*1 g
(“[T]he underlying elective share policies OF OFFICE CITIZENS’ easily could be defeated if the
legislation AIDE/OMBUDSMAN, owning spouse could transfer a
property Appellee, personal proper- of her portion
substantial life, reduce the of her
ty during per- size sonal estate and minimize or eliminate the Department Deb EDWARDS property spouse available to a who value Corrections, Appellants. will.”). against the The assignees’ elects No. 11-1452.
policy argument properly directed to the legislature The Iowa chose to
legislature. Supreme Court Iowa. revocable trusts in the elective include Dec. 2012. 633.238(l)(d). under section share Rehearing Iowa Acts ch. Denied Jan. (adding revo- the property
cable trusts to included in the share). legis-
elective We conclude further would be required
lation to include POD in the elective share.
assets plain on the meaning oper-
Based of the statutory language
ative amended that only specifi- we hold the assets
cally enumerated section 633.238 surviving in the spouse’s
included elective POD
share. accounts and annuities are included under section 633.238. We
overrule Sieh extent it is inconsis- opinion.
tent with this Because Karen’s should not
POD assets be included share, elective
Howard’s we reverse the probate
ruling court and remand the payments
case for recalculation of owed to assignees.
IV. Conclusion. reasons, these probate
For court by including
erred Karen’s POD assets in elective probate
Howard’s share. The order is reversed and the case re- proceedings
manded for further consistent opinion.
with this
REVERSED AND REMANDED. *3 Miller, General, Attorney
Thomas J. and Hill, William A. Attorney Assistant Gener- al, for appellants. Teas, Moines,
Charles Andrew Des appellee.
WATERMAN, Justice.
The fighting issue in this appeal (ALJ) whether an judge administrative law assert the privilege to limit deposition testimony her in an inves- tigation by the Office of Citizens’ Aide/Om- (Ombudsman) budsman her ruling into a prison disciplinary matter. Deb Ed- wards, independent an ALJ within the (IDOC), Department of Corrections presided over the hearing of an inmate charged with assaulting a offi- corrections cer. guilty Edwards found the inmate assault, “B,” class imposed 180-day, penalty loss-of-earned-time that doubled the maximum ninety-day penalty pre- scribed policy under corrections but 180-day penalty requested matched the prehearing, ex parte email to her from Ombudsman, the warden. The pursuant agency to its watchdog role under Iowa (2009), chapter Code 2C launched an inves- tigation. Edwards later amended her de- cision to escalate her classification of this “A,” assault from “B” identify- without ing any factors, aggravating as required under policy. corrections subpoenaed Ombudsman for deposition testimony receiving after in- consistent explanations from her warden informal and af- man during interviews has made a sufficient discovering prehearing
ter warden’s overcome the For the reasons below, disagreed explained we affirm
email. The over wheth- the order-over- validly ruling
er assert men- Edwards’s mental-process privilege Edwards could in this
tal-process compelling deposition. to refuse to case her answer questions about her decision. See 2C.21 Background I. Facts and Proceed- (persons provide required information ings. “shall be accorded the 2, 2008,
same ex- privileges Linderman, and immunities as are On April Randy *4 courts”); in
tended to witnesses the Dodge [Iowa] inmate at Fort Correctional DeCoster, (FDCF),
State ex rel. Miller v. Facility was an involved alter- (Iowa 2000) (recognizing
N.W.2d cation awith corrections in a officer com- privilege).
mental-process parties mon area within view of other inmates.
also disagreed privilege whether the was was “verbally disruptive Linderman and by showing
overcome exter- improper physically inappropriate with correc- [the pressure
nal Edwards point on based on tions officer] that the offender dictating
warden’s email purportedly body assaulted the officer with his several
penalty independent ALJ to im- Specifically, was times.” Linderman chest Materials,
pose. bumped See Martin Marietta the corrections two officer County,
Inc. v. disobeyed Dallas N.W.2d three and times commands until (Iowa 2004) mental-pro-
554-55 (allowing guards other arrived take control. The
cess privilege upon overcome was by recorded altercation a surveillance
strong of bad faith or camera. behavior). action The Ombudsman filed an charged Linderman was violating with in district court to enforce subpoena, assaults, prison threats, prohibiting rules and filed cross-motions evidentiary and verbal abuse. An hearing summary on the judgment applicability of Edwards, on completed April 24. an the mental-process privilege and show- years’ ALJ for the IDOC with ex- twelve
ing required it. to defeat perience that capacity, presided over the hearing. She watched the video of the mental-pro-
The district court ruled the statements, incident,
cess not limit reviewed witness apply would by reviewed a written
deposition testimony in the submission Linder- Ombudsman’s hearing April man. In her decision dated
investigation, opposed judicial pro- to a “pled
ceeding. Accordingly, guilty Edwards noted Linderman district admitting angry ... at
did not he was question reach the whether the time of the violation.”
Ombudsman made Edwards found had a sufficient show- that:
ing or impropriety of bad faith over-
come Edwards and IDOC placed The offender’s behavior staff
appealed, and retained the appeal risk, we safety disrupted at memberf’s] Boone, questions impression
decide of first on operation normal and failed to
applicability privi- of the follow directives given him that
lege under these circumstances. staff member until other arrived on staff A building. the scene moved him to review,
On our we mental-pro- hold the
cess privilege guilty available to ALJs found IDOC Linderman investigation, con- sanction but class “B” assault entered a
clude, record, days disciplinary based on the Ombuds- 180 detention and 180 earned time. Her decision
days phone May loss of of Edwards 12 and June Dalmer, relying on contemporaneous his
concluded: notes, stated, very distinctly “Deb told me severity reflects the
This sanction my twice in contact with her first on this appropriate to the nature
offense and is ag- case that she believed she could have the offense.... This ALJ is also rec- gravated this case but not to.” decided that the com-
ommending classification Smith, spoke Dalmer then with Warden review the offender for a possible
mittee who told Dalmer that “the ALJ told
transfer to a more secure environment. aggravate.” she intended to On [Smith] appealed Linderman the decision to Cor- Savala, June Dalmer contacted Michael Smith, FDCF, who nell warden affirmed general counsel for the supervi- IDOC and April the decision on 28. Linderman did day, sor for IDOC ALJs. The same Ed- review, postconviction judicial seek but spoke wards with Savala and modified her complained to the Ombudsman. The Om- ruling change the classification of Lin- investigation launched an into budsman derman’s assault offense from class “B” to
whether the and Edwards followed *5 “A,” again specifically class without identi- policy law and in corrections this fying any aggravating circumstances investigation initially matter. The focused prison policy enumerated under and with- on whether the loss-of-earned-time sanc- out using “aggra- variation of the term tion Linderman received was excessive. merely vated.” Edwards added the fol- then-existing policy, a class “B” Under lowing to the disposition section: could result in loss of assault earned time The ALJ modifying is an error that up ninety days. Policy IDOC 10- occurred when submitting report (Jan. RD-01(IV)(P)(2)(a)(2)(a) 2007); see hearing, the class offense of the assault (authorizing also Iowa Code 903A.4 the (A) is an violation and is being modified develop disciplinary policies IDOC to to reflect the seriousness of the violation prisons including rules “the amount of at this time. A copy being is forwarded earned time which be lost as a result to the offender at ASP and to the War- offense”). Thus, disciplinary of each it den here at FDCF. offender’s be- days that the of 180 appeared sanction poli- havior was consistent with the DOC loss of earned time for Linderman’s class (II)(a)(P)(b). cy 10 RD-01 facially “B” assault was excessive. The Savala told Dalmer he was unable to find permitted is policy
ALJ under IDOC policy provision Edwards in cited her level,
aggravate an offense to the next but June decision. in “specify writing aggravating
is to warranting
circumstances change Dalmer noted his office had examined Policy
sanction.” IDOC IO-RD- disciplinary other sanctions and “found as-
01(III)(B). A ag- [they] nonexclusive list of six saults would deem to be more seri- policy: feces, urine, factors is included in
gravating involving ous spit, punches
(1) (2) violence, history weapon, use of led to the same sentence or lesser
(3) (4) severity injury, significant impact particular sentences than this case.” He (5) operations, decisions, repeat
to institutional in- also noted four other including (6)
fractions, premeditation. Edwards, by Id. None one which used a form of the expressly
of these factors is “aggravated” identified word when imposing more April
Edwards’s decision. severe sanctions. Ombudsman, Dalmer, continued,
An assistant Bert As the investigation the Om- unsworn,
conducted unrecorded interviews budsman learned Warden Smith had sent 2C.9(5). after alter-
Edwards an email Linderman’s section Both moved for officer, summary
cation with the corrections but be- judgment applicability hearing, disciplinary stating,
fore the mental-process privilege. The Om-
“Please sanctions to fit situation exercise argued budsman the privilege was (180 865).” The viewed only judicial proceedings, available in email as external warden’s investigatory deposition in an anof IDOC
pressure independence ALJ whose on the ALJ under chapter Aternatively, 2C. required by law. The Ombudsman ar- Ombudsman it argued had made a suffi-
gues effectively the warden dictated the showing cient defeat Ed-
penalty Edwards was to before she impose wards and argued mental-pro- hearing.
commenced the privilege cess applied showing and no had been made to it. also They defeat con- deposed
The Ombudsman Warden tended Linderman’s failure to exhaust his
Smith and Savala. The Ombudsman invit- by seeking postconviction remedies relief voluntarily ed her provide precluded investigation further the Om- testimony, but sworn she declined. Ac- budsman. subpoenaed
cordingly, the Ombudsman deposition.
Edwards for IDOC counsel granted The district court the Ombuds- letter,
responded asserting that man’s summary judgment. motion for question
Ombudsman could not Edwards The court did not decide whether the Om- “motive,
about her influences and decision budsman had made a sufficient to
making process specific disciplinary if it defeat.
case.” the parties postponed deposi- The Instead, applied. the court noted the Om- negotiated scope
tion while of the they the argument budsman “makes compelling were
testimony. Ultimately, they unable process that the applies only ‘mental rule’ the agree, and Ombudsman issued a judicial proceedings, investiga- and not
second for sworn subpoena Edwards’s tes- tions.” The court ruled that “ALJ Debo- 17,
timony on May stip- 2010. The testimony rah privileged Edwards’s is not
ulated the question Ombudsman could Ed- and the her may [Ombudsman] take sworn regarding background
wards and some testimony.” acknowledged The court itself procedural
of the pertaining issues precedent by requir- concern over the set disciplinary
Linderman but proceeding, ac- ing an deposition ALJ to submit to a ex-
knowledged object IDOC counsel would thought plaining her behind an ques-
and instruct Edwards not to answer adjudicatory ruling: regarding decision-making pro-
tions her The court is not unmindful of the con- cess. sequences precedent of that could be Nevertheless, set. ramifi- negative
The filed a petition mitigat- County precedent may
District for Polk cations this seeking Court case, by ed subpoena enforcement of the is- narrow facts of this pursuant
sued to Code that the not likely would [Ombudsman] Although appear
1. appeal. the email does issues on The incident video of the record, quote the relevant was included in the hearing referenced in Edwards's is Undisputed record; however, Ombudsman’s "Statement of Ma- not in the neither Support terial Facts in Motion for [Its] party review video would claims that Judgment.” Summary quotation help has been determine response the email was admitted in the filed privi- made to overcome party IDOC and Edwards. No contends lege. anything else in that email is relevant to the
14 against the Om- may as the De- assert the frequently ALJs as
subpoena against answered predicts. budsman must be of Corrections
partment analysis by reit- backdrop. begin We our and IDOC ordered Edwards The court obliged grant erating “that courts are deposition subpoena, comply with execu- officials a wide berth prison testimony. on her This
with no limitations needed to policies practices tion of appeal followed. security.” prison discipline and maintain Grossheim, 407. We also 498 N.W.2d at
II. of Review. Standard constitutionally that inmates are reiterate summary rulings review We impartial to an process entitled due for corrections of errors of law.
judgment proceedings. prison disciplinary ALJ in Haaften, 815 Mut. v. Van Emp’rs Cas. Co. State, 215, 533 N.W.2d 216- Thompson v. (Iowa 2012). 17, “Summary 22 N.W.2d 1995). (Iowa v. generally Botsko if there are no appropriate judgment Comm’n, 774 Davenport Rights Civil fact and the issues of material genuine (Iowa 2009) 841, (reviewing N.W.2d 848-52 judgment entitled to as a moving party is in administrative process required due court reviews of law.” Id. This matter proceedings). statutory interpretation for questions of errors at law. State v. Over
corrections 2012). (Iowa Role A. The Ombudsman’s 810 N.W.2d
bay, “Watchdog.” review district court orders
We process, including discovery Purpose Ombudsman’s office. enforcing subpoena, an ombudsman general assembly
those In established office, abuse discretion. Citizens’ which serves “as the Ombudsman’s Grossheim, dog’ agen- a ‘watch for state administrative
Aide/Ombudsman 1993). (Iowa “Abuse v. Mil-
N.W.2d cies.” Citizens’ Aide/Ombudsman (Iowa 1996). ler, be shown where there is no
discretion 902-03 *7 court’s factual con support
record to the to investi- “purpose The Ombudsman’s is
clusions, grounded or where the decision is ‘from source gate complaints received clearly that are untenable or on reasons of a concerning an administrative action’ “ ground Id. ‘A or reason agency.” (quoting
unreasonable.” at 902 Iowa state Id. 2C.12). ... when it is based on an §
is untenable States created these of- Code ” of the law.’ In re application rights erroneous of individuals safeguard fices to the (Iowa 540, 544
Gianforte, subject making, administrative
2009) Ankeny, (quoting City Graber v. agencies at a time when administrative (Iowa 2000)). N.W.2d 638 increasing presence, pow- 616 gaining were er, government. and discretion in state Statutory Framework.
III. The Frank, Legis- State Bernard Ombudsman States, Miami lation in the 29 U. previously
We have not ad United (1975) of the mental- L.Rev. 397-99 applicability [hereinafter
dressed the Frank]; Mayes, investigation by in an the Thomas A. Pro-
process privilege see also Judiciary tecting into of an IDOC the Administrative the decision from context, Vigilance, A External Pressures: Call put proper To the issue in ALJ. for (2012) Drake L.Rev. powers [hereinaf- first review the role and of 60
we will (“[T]he judi- law explore Mayes] then the ter administrative
the Ombudsman and to the function the independent ciary integral of the ALJs in the is so
duties commonly, if not question The of whether Edwards modern state that it is
IDOC. branch
accurately, responsibility referred to as a ‘fourth the to investigate com- ”). plaints any persons from government.’ partic- Frank ad- noted ministrative actions of Iowa state or lo-
ular that cal government agencies render guaran- concern for the [t]he traditional objective opinions or recommendations ty rights of the of the individual has on the complaints, the interests greater society. become even in modern resolving complaints and improving ad- The of public activities administration ministrative processes procedures. comprehensive have so become (2008). r. Admin. 141-1.1 If Code power bureaucracy great so its investigation conclusion of the com the status of the needs addi- individual substantiated, plaint the Ombudsman protection. tional may make recommendations to the admin Frank, 29 Miami L.Rev. at 398. Iowa U. and, istrative if agency its recommendation legisla-
was one of the first states to enact involves changing governing statutory tion creating the office of the ombudsman. law, to general assembly. See Sha Id. at 397. bazz, 662 at 91 F.Supp. (citing Iowa Code 601G.9, .16, §§ 2C.9, §§ now codified as major A with preombudsman issue .16); see also Iowa Admin. r. Code 141- that, system
administrative even if an (5). 2.11(3), agency complaint, had a channel
channel 2. The independence subpoena “lack and im- Ombudsman’s power. The statutory Ombudsman has au
partiality.” Id. at 398. In addition to thority investigate action, agency with individuals,
safeguarding rights of 2C.9(1). § certain exceptions. Iowa Code Ombudsman also some of the alleviates th¿ “[ijssue power This includes a sub courts, placed
burdens especially poena compel any person to appear, context of the administrative actions in- testimony, give produce sworn or docu Scurr, volving prisoners. Shabazz v. mentary or other evidence relevant to a (S.D.Iowa 1987) (“Courts F.Supp. 2C.9(5). § matter inquiry.” under special have a interest in protecting the judicial beyond branch is reach problem-solving function. [Ombudsman’s] investigatory power. Ombudsman’s This spends many Court far too hours in 2C.l(2)(a) id. (excluding litigation prisoners between and state offi- agency “[a]ny definition of or judge cials attempting remedy problems which staff’). Edwards, appurtenant prevented could have been or reconciled however, IDOC, is employed by a state *8 informally.”). agency, judicial not the As an branch.
In its role the “watchdog,” as Iowa agency employee, she falls the ex outside 2C.l(2)(a ).2
Ombudsman has for in “judges” clusion section plain language reading
2. Under a of section in an Iowa Act.” Alcor Extension Found. Life 2C.l(2)(a), Richardson, 717, (Iowa "judge” term next to "court” v. 785 722 N.W.2d branch, Ct.App.2010); judges judicial refers to in the v. not see also Mulhern Catholic Initiatives, (Iowa operating agencies. in Health ALJs state This 115 inter 2011) (“Our pretation supported by has relied is the drafter’s com court drafter’s [Comparative ments Uniform to model ombudsman acts with the comments. act.”). construing Act in language excluding judges Fault] same Iowa and courts purview. from the ombudsman’s "In the general ab assembly passed At the time the legislative history, sence of legislation, instructive Iowa Iowa Citizens' Aide there were we also predominate look to comments and statements two model acts. ombudsman Frank, purpose guide in contained Uniform Acts to See U. Miami at L.Rev. 399. act, provision our interpretation comparable passed, language of a Iowa’s when contained Roadway Ex- Rights as an Human Comm’n whether, remains
But, question (Iowa Inc., a com- ALJ, may assert N.W.2d press,
IDOC 1986)). or immu- here. prong is at issue
mon law The first See testimony. compelled against
nity we must decide Specifically, pro-
§ 2C.21 persons required (allowing authority depose has Ombudsman to as- the Ombudsman information to
vide adju- her decision an IDOC ALJ and immunities privileges “the same
sert prison inmate’s violation dicating an ... [Iowa] to witnesses are extended as re- This imposing penalties. and rules courts”). the role of IDOC analysis of quires an proceedings. disciplinary in prison ALJs to enforce an
Generally, a court is long “so subpoena, in Pris- ALJs B. The Role of IDOC Roadway adopted we test
four-factor Proceedings. Our re- Disciplinary oner Grossheim, 407. 498 N.W.2d at met.” statutes confirms governing of the view that the sub requires test The four-factor and independent are to be IDOC ALJs “ ‘(1) statutory author within the poena be quasi- adjudicators performing impartial (2) reasonably specific, agency, ity of disciplinary cases. prison role in (4) (8) burdensome, and reason unduly impartial, in- ALJs are to 1. investi to the matters under
ably relevant ” adjudicators.3 “[A]n impartial City dependent Id. (quoting at 406 gation.’ See Gell- Gellhorn’s model statute. Walter Gell- Professor found in Professor similar to that horn, ("Traditional immunization of Statute. Model Ombudsman at 160 horn's Annotated Gellhorn, 6; argues extra-judicial scrutiny n. see also Walter against See id. at 399 courts Stat- Appendix: Model Ombudsman Annotated against permitting an American ombudsman ute, Govern- American behavior.”). Ombudsmen judge’s inquire into a ed.1968) ment?, (American Assembly, 159-71 Judicial Branch consists The Iowa (reproducing Professor Gellhorn] [hereinafter court, appeals, the dis- supreme the court of Model Ombudsman Gellhorn's Annotated Statute). court, all of the courts of the clerks of trict act later served as Gellhorn’s model officers, state, report- juvenile court the American Bar Association’s the basis for ers, employees. See Iowa and all other court State Govern- Model Ombudsman Statute for Branch § The Iowa Judicial Code 602.1102. ments, published in two which was employed ALJs the IDOC. does not include chap- years of Iowa Code after the enactment Frank, 401. 29 Miami L.Rev. at ter 2C. U. Although impartiality independence are and comments reflect a The ABA's model act interchangeably, they are dis- used sometimes understanding ex- contemporaneous that the Mayes, concepts. 60 Drake L.Rev. tinct judges courts and is limited clusion for ”[I]mpartiality ... refers to 'fair- at 827 n. 1.
judicial branch. ” whereas, minded, decisionmaking,’ neutral om- the ABA’smodel The 1974 version of impartiality,’ is independence, "a ‘subset of exclu- contains an identical budsman statute ‘ "autonomy insusceptibility to external court, judge “any sion to Iowa’s for ' " influence, (quot- guidance, or control.” Compare appurtenant judicial staff.” id. Moliterno, ing The Administrative James E. 2C.l(2)(a). The com- with Iowa Code Myth, Judiciary’s Independence 41 Wake For- accompanying the ABAexclusion states: ment 1191, 1200, (2006)). L.Rev. 1202-03 est *9 An branch rests exclusion of Mayes goes discuss the intercon- on later to immunity independence and its traditional independence relationship nected between investigation; its internal review calling independence a impartiality, conference); (e.g., judicial its mechanisms protecting impartiality.” Id. at "means (viz., by profession review continuous ("If independence protector a is and, states, Bar); by review in some its degree impartiality impartiality and some judicial commissions. required of the administrative Frank, is a attribute (emphasis at 29 U. Miami L.Rev. suggest law- judiciary, I that some amount of added). with a is consistent This comment autonomy, albeit to making independence and found in the comments similar discussion right imposed by
tribunal is a fundamental So they aligned are not with anybody process [prison] disciplinary pro- facility
due
they’re
that’s—
ceedings.”
The director of the IDOC is reporting anyone to the warden or else.
required appoint “independent” ALJs to They report to maintain judi- me to
preside prisoner disciplinary over hear- independence. cial (“The ings. § Iowa director Code 903A.1 Thus, counsel, general IDOC’s of the Iowa department corrections shall warden, ALJs, hires and fires ap- appoint independent administrative law proves leave, their vacation and sick
judges whose duties shall include but are performance. conducts evaluations of their review, provided not limited to in sec- quasi-judicial 2.IDOC ALJs act as 903A.3, tion of the conduct inmates in prison disciplinary proceed- officers (Em- department.” institutions under the ings. quasi-judicial The role played by 903A.3(1) (“[T]he added.)); phasis id. IDOC ALJs is confirmed review of independent judge may administrative law prison disciplinary process. order forfeiture of all earned prison disciplinary process begins added)). time-” (Emphasis IDOC’s ad- upon discovery of an inmate rule violation. regulations require ministrative ALJs to Prison staff required members are to pre- be impartial and to make their decisions pare disciplinary with report the follow- “solely on information obtained ing information: hearing process.” Iowa Admin. r. Code rule(s) violated; Specific 1. 201-50.21(4)(6)(13) added); (emphasis id. 201-50.21(4)(6 2. A )(10);4 statement charge;
r. Policy IO-
RD-01(IV)(D)(11); also Thompson, see behavior; Any 3. unusual prisoner (discussing 533 N.W.2d at impar- 216-18 witnesses; 4. Any staff ALJs).
tiality required of IDOC 5. An explanation of the event that involved, includes who was what tran-
Significantly, preserve indepen- their spired, and the time and location of the
dence, report IDOC ALJs to and are su- occurrence;
pervised by general counsel for the Any 6. physical
IDOC rather than warden. evidence and its dis- See Iowa 1.8(6)(e). position;
Admin. Code r. [and] Savala 201 —
testified as follows: taken, Any action in- immediate cluding the use of force. requires
[T]he Code we have )(3). 201-50.21(4)(6
independent law id. r. judges impartial administrative An they
at the report investigation facilities and to me in must begin the violation general
Des Moines as counsel twenty-four to main- within of when the viola- hours
tain that independence. why That’s I’m reported. tion first See id. r. 201- (4)(6)(4).
their supervisor. 50.21 section.”). degree, necessary judges appointed pursuant lesser for the adminis- to this (Footnotes omitted.)). judiciary.” trative particular, In the Code of Administrative Judi- Conduct, express language cial which its employed by
4. We note that ALJs the IDOC applies presiding in contested officers cases subject governing are not to certain laws ALJs 17A.11, govern under section does not agencies deciding in other state contested conduct of AUs for the IDOC. See Iowa Ad- chapter cases under Iowa Code 17A.See Iowa *10 min. Code r. 481-10.29. ("Sections § Code 903A.1 10A.801 and apply 17A.11 do to not administrative law disciplinary hearing must “be con- that the factors or cir- Judge
The determines days, excluding of an serious no later than seven cumstances offense are more
ducted holidays, following offense, the re- charged may and than
weekends the the sanction Id. r. alleged of the rule violation.” Id. IO-
port upgraded be the next class.” )(8).
201-50.21(4)(6 RD-01(III)(B). The must prisoner If the such a ALJ makes determination, a written statement the
“receive “specify then she must description including a of the
charge(s), aggravating circumstances writing rule(s) specific and violated
incident warranting change in sanction.” Id. prior disciplin- least 24 hours
... at “[ajggravating states that fac- policy IDOC 201-50.21(4X6)(6). hearing.” Id. r.
ary include, to, may tors but are not limited “present is entitled to at prisoner
The violence, history weapon, severity use of hearing, prisoner unless the waives injury, significant impact to institutional right in threat to the writing or is a infractions, repeat premed- and operations,
security safety facility.” and of the Id. r. Id. itation.”
201-50.21(4X6)(7). prisoner The also report prepared A of the copy present “to make a statement and entitled given prisoner. must then be ALJ documentary hearing evidence at the and 201-50.21(4) See Iowa Admin. Code r. witnesses on their behalf unless to call (6 )(14). prisoner twenty-four The has to securi- calling witnesses creates a threat “appeal jail hours to decision safety facility.” Id. r. 201- ty or or r. 201- designee.” administrator Id. 50.21(4X6Xll). 50.21(4)(c); see also Iowa Code disciplin- over a presiding prison
When 903A.3(2). However, § prison- even if the hearing, the ALJ the evi-
ary considers decision, appeal not er does IDOC report with presented writes a
dence regulations provide appeal, for automatic and the “supporting her reasons.” jail “the or whereby desig- administrator 201-50.21(4X6)(14). r. Linderman See id. required] disciplinary nee to review all [is charged with assault. Under IDOC hearings dispositions to ensure con-
policies, with formity jail policy proce-
an offender commits assault when the 201-50.21(4) Iowa dures.” Admin. Code r. intentionally
offender causes or threat- (6 )(15). jail The administrator FDCF injury person cause or
ens another appeal, is the warden. On the warden any physical or offensive
applies force affirm, “may modify, either remand for (i.e. urine, feces, saliva, substance mu- errors, or procedural corrections re- cous) any per- or other item against 903A.3(2). § verse an order.” Iowa Code regardless injury occurs.
son However, may the warden increase IO-RD-01(IV)(P)(4)(2). Policy Id.
IDOC sanctions issued the ALJ. After exhausting differentiates
policy between two classes of the administrative remedies 903A.3, An “A” “if provided
assaults. assault is class [a] Code section or
weapon potentially bodily prisoner infectious who claims that the “reduction
fluids, secretions, tissue, pursuant excrement 903A.1 sentence to sections been unlawfully used.” Id. All assaults 903A.7 has been for- through
[has] other However,
are class “B.” postconviction under seek review un- IDOC feited”
policies, 822.2(1)(f).5 “[i]f Law 822. Id. chapter Administrative der doctrine, party argued allowing requires Edwards and which haustion investigation go challenging Ombudsman’s forward action to ex- administrative would principles undermine the of the ex- of its administrative remedies before haust all
19 mind, statutory backdrop With this in deleterious effect on independence of analyze now turn to whether an IDOC
we ALJs.” We Id. share these concerns here. can men-
ALJ such as Edwards assert the process “The mental privilege is a corol- tal-process privilege during an Ombuds- lary to the deliberative process privilege man’s investigation. that protects uncommunicated motivations Cate,
for a or policy decision.” Thomas v. Privilege. IV. The Mental-Process 1012, (E.D.Cal.2010) 715 F.Supp.2d 1024 (internal omitted). quotation marks Both We men- begin with an overview of the qualified privileges are “that be over- tal-process been long “It has litigant.” 1025; come a Id. at Martin recognized attempts probe to Marietta, 675 (recogniz- N.W.2d at 554-55 thought making and processes ing mental-process privilege may be over-
judges generally and administrators are by strong come showing of bad faith or Shalala, improper.” v. Grant 989 F.2d misconduct). contrast, By judicial de- (3d Cir.1993) 1382, 1344 (citing United liberative is In absolute. re En- 409, 422, 313 61 Morgan, States U.S. Subpoena, 162, a 463 Mass. forcement of 999, 1429, 1004-05, 85 L.Ed. S.Ct. 1435-36 (2012) (“This 1022, 972 N.E.2d abso- (1941)). ‘“the The Grant observed lute privilege covers a mental im- judge’s adjudication process agency currently is pressions thought and reach- structured so as assure that the [ALJ] decision, ing judicial a whether harbored judgment exercises his independent internally or memorialized other non- him, pressures evidence before free from materials.”). public or within the other officials ‘ ... com- agency’ “functionally leading role] case for [in (cita-
parable’” judge.” case, to that privilege Morgan. In that omitted) Economou, (quoting
tions Butz v. Secretary Agriculture entered an order 478, 2914, 513, 2894,
438 U.S. 98 S.Ct. 57 following quasi-judicial proceeding set (1978)).
L.Ed.2d We note the maximum rates charged by agen- market
same is true of role of ALJs in City stockyards. cies at the Kansas Mor- Grant,
prison disciplinary Judge gan, cases. In 313 U.S. 61 S.Ct. at
Alito allowing discovery cautioned that into L.Ed. at 1430-31. In challeng- an action court, thought ing
the ALJ’s have a processes “would the order federal the Secré- pursuing provides review that action in court. The Ombudsman the citizen with State,
Aschan v. 792-94 agent expert impartial an who acts (Iowa 1989) (holding prisoners ex- must informally, delay, without time without cost haust all administrative remedies before seek- complainant, to the and without the re- review). ing postconviction Whether Linder- quirement adversary pro- of counsel or an judicial man exhausted all administrative and ceeding, to determine whether the com- determining remedies is irrelevant by government, plainant wronged has been investigate authority the Ombudsman has and, so, to if recommend corrective action. the administrative As IDOC and Ed- action.. replace supplements He and does not exist- acknowledge, wards permits Iowa Code ing institutions. investiga- the Ombudsman undertake such L.Rev, Frank, (emphasis U. Miami at 399 regard finality tions “without Thus, added). provision, under this the Om- 2C.9(1). administrative Iowa Code action.” power investiga- budsman's an pursue This commence authorizes the Ombudsman to investigation agency dependent upon separate independent tion of action is not judicial remedy avail- complainant administrative whether the seeks administrative complainant, able to the consistent with the agency review action. Ombudsman’s role:
20 Thus,
tary, government’s objection, over was persons acting quasi- in a 421-22,
called as a witness. Id. at 61 S.Ct. capacity generally are immune 1004, L.Ed. at 1435. ques-
at 85 “He was compulsory discovery into the mental length regarding process by
tioned at processes behind their decision making. id.;
which he reached conclusions of his Gianforte, In re 773 N.W.2d at
order, including the manner and extent of (holding 549 school board members who 422, study
his
the record....”
Id. at
61
terminated teacher could not
compelled
be
1004,
S.Ct. U.S. interrogatories); to answer Martin Mar held the
Supreme
Secretary
Court
“should ietta,
(members
never have been to this examina- adjustment board of generally cannot be “ tion” and admonished that ‘it was not the deposed as to “the mental of ... processes probe
function of the court to the mental how they reached their decision” without a ” Secretary.’ Id. (quoting strong showing of bad faith or misconduct States, 1, 18,
Morgan v. United 304 U.S. privilege). sufficient to defeat the Accord 776, 1129, 82 58 S.Ct. L.Ed. 1132 ingly, we look to whether Edwards func
(1938)). stated, Morgan Court “Just quasi-judicial tioned in a capacity Lin- be judge subjected
as a cannot to such a derman’s case to determine whether she
scrutiny, integrity so the of the administra- may assert the mental-process privilege. equally must be process respected.” tive One test articulated our court 1004-05, 61 S.Ct. at
Id. at 85 L.Ed. at determine whether a tribunal [or indi- omitted). (citation 1435 exercising quasi-judicial vidual] applied mental-process privilege
We function is whether questioned “the act DeCoster, large-scale hog
in DeCoster. involves a proceeding in which notice responsible
producer spills, for manure opportunity to be heard are re-
challenged the Environmental Protection quired;” or whether a “determination of (EPC) decision to refer
Commission’s vio- rights requires is made which pollution
lations of the state laws to the the exercise of discretion in finding facts
attorney
general
prosecution. DeCost-
applying
the law thereto.”
er,
vote, prevented and also DeCoster from ary above, hearing. As pre described she calling the other commissioners as wit- sided over hearing, his findings made as to We nesses.” Id. concluded the district rules, his of prison violation imposed “plainly acted within its broad dis- penalties. Additionally, Linderman was to limit the cretion examination of the required given to be notice and an oppor concerning commissioners their mental tunity heard. processes in reaching their referral deci-
sions.” Id. “type We noted that of exami- We next decide whether Edwards rejected ...
nation century over half a invoke the privilege to limit
ago by the Supreme States questioning by United Court in an in-
in [Morgan vestigatory ].” Id. deposition. Privi- Does the Mental-Process them protects against inquiry
A. into how Apply
lege they in the Ombudsman’s Investi- reach their decisions based upon Marietta, ruled
gation? suspicion.” The district court Edwards mere Martin 675 mental-process privi- not invoke the
could N.W.2d at (quoting Wright 554 v. Indus. because, Comm’n, 653, 531, as the Ombudsman contend-
lege 10 Wis.2d 103 N.W.2d
ed, privilege judi- (1960)). available in only “However, that presumption 535 that disagree. We Section proceedings. cial may by ‘strong be overcome a showing of ” is dispositive. pro- That section
2C.21 bad faith or behavior’.... improper
vides: (quoting Citizens to Preserve Overton Park, 402, person required the citizens’ Inc. v. 401 by Volpe,
A aide U.S. 91 814, 825, provide paid
to information shall be the S.Ct. L.Ed.2d 28 155-56 (1971)).
same fees and travel allowances as are Our focus in this case is on “im whose attendance
extended witnesses proper by behavior” the warden and Ed required been in the district courts
has wards. Black’s Law Dictionary lists two employees
of state. and of “[i]ncorreet; this Officers definitions for “improper”: agency
an shall not be entitled to such unsuitable or and irregular” “[fraudulent who, person and A
fees allowances. otherwise wrongful.” or Black’s Law or compulsory
with without service of (9th ed.2009). Dictionary 826 “Improper
process, provides documentary oral appears behavior” in the definition of by the requested
information citizens’ “misconduct,” which is defined as der “[a] shall be privi-
aide accorded the same of duty; improper eliction unlawful or be and are
leges immunities as extended to havior.” Id. at 1089. state, in the this witnesses courts of party seeking to make a strong A accompanied shall also be entitled to be showing of improper justify behavior to advised while being counsel disregarding mental-process privilege questioned. allegations must make more than “bare added). (emphasis Iowa Code 2C.21 We conclusory statements.” Kholeif plain language enforce the of the statute Exam’rs, Bd. Med. 806 of and conclude the district court erred in 1993). (Iowa litigant “point must
ruling mental-process privilege is cate- objective facts sufficient to convince a rea gorically during deposition unavailable tes- bias sonable fact finder that exists.” Id. at timony in an investigation. Ombudsman’s statutory (enforcing requirement of We hold ALJs are entitled affidavit bias claim to supporting obtain in an mental-process privilege assert closed-session deliberations of board of investigatory deposition Ombudsman’s ab medical examiners in license-revocation strong bad faith or im showing sent a of proceeding). Notably, this does not re proper behavior to overcome sufficient party conclusively prove quire there next whether a We address suf improper behavior. In Martin Mar- showing ficient was made overcome Ed “preliminary showing iettawe noted a
wards’s assertion of the in this be behavior” would sufficient to case. inquiry mental allow into the 555;
B. Did the Ombudsman Make N.W.2d at board members. 675 see Koch, Strong Showing Faith or Im Bad also McGoldrick v. F.R.D. (S.D.N.Y.1986) (“[Wjhere
proper ‘presump party Behavior? “There is a has regularity prima
tion of that the attaches de made deci facie agencies’ agency
cisions administrative or a officer is sion party seeking to make a strong showing of improper behavior to justify disregarding respect, tive. In that appeal differs
A Marietta, sufficient
privilege make more than “bare allegations and conclusory statements.” Kholeif v. Bd. of Med. Exam’rs,
ing, mental-process privilege limits the requisite showing had been made. questions counsel ask the as- party
serting privilege. Generally, case, In applied that Martin Marietta for
questioning “is ‘limited to information con- permit county conditional use
cerning procedural steps may that be denied, adjustment, board of which was
required law and does not extend to even it though approved had a similar
inquiries into the mental of an application for neighboring property. which, being part
administrator
Marietta,
Martin
judgmental process, are not discover- Martin Marietta argued
key
that a
wit
” DeCoster,
able.’
& Inc. v. Minn. previously support voiced his for Martin Council, Quality
Envtl. 266 N.W.2d application, Marietta’s “did about face” (Minn.1978)). DeCoster, In upheld we allegedly because he “had been threatened mental-process privilege because the job.” with the loss of his at Id. in that
record case was “devoid of attorney Martin Márietta’s filed an affida
proof political even a hint —of influ- attesting vit that what was McConnell told —or affecting the
ence deliberations at issue.” him; McConnell filed his own affidavit de
Id. nying the conversation took place. Id. Martin Marietta sought depositions of contrast, case, By in this the Om McConnell and members of the board undisputed budsman contends facts in the adjustment and board of supervisors “to
record establish a sufficient to determine whether undue influence had overcome the Edwards and been exercised.” Id. IDOC contend otherwise. The district did not decide whether the requisite The district court granted county’s
showing was made erroneously because it protective motion for prohibit order to privilege
concluded the is unavailable dur depositions of the board members. Id. at
ing investigation. reversed, an Ombudsman’s that, Ordi 553. We concluding al-
narily, we do not decide issues not reached though Martin Marietta had failed to make court, the district but we affirm an a sufficient showing of bad faith or impro- grounds supported
order alternative by priety to defeat the mental-process privi- record and urged below. See lege stage, Venard at that it depose was entitled to Winter, (Iowa 1994) 163, 165 524 N.W.2d the board members regarding their com-
(“[A] party successful need not cross-ap munications. way, at 554. “In that
peal preserve error on a ground urged Martin Marietta would at least have the ignored
but or rejected by the opportunity district preliminarily establish that
court.”). Here, positioned we are well Adjustment to Board of members were in-
do so because the already subject briefed improper deed influence that (“Un-
this issue before the district might court and on have led to its decision.” Id. party no
appeal, requested allowed, has the oppor discovery less such is how else evidence,
tunity to offer additional and un could Martin prelim- Marietta make such a
disputed facts the record are inary showing?”). determina noted a prelim- We
inary showing improper influence the requisite showing establish to over- suspicion a mere
“would more than come Edwards’s assertion the privilege. pre- judgment
would our overcome the Significantly, it undisputed the war- Id.; sumption In regularity.” see also prehearing den sent a email Subpoena, 972 re N.E.2d Enforcement of stating, “Please exercise sanctions to fit (clarifying deliber- (180 365).” situation We cannot con- preclude inquiry ative does done ex parte such communications from a judge subjected “into whether a ALJ, warden to whose indepen- ex ‘extraneous influences’ or mandated, statutorily dence is particularly parte during communications the delibera- when the warden himself is to hear the [because,] definition, process [b]y
tive such Botsko, appeal. inmate’s pro- ... communications lie outside (“The at 853 combination advocacy *15 sphere judge’s tected delib- internal adjudicative functions appearance has the erations”). of fundamental in the unfairness adminis- trative process.”); see also Admin. Marietta, Thus, in Martin we remanded (13) 201-50.21(4) (b) Code r. (requiring depositions case to allow of the quasi- ALJs to make their “solely decisions on in proceed decision makers to information obtained in hearing pro-
stages: cess”); Mayes, 60 Drake L.Rev. at 829 On district al- remand the court shall (“In the judi- context the administrative discovery low ... depositions limited ciary, Supreme Court has stated that with there was communication administrative hearing officers are to be the Board of Adjustment members pressures ‘free from by the or oth- what that communication was. If ” er officials within the agency.’ (quoting district court determines that Martin Butz, 438 U.S. at S.Ct. Marietta has a that such made 920)). impropriety L.Ed.2d at The facial communications were or made of the warden’s email to is all Edwards faith, in bad it allow Martin Mariet- troubling statutorily more because he is inquire ta to into mental prohibited from sanctions increasing on Adjustment of the in Board of members 903A.3(2). appeal. See Iowa Code We reaching their decision. email, conclude this in combination with Marietta,
Martin
propriate in that case because whether (1)
improper ex parte undisputed communications had oc The other facts include: sharply disputed
curred was in the initial record Edwards’s sanction doubled the al- appeal, leading thus us to conclude that for time lowable sanction loss earned yet
Martin Marietta had made a suffi class “B” assault and matched the war- (2)
ciently strong showing. Id. at suggested penalty; 554. Allow den’s the assault
ing depositions bodily limited provided weapon on remand did not involve a fluids to (3) opportunity justify penalty
Martin Marietta the no imposed; make other listed; (4) protecting privilege aggravating
record while un factors were changed
less and until the district determined Edwards the assault class “A” adequate showing investigation
an had been made after the Ombudsman’s com- contrast, case, menced, it. By listing
overcome without enumerated
undisputed existing using “aggravated” facts in the record factors or the term in other decisions. The Ombudsman
seen We hold the Ombudsman is entitled to argues
also Edwards told the assistant depose only regarding Edwards not her informal, twice in unsworn
Ombudsman communications with the warden and oth- aggravate
interviews that she chose not to ers, but thought pro- also her decision,
her initial while warden stat- explain cesses to her decisions in Linder- aggravate
ed she intended to the assault to disciplinary proceedings. man’s along. give weight
a class “A” all We no statements, however,
to these because Ed- V. Conclusion. not stipulate
wards did or otherwise admit We hold administrative law in the judges statements, making those and the assis- department of are corrections entitled to tant Ombudsman submitted no affidavit assert mental-process privilege attesting that such statements were made investigation, privi- but that rely Edwards. We instead on the un- lege may upon strong be overcome show- disputed evidence the record. ing of bad faith or misconduct. For the explain alone can whether the above, explained reasons the Ombudsman prehearing
warden’s email or later commu requisite showing has made the to over- influenced her
nications decisions as to come Edwards’s assertion however, discipline;
Linderman’s she can as to her decision in disciplin- Linderman’s *16 so revealing
not do without her mental ary proceeding. We therefore affirm the
processes. Edwards and have de district overruling court’s order her men- mental-process privi
clined to waive the tal-process privilege compelling her to voluntarily.6 As the court lege observed in submit to deposition. the Ombudsman’s Pacifica, City Pacifica,
North LLC v. AFFIRMED. important the most “perhaps factor de termining whether the process deliberative justices ZAGER, J., All except concur should be
privilege overcome the avail [is] who dissents. ability unavailability or comparable evi ZAGER, (dissenting). Justice from other F.Supp.2d dence sources.” 274 (N.D.Cal.2003).
1118, 1124 This factor I concur in majority the well-reasoned supports overcoming
further Edwards’s opinion where it recognizes that the ad- mental-process privilege. Compulsory tes (ALJs) judges ministrative law in the Iowa timony why from an ALJ as to she made a (IDOC) Department of Corrections are en- particular be a last resort. should titled to assert the mental-process privi- Here, the Ombudsman has no other means lege response Ombudsman’s re- independence to ascertain whether her quest investigatory for an deposition. I by compromised improper influence. agree also privilege that this is not abso- lute and may be overcome strong
We conclude Ombudsman has made showing of strong showing required “improper “bad faith” or behav- overcome respectfully ior.” But I mental-process privilege.
Edwards’s Ac- dissent from the
cordingly, decides, majority’s opinion district court did not abuse when it on this record,
its discretion overruling Edwards’s that the Ombudsman made has
mental-process privilege ordering strong her showing of bad faith or im- other
to submit to the Ombudsman’s deposition. proper behavior on
part
of Edwards
mental-process privilege
can be waived
waive
deliberative
to defend
by
na,
Subpoe-
holder. In
its
re
allegations
partiality).
Enforcement of
(noting judge may
wards is such, it is impossible to conclude this that attaches regularity to the decisions record that Edwards acted or improperly agencies protects them administrative Marietta, in bad faith. See Martin inquiry they into how their against reach N.W.2d at 557 (remanding to allow ex- based on suspicion.” decisions mere panded discovery, rather simply than al- Materials,
Martin Marietta Inc. Dallas lowing mental-process privilege to be (Iowa 2004)
County, 675 N.W.2d voided, plaintiff as the had not made a (citation omitted). quotations and internal showing sufficient of bad faith or improper
However, while the majority has concluded behavior). I would decline to decide this undisputed facts in the estab record existing issue on the record. “strong faith
lish a of bad or behavior” sufficient to overcome I. Standard to Overcome Mental- disagree. privilege, I Privilege. Process Most the district did significantly, Preliminarily, I think it is findings important
not reach issue. It made no issue, define the standard the
of fact or conclusions of law on this Ombudsman must surprising considering
which not the meet in order determine whether the develop did on this Ombudsman has met that record standard.
issue, concentrating instead on whether Defining A. Improper Bad Faith or privilege applied to ALJs not. Gen majority Behavior. The accurately de- do erally, not review that have “[w]e issues behavior,” “improper fines and I concur *17 by not been raised or decided district with that definition. In order to demon- Dewitt, 460, court.” State 811 N.W.2d strate bad faith or improper behavior suffi- (Iowa 2012). 467 cient to overcome the mental-process privi-
Whether the decid- applied lege, was the Ombudsman must demonstrate court, by
ed district although incor- that Edwards’s actions consisted of behav- “[i]ncorrect[,]
rectly. and ior adequate Without record that was or unsuitable by court, irregular”
decision district should “[fraudulent we or or otherwise reach wrongful.” Dictionary
decline to the issue of See Black’s Law (9th ed.2009)
Ombudsman has (defining demonstrated sufficient 826 “improper”).
objective Further, facts to convince a reasonable the Ombudsman to “point must objective
fact finder Edwards acted in bad faith facts sufficient to rea- convince a
or acted improperly. Clearly otherwise sonable finder that fact bias exists.” Exam’rs, the Ombudsman has not its in- v. Bd. Med. 497 exhausted Kholeif (Iowa 1993). 804,
vestigative opportunities. N.W.2d 807
“It appel- Improper is a fundamental B. or doctrine Bad Faith Behavior
late that issues ordinarily review must be the Decision Maker. The majority and analysis
both raised decided district “improper focuses its on behavior
court we will on ap- by before decide them the warden law [administrative Senecaut, 532,
peal.” Meier v. judge] I Edwards.” believe this focus (Iowa 2002). broad,
537 only “[I]t is not a sensible but improperly too also appellate analyze expands analysis
exercise review to im- bad faith or
facts of an issue ‘without the benefit to proper behavior the actions of third
26 (2d 7, Cir.1997)
parties contrary existing prece- Hoffman, federal 132 F.3d 14 precedents. (“[A]n
dents and our own The stan- investigation by extra-record
dard articulated
Citizens to Preserve
reviewing
appropriate
when
402,
Volpe,
Parle v.
401
91
Overton
U.S.
strong
there has been a
sup
814,
(1971),
S.Ct.
ing Supreme United States Court part agency behavior on the adopted by this court in Martin Marietta makers or where the absence of formal Kholeif, focuses whether the deci- findings administrative makes such investi improperly. sion maker acted Citizens gation necessary in order to determine the analyzed
Preserve
Park
Overton
the deci-
reasons for
agency’s
(emphasis
choice.”
Secretary
sion of the
of Transportation
added)) (citing Citizens to Preserve Over
specific
dealt with issues
to a
situation
Park,
420,
825,
ton
at
members7 overcome the ate. Id. significantly, Just as the Ombuds- added.)). regularity.” (Emphasis In citing man rely cannot on a showing that “strong showing of bad faith or im warden improperly acted to pierce the standard,
proper behavior” Martin Mar mental-process privilege. Only the actions
ietta relied on a group of federal in cases majori- Edwards are at issue here. The
addition to Iowa cases. Id. One of these ty appears expand analysis on our prior equally specific
cases was that it is the cases, of these prece- and overrule our maker that must show in bad faith dents in process, reaching
order for the in privilege to its conclu- pierced.
be See Nat’l Soc’y Audubon v. sion. Adjustment
7. The Board of members were the decision makers Martin Marietta.
27 System. Disciplinary Prison II. would assist a district court in determining whether she bad faith exhibited or improp- the prison It must be noted that disci- er behavior and would follow our prece- system to the crimi-
plinary is not identical plaintiff dent of requiring a to explore justice system. have previously nal We obtaining other avenues for information Supreme quoted United States Court conducting “fishing before expedition[ ]” acknowledging prisoners only that have processes into mental of decision mak- rights. process
limited due Bruns v. See Kholeif, ers. 497 N.W.2d (Iowa
State, 1993) 607, 611 The reason for limited due process this Importance III. of Mental-Processes
right is that “[pjrison disciplinary pro- Privilege. ceedings are part pros- of criminal Many other avenues of exploration
ecution, and the full panoply rights establish bad faith behavior
due defendant in such proceedings including deposing witnesses and sum, apply.
does not In there exist— must be subpoenaing all communications between
mutual between accommodation institu- “ Edwards and other entities. ‘[I]nquiry tional needs and objectives pro- into the mental of administrative that
visions
Constitution
are of
”
usually
decisionmakers is
to be avoided.’
application.”
general
Kholeif, 497
at 806 (quoting
N.W.2d
Citi-
McDonnell,
(quoting
418 U.S.
Wolff
Park,
zens
Preserve Overton
makes for ALJs to do their indicate Requir- does he was interviewed. better. While he he stated would not en- ing the to supplement courage communication before the ALJ *19 protect record allows us to the mental- clarified, a hearing, conducts he “[I]f that process privilege unless and until a strong occur, communication ... just were to I showing of bad faith or behavior tell the ALJs to ... shut any down [not] is made. you Rather, may get.” comments accord- Savala, to
ing it becomes ALJ’s re- Until the has exhausted its
sponsibility independence investigative to maintain re- I am opportunities, unwilling
gardless parte ex invade the processes communications. sacrosanct mental
Nothing in the record indicates that Ed- the decision See Kholeif, maker. (“Because why
wards was did not agency asked she recuse N.W.2d at 807 had This type procedural question
herself. or formally considered evi- received bias, nor resolved the purportedly “sugges-
dence of issue warden makes this record, record, appear of the contested case the dis- tion” does not in the nor
part authority expand
trict court was without there evidence the full text or Rather, include the
the record to deliberations only context of the email. a part depose the board to commission
permit of the email in is included the Ombuds- views.”) their facts,
members on undisputed man’s statement of which subsequently admitted IDOC and Supreme has that it U.S. Court held portion Edwards. The admitted is the probe
is “not function of the court to sentence, single “Please exercise sanctions mental of the [administrative (180 365).” to fit situation United States v. Mor- maker].” 409, 422, 999, 1004,
gan, 813 U.S. 61 S.Ct. necessarily This fact does not indicate (1941) (emphasis
85 L.Ed. add- bad faith or improper part behavior on the
ed) (citation and quotation internal marks of Edwards without information re-
omitted). judges “Just as cannot be sub- garding typical practices procedures,
jected scrutiny, to such a the integrity so particularly light unique parame- process
of the administrative must be of the prison disciplinary system. ters Sa- (citation omitted).
equally respected.” Id. vala, fact, penalty testified that structure on a class “B” violation was not Finding Improper Bad Faith or
IV. symmetrical penalty with the structure on Behavior on This Record. class “A” and class “C” violations. If the important recognize just
It is how penalty for a class “B” violation had been
minimal the record is in this case. The symmetrical penalties with the for the facts,
majority bases its decision on four violations, “A” class and class the pen- “C” irrelevant, of which is
one two of which are alty imposed Edwards have fit with- would partially disputed, least and one of parameters, those it making likely more requires more context in
which order to be that this was an error and not bad faith or These
probative. four facts are: improper behavior. (1) Edwards’s initial sanction doubled We also face the difficulty attempting the allowable sanction for loss of earned poli- discern whether Edwards violated “B” time for class assault and matched cy without having knowing the benefit of (2) suggested penalty; the warden’s specific practices prison at the related did not involve a weapon assault or bodi- to the disciplinary policies. Savala indicat- ly justify penalty imposed; fluids to generalized ed that policies IDOC’s are (3) no other aggravating factors were prisons, sent to the different then devel- (4) listed; and changed oped specific into local procedure, so we do to a “A” assault class after the Ombuds- policies not know if the massaged were commenced, investigation man’s without fact, fit local conditions. In specifi- Savala listing any enumerated using factors or cally stated numerous times that he was “aggravated” the term as seen in other unfamiliar with operating proce- standard
decisions. dure at the Fort Dodge Correctional Facil- fact, record,
The first ity. “Edwards’s initial sanc- Based we do not know
tion doubled the allowable sanction for loss if it is routine or problematic for an ALJ
of earned time for a class “B” assign discipline assault and a policy. outside of the the suggested penalty” only
matched warden’s happened We know that it in this one certainly facially the most damning,
is but situation. While Iowa section 903A.4 Code context. The email in facially
lacks which the does not poli- allow deviation from procedural part and rules established the able
cy job expand of that its search IDOC, spe- beyond of the neither does it
director this one disciplinary action to de
cifically prohibit institution-specific devia- if systemic problems termine serious exist that We also know when Savala
tions.8 the Dodge Fort- Facility Correctional were policies mandatory,
was asked if the and make recommendations based on a into kind of a replied, gets gray
he “[T]hat better the understanding process. entire develop
area.... institution will [E]ach Miller, See Citzens’ Aide/Ombudsman specific (Iowa 1996) local procedure.”
more (noting the purpose that of the Ombudsman is to Certainly, parte ex communication “investigate complaints received ‘from appellate suggestive tribunal is of im- concerning source an administrative action’ justice the criminal
proper influence a state agency” (quoting Iowa Code However, only evidence in context. 2C.12)). record, § On this it is impossible general that indicates what record to determine systemic serious ALJs follow the
practices testimony is existed, did, if problems they and further Savala, encourages who testified he com- genesis problems. determine the those prison staff
munication between the and Making predetermination on an incom
ALJs, prior even if it to the occurs hear- plete record that Edwards acted in bad result, As a
ing. premature it is to con- or improperly faith would not aid the Om this context. impropriety in
clude its fulfilling statutorily-pre budsman is also it is the possible It that warden’s scribed duties. deserving
actions that are of criticism and The second fact on which majority entirely appropriatel
that Edwards acted probative. relies is not majority cor- fact, In seems
y.9 majority to conclude rectly notes that assault did “the not in- inappropriately.
that the warden did act bodily volve a weapon justify fluids to is within power
It Ombudsman penalty imposed.” This fact relates to subpoena question the warden on assault, the definition of a “A” class Similarly,
these communications. it is penalty which the be within would the power
within of the Ombudsman to See IDOC policy. prescribed
question Edwards this and about other IO-RD-01(IV)(P)(4)(2)(e); id. 10- Policy invading
communications without her men RD-01(IV)(P)(2)(a)(l). However, fact,
tal-process neither In both IDOC the Ombudsman nor IDOC and Edwards stipulated
and Edwards that she would argue that “questions regard
answer with this assault should have been the back facially
ground procedural class “A” of the issues classified assault. some Rather, question One of whether the sanc- discipline.” the func is to upgraded
tions oversee this tion this case could be
agency. It would to be a appear upon aggrava- reason next class of offense based department acknowledge
8. The director of I punishing the Iowa of cor- we not be would improp- if procedural Edwards we were to find she acted develop policy rections shall faith, erly or in bad it is not but Edwards’s implement through rules to sections 903A.1 I interests are at stake here. am interest- may specify disciplinary 903A.3. The rules preserving procedure ed in proper for over- may offenses which in the result loss of coming mental-process privilege. In or- time, earned and the amount of earned time procedure, der proper to follow this we are which be lost as a result of each disci- objective required to make an determination plinary offense. of Edwards’s to find that she acted intentions (2009). Iowa Code 903A.4 in bad faith.
ting department prison operations. Under risk” and disrupted circumstances. the Administrative This that his conduct policy, language “[i]f
corrections indicates Judge impact
Law determines that the factors or “significant caused institutional an offense are
circumstances of more seri- operations.” She noted his disobedience offense, charged arrived,
ous than the the sanction continued until other staff to the
may upgraded next class.” Id. Edwards Linderman be recommended
IO-RD-Ol(IIIXB). Clearly, Edwards had to “a evaluated for transfer more secure such, this. authority to do As the fact environment,” a recommendation which is offense, not a “A”
that this offense is class suggestive op- of his threat to institutional face,
on its is irrelevant a determination report erations. Her concluded initial improperly
as to whether Edwards acted severity sanction “reflects the the of-
in or bad faith. fense appropriate and is nature of the offense.” 12 statement Her June add- on which majority The third fact ed, ... is being class offense modi- “[T]he supported
relies is not the record. fied to reflect the seriousness of the viola- other factors aggravating were list-
“[N]o tion at this time.” sharply disputed.
ed.” This fact is
policy provides: The which majority fourth fact on Judge
The Administrative Law shall disputed relies is and not partially suffi- writing the
specify aggravating cir- ciently probative. changed “[Edwards] warranting a change
cumstances in the “A” after assault to class the Ombuds- Aggravating
sanction. factors in- commenced, investigation man’s without clude, not limited to: history but are listing any factors or using enumerated
violence, weapon, severity inju- use of ‘aggravated’ term seen in other as deci- impact to ry, significant institutional op- discussion, my sions.” As noted earlier erations, infractions, repeat premed- listed enumerated fac-
itation.” tors is a sharply disputed fact. The fact IO-RD-01(III)(B). that she changed report her after the Om- investigation began budsman’s is not nec- report
Based on Edwards’s and the evi- essarily bad faith or improper indicative of record, including
dence in the a videotape likely behavior. It equally that she incident, Savala concluded that Ed- simply corrected a mistake that had been finding
wards did make a of aggravating brought to her attention.
circumstances, further, that such a finding was warranted. Specifically, he language “other decisions” refers to noted that Linderman assaulted the officer four sample “aggra- cases where the terms times,
multiple qualifies which a “repeat “aggravation” vated” or were used. With- infraction,” aggravating factor. Addi- context, out not instructive in this is our tionally, he went into some detail as to how analysis. presented The Ombudsman too this assaultive conduct would cause “signif- little us to information for determine how impact icant to institutional operations,” common the these terms use of are in another aggravating factor. Savala also disciplinary questions Critical decisions. noted that the did policy require Ed- unanswered, are many such as: How disci- wards to term “aggravating,” use the just plinary each year? cases are decided Do that she note the inmate’s actions. specifically all or most of the ALJs use the “aggravation”?
Edwards’s term April expressly “aggravated” or Is it customary
found proper Linderman’s behavior in a common to use words like
area “placed safety enhancing a staff member’s “seriousness” as a basis *22 sample
violation? Do the authors of the to process, her mental which could include
reports “ag- communications, use a derivative of the term including other with Sa-
gravated” consistently? majority vala, day she upgraded her sanction statutory
presents authority no nor IDOC from “B” a class violation to class “A”
policy to use of the term is re- indicate incident, violation. The video of the miss-
quired suggest and no evidence to it is record, ing the appellate may also customary.
even assist district court in evaluating the severity of incident. Even information
Thus, the make Ombudsman asks us to quantity hearings about the Edwards
a decision based on the bare that an facts conducted the corresponding number email was sent from the warden Ed- generated she reports help would deter- gave appro-
wards and that a penalty she likely mine if was it she made a had cleri-
priate “A” a class violation without cal error in not upgrading the offense to a
explicitly stating aggravating she was “B,” class “A” rather than a class
violation from a “B” to a “A.” I class class acted improperly she or in bad
am disputing that such looks activity remand, court, faith. guid- On the district However,
suspicious. I am not prepared record, ed complete a more will be conclude, law, as matter that this a positioned better to decide whether a suffi- evidence, more, without constitutes showing cient has been made to overcome
strong showing of bad faith or inappropri- mental-process Edwards, part par-
ate behavior on the
ticularly in prison the context of a disci- V. Conclusion.
plinary majority equally case. The seems conclusion,
reluctant to come as it I would reverse the district court rul- relies on dem- opinion its the warden ing an compelling deposition unlimited faith, that, opinion onstrated bad an based remand, deposition On Edwards. prior on our jurisprudence, is irrelevant to proceed Edwards should the Om- with analysis. our budsman into inquire allowed various communications with
When we relevant involved remanded the district court Marietta, parties, exploration general specifically Martin we ac- procedures handling prison involved in
knowledged discovery com- into the However, discipline. would between Edwards
munications made various entities mental-process entitled to invoke the
and the makers fact help would privilege questions to decline to
finder if bad answer determine faith existed. Marietta, her internal thought
Martin I N.W.2d at 557. court, until the unless and district after thing
conclude the same here. it, reviewing complete record before I possible it is acknowledge “that concludes the privilege only way there can be effective has been defeated evidence demon- by examining
review is
the decisionmakers
“strong
strating
of bad faith or
themselves.” See Citizens to Preserve
on
part.
behavior”
her
Inc.,
Park,
Overton
S.Ct. at But L.Ed.2d
until has its Ombudsman exhausted
other investigation, avenues for piercing yet appropriate. is not What
is appropriate allow the is to depose relating issues not