Office of Citizens' Aide/Ombudsman v. Edwards

• Decision Date: 16 January 2013
• Docket Number: No. 11–1452.,11–1452.
• Citation: 825 N.W.2d 8
• Parties: OFFICE OF CITIZENS' AIDE/OMBUDSMAN, Appellee, v. Deb EDWARDS and Iowa Department of Corrections, Appellants.
• Court: Iowa Supreme Court

825 N.W.2d 8

OFFICE OF CITIZENS' AIDE/OMBUDSMAN, Appellee,

v.Deb EDWARDS and Iowa Department of Corrections, Appellants.

No. 11–1452.

Supreme Court of Iowa.

Dec. 14, 2012.

Rehearing Denied Jan. 16, 2013.

Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellants.

Charles Andrew Teas, Des Moines, for appellee.

WATERMAN, Justice.

The fighting issue in this appeal is whether an administrative law judge (ALJ) may assert the mental-process privilege to limit her deposition testimony in an investigation by the Office of Citizens' Aide/Ombudsman (Ombudsman) into her ruling on a prison disciplinary matter. Deb Edwards, an independent ALJ within the Iowa Department of Corrections (IDOC), presided over the hearing of an inmate charged with assaulting a corrections officer. Edwards found the inmate guilty of assault, class “B,” and imposed a 180–day, loss-of-earned-time penalty that doubled the maximum ninety-day penalty prescribed under corrections policy but matched the 180–day penalty requested in a prehearing, ex parte email to her from the warden. The Ombudsman, pursuant to its agency watchdog role under Iowa Code chapter 2C (2009), launched an investigation. Edwards later amended her decision to escalate her classification of this assault from “B” to “A,” without identifying any aggravating factors, as required under corrections policy.

The Ombudsman subpoenaed Edwards for deposition testimony after receiving inconsistent explanations from her and the warden during informal interviews and after discovering the warden's prehearing email. The parties disagreed over whether Edwards could validly assert the mental-process privilege to refuse to answer questions about her decision. See§ 2C.21 (persons required to provide information to the Ombudsman “shall be accorded the same privileges and immunities as are extended to witnesses in [Iowa] courts”); State ex rel. Miller v. DeCoster, 608 N.W.2d 785, 790 (Iowa 2000) (recognizing mental-process privilege). The parties also disagreed whether the privilege was overcome by a showing of improper external pressure on Edwards based on the warden's email purportedly dictating the penalty the independent ALJ was to impose. See Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 554–55 (Iowa 2004) (allowing mental-process privilege to be overcome upon a strong showing of bad faith or improper behavior). The Ombudsman filed an action in district court to enforce the subpoena, and the parties filed cross-motions for summary judgment on the applicability of the mental-process privilege and the showing required to defeat it.

The district court ruled the mental-process privilege would not apply to limit deposition testimony in the Ombudsman's investigation, as opposed to a judicial proceeding. Accordingly, the district court did not reach the question whether the Ombudsman had made a sufficient showing of bad faith or impropriety to overcome the privilege. Edwards and IDOC appealed, and we retained the appeal to decide questions of first impression on the applicability of the mental-process privilege under these circumstances.

On our review, we hold the mental-process privilege is available to IDOC ALJs in an Ombudsman investigation, but conclude, based on this record, the Ombudsman has made a sufficient showing to overcome the privilege. For the reasons explained below, we affirm the order overruling Edwards's mental-process privilege in this case and compelling her deposition.

I. Background Facts and Proceedings.

On April 2, 2008, Randy Linderman, an inmate at the Fort Dodge Correctional Facility (FDCF), was involved in an altercation with a corrections officer in a common area within view of other inmates. Linderman was “verbally disruptive and physically inappropriate with [the corrections officer] to the point that the offender assaulted the officer with his body several times.” Specifically, Linderman chest bumped the corrections officer two or three times and disobeyed commands until other guards arrived to take control. The altercation was recorded by a surveillance camera.

Linderman was charged with violating prison rules prohibiting assaults, threats, and verbal abuse. An evidentiary hearing was completed on April 24. Edwards, an ALJ for the IDOC with twelve years' experience in that capacity, presided over the hearing. She watched the video of the incident, reviewed witness statements, and reviewed a written submission by Linderman. In her hearing decision dated April 24, Edwards noted Linderman “pled guilty ... admitting that he was angry at the time of the violation.” Edwards found that:

The offender's behavior placed a staff member['s] safety at risk, disrupted the normal operation of Boone and failed to follow any directives given him by that staff member until other staff arrived on the scene and moved him to A building.

Edwards found Linderman guilty of class “B” assault and entered a sanction of 180 days of disciplinary detention and 180 days loss of earned time. Her decision concluded:

This sanction reflects the severity of the offense and is appropriate to the nature of the offense.... This ALJ is also recommending that the classification committee review the offender for a possible transfer to a more secure environment.

Linderman appealed the decision to Cornell Smith, warden at FDCF, who affirmed the decision on April 28. Linderman did not seek postconviction judicial review, but complained to the Ombudsman. The Ombudsman launched an investigation into whether the IDOC and Edwards followed Iowa law and corrections policy in this matter. The investigation initially focused on whether the loss-of-earned-time sanction Linderman received was excessive. Under then-existing policy, a class “B” assault could result in loss of earned time of up to ninety days. IDOC Policy IO–RD–01(IV)(P)(2)(a)(2)(a) (Jan. 2007); see alsoIowa Code § 903A.4 (authorizing the IDOC to develop disciplinary policies and rules for prisons including “the amount of earned time which may be lost as a result of each disciplinary offense”). Thus, it appeared that the sanction of 180 days of loss of earned time for Linderman's class “B” assault was facially excessive. The ALJ is permitted under IDOC policy to aggravate an offense to the next level, but is to “specify in writing the aggravating circumstances warranting a change in sanction.” IDOC Policy IO–RD–01(III)(B). A nonexclusive list of six aggravating factors is included in the policy: (1) history of violence, (2) use of weapon, (3) severity of injury, (4) significant impact to institutional operations, (5) repeat infractions, and (6) premeditation. Id. None of these factors is expressly identified in Edwards's April 24 decision.

An assistant Ombudsman, Bert Dalmer, conducted unsworn, unrecorded interviews of Edwards by phone on May 12 and June 3. Dalmer, relying on his contemporaneous notes, stated, “Deb very distinctly told me twice in my first contact with her on this case that she believed she could have aggravated this case but decided not to.” Dalmer then spoke with Warden Smith, who told Dalmer that “the ALJ told [Smith] she intended to aggravate.” On June 12, Dalmer contacted Michael Savala, general counsel for the IDOC and supervisor for IDOC ALJs. The same day, Edwards spoke with Savala and modified her ruling to change the classification of Linderman's assault offense from class “B” to class “A,” again without specifically identifying any of the aggravating circumstances enumerated under prison policy and without using any variation of the term “aggravated.” Edwards merely added the following to the disposition section:

The ALJ is modifying an error that occurred when submitting this report hearing, the class offense of the assault is an (A) violation and is being modified to reflect the seriousness of the violation at this time. A copy is being forwarded to the offender at ASP and to the Warden here at FDCF. The offender's behavior was consistent with the DOC policy IO RD–01 (II)(a)(P)(b).

Savala told Dalmer he was unable to find the policy provision Edwards cited in her June 12 decision.

Dalmer noted his office had examined other disciplinary sanctions and “found assaults [they] would deem to be more serious involving feces, urine, spit, punches that led to the same sentence or lesser sentences than this particular case.” He also noted four other decisions, including one by Edwards, which used a form of the word “aggravated” when imposing more severe sanctions.

As the investigation continued, the Ombudsman learned Warden Smith had sent Edwards an email after Linderman's altercation with the corrections officer, but before the disciplinary hearing, stating, “Please exercise sanctions to fit situation (180 to 365).” ¹ The Ombudsman viewed the warden's email as improper external pressure on the ALJ whose independence is required by law. The Ombudsman argues the warden effectively dictated the penalty Edwards was to impose before she commenced the hearing.

The Ombudsman deposed Warden Smith and Savala. The Ombudsman invited Edwards to voluntarily provide her sworn testimony, but she declined. Accordingly, the Ombudsman subpoenaed Edwards for deposition. IDOC counsel responded by letter, asserting that the Ombudsman could not question Edwards about her “motive, influences and decision making process in a specific disciplinary case.” The parties postponed the deposition while they negotiated the scope of the testimony. Ultimately, they were unable to agree, and the Ombudsman issued a second subpoena for Edwards's sworn testimony on May 17, 2010. The parties stipulated the Ombudsman could question Edwards regarding the background and some of the procedural issues pertaining to the Linderman disciplinary proceeding, but acknowledged IDOC counsel would object and instruct Edwards not to answer questions regarding her decision-making process.

The Ombudsman filed a...