at 690, Salcido contends that an individual’s placement will be of great significance to his private interest, as it impacts directly on his liberty interest in appropriate treatment. On the other hand, the State Defendants contend that, because the person to be committed is unable to make responsible decisions, the value of any procedures that would allow him or her more input in the placement decision is questionable.
Contrary to the State Defendants’ contention, Salcido and other involuntarily committed persons undoubtedly have a very significant interest in the placement determination. It is at this point in the civil commitment process that the interest of the person being committed crosses from the initial interest in liberty implicated by being taken into custody, see Vitek, 445 U.S. at 491-92, 100 S.Ct. 1254; Addington, 441 U.S. at 425, 99 S.Ct. 1804; McAllister, 225 F.3d at 989; Collins, 153 F.3d at 596, to the interest identified in Youngberg, Hanson, McCall, and the Iowa civil commitment statutes as an interest in adequate treatment. See, e.g., Youngberg, 457 U.S. at 319, 102 S.Ct. 2452 (involuntarily committed persons have a liberty interest in minimally adequate treatment); see also supra, Section II.B.2.C. Moreover, if the court were troubled by nothing else in this case, it would be troubled by the suggestion of the State Defendants that, because a person is determined to be unable to make responsible decisions, that person has no interest in the determination of his or her placement, and the further suggestion that additional procedures to protect such a person’s interest in an appropriate placement would be of no more than questiopable value. Operating on the State Defendants’ premise, fewer procedural protections are due persons least able to protect themselves. Such a premise turns due process on its head.
Fortunately, the Iowa legislature has recognized that persons subject to civil commitment must have counsel available and, if they cannot afford counsel, have counsel appointed for them. See Iowa Code § 229.8(1). Appointment of counsel in such cases is obviously intended to protect such persons’ interests precisely be cause such persons are unable to protect their own interests, not because their interests evaporate. Furthermore, contrary to the State Defendants’ argument, the requirement of counsel for persons subject to involuntary commitment means that any additional procedures- — as well as existing procedures — would actually have some meaning in safeguarding the liberty interests of the person being committed. Therefore, persons subject to involuntary commitment have a very significant interest in adequate procedural safeguards in the determination of their placement and there would be benefits to additional safeguards, including notice and a hearing on placement before an impartial decision-maker, if present procedures are inadequate to protect their liberty interest in adequate treatment and placement.
b. The government’s interest
Next, as to the second Mathews factor, the government’s interest, see Mathews, 424 U.S. at 335, 96 S.Ct. 893; Wallin, 153 F.3d at 690, Salcido argues that neither the County nor the State Defendants have a significant interest that outweighs his own interest in notice and a hearing on placement before an impartial decision-maker, because the burden on these defendants to modify procedures to conform to due process requirements would be slight. The State Defendants, however, contend that the government’s interest in the placement of persons subject to civil commitment is significant, because of the substantial costs of mental health care borne by the state and the counties, while permitting individuals to designate where services would be received would thwart any government interest in controlling mental health care costs.
Although the court acknowledges the government’s interest in controlling mental health care costs, the court notes, first, that the Iowa legislature has already unequivocally demonstrated that the public has an interest in involuntary commitment and appropriate treatment of persons who pose a threat to themselves or others by enacting IOWA CODE CH. 229. Thus, the cost of care for such individuals is not a government interest that is sufficient to outweigh the individual’s interest in procedural protections on an appropriate placement.
Moreover, the State Defendants once again misconstrue Salcido’s contentions: He is not asse