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Iowa: Bad Faith or Misconduct can Overcome Mental-Process Privilege in Disciplinary Case

The Iowa Supreme Court has held that administrative law judges (ALJs) in the Department of Corrections (DOC) are entitled to assert the mental-process privilege in an Office of Ombudsman investigation, but that privilege may be overcome upon a strong showing of bad faith or misconduct. In the case before the Court, the Ombudsman – a state watchdog agency – made the requisite showing to overcome the privilege.

Fort Dodge Correctional Facility prisoner Randy Linderman was charged with several disciplinary offenses on April 2, 2008, including Class B assault. He was “verbally disruptive and physically inappropriate with [a guard] to the point that the offender assaulted the officer with his body several times.” Specifically, Linderman chest bumped the guard two or three times and disobeyed commands until other guards arrived to take control.

At his disciplinary hearing, Linderman pleaded guilty and admitted he was angry at the time of the violation. ALJ Deb Edwards found him guilty of Class B assault and imposed a sanction of 180 days in disciplinary detention and 180 days loss of earned time. Linderman appealed to the warden, who affirmed Edwards’ decision. Rather than seek post-conviction judicial review, Linderman complained to the Office of Ombudsman.

During its investigation, the Ombudsman learned that Warden Cornell Smith had sent the ALJ an email which stated, “Please exercise sanctions to fit situation (180-365).” A Class B assault only carries a 90-day sanction, and the penalty imposed on Linderman was for a Class A assault. To increase the penalty, the ALJ must find aggravating circumstances by listing six factors from a nonexclusive list. None of the factors was expressly identified in Linderman’s disciplinary decision, nor were any of them present with respect to his offense.

An interview by a representative from the Ombudsman’s office found that ALJ Edwards stated she decided not to find aggravating factors for Linderman, but Warden Smith claimed Edwards had said she planned to do so. Subsequently, Edwards amended Linderman’s disciplinary decision to reflect that it was a Class A offense, but failed to list any aggravating factors.

The Ombudsman sought to depose Edwards about her “[m]otive, influences, and decision process” in the case. The DOC and Edwards objected, and the Ombudsman sought to enforce its subpoena by filing a petition in Polk County District Court in October 2010. The court held that the mental-process privilege did not apply to Ombudsman proceedings and granted summary judgment in favor of the Ombudsman’s office.

On appeal, the Iowa Supreme Court agreed with the outcome but not the district court’s finding that the mental-process privilege was inapplicable. The Court stated, “The mental-process privilege is a corollary to the deliberative process privilege that protects uncommunicated motivations for a policy or decision.” ALJ’s serve in a quasi-judicial role in disciplinary hearings and are entitled to mental-process privilege “absent a strong showing of bad faith or improper behavior sufficient to overcome that privilege.”

In this case, the ex parte communication from the warden, who hears prisoners’ disciplinary appeals and cannot increase the sanction on appeal, to the ALJ, whose independence from the DOC is statutorily mandated, exhibited improper conduct sufficient to overcome the mental-process privilege.

Therefore, the Ombudsman could compel testimony not only as to the ALJ’s “communications with the warden and others, but also regarding her thought processes to explain her decision in Linderman’s disciplinary proceedings.” Justice Bruce Zager issued a dissenting opinion. See: Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8 (Iowa 2012).

During a January 2014 phone interview, Ombudsman Ruth H. Cooperrider informed PLN that her office was able to depose Edwards upon remand, and that the investigation had concluded but a final report had not yet been released.

Edwards retired from her ALJ position with the DOC in June 2010, while the Ombudsman’s investigation was pending.

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