                   IN THE SUPREME COURT OF IOWA
                               No. 07–1117

                           Filed June 11, 2010


JOHN DYKSTRA,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR
JONES COUNTY,

      Defendant.



      Certiorari from the Iowa District Court for Jones County,

David Remley, Judge.



      Inmate challenges inability to accrue earned time based on refusal

to participate in sex offender treatment program. WRIT SUSTAINED.



      Philip B. Mears, Mears Law Office, Iowa City, for plaintiff.



      Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant

Attorney General, for defendant.
                                    2

STREIT, Justice.

      John Dykstra filed a postconviction action challenging the Iowa

Department of Corrections’ (IDOC) revocation of his ability to accrue

earned time because he refused to participate in a sex offender treatment

program (SOTP).    IDOC’s inmate classification requiring an inmate to

participate in SOTP or lose the ability to accrue earned time implicates a

liberty interest, and, therefore, the inmate must receive adequate

procedural protections.   Dykstra did not receive due process because

IDOC relied on unadmitted factual allegations without providing

adequate procedural protections.

      I.     Background Facts and Proceedings.

      In 2005, Dykstra pleaded guilty to charges of simple assault, a

simple misdemeanor, in violation of Iowa Code section 708.2(5) (2003)

and dependent adult abuse, a class “D” felony, in violation of Iowa Code

section 235B.20(5). The simple assault charge was pled down from an

original charge of sexual abuse in the third degree. The dependent adult

abuse charge was based on Dykstra’s failure to pay his wife’s nursing

home bill.   The district court sentenced Dykstra to thirty days for the

simple assault conviction and to a term not to exceed five years for the

dependent adult abuse conviction, to be served concurrently.

      Dykstra completed the thirty day assault sentence while still in

prison on October 9, 2005.    On December 15, 2005, while still in the

custody of the IDOC on the dependent adult abuse conviction, Dykstra

had an orientation where he was told he would be required to participate

in SOTP.      An IDOC reception report recommended that Dykstra

participate in SOTP based on the alleged circumstances of the simple

assault as well as Dykstra’s previous convictions and his inclusion on

the sex offender registry. Referring to the alleged circumstances of the
                                           3

simple assault, the reception report noted that Dykstra’s wife, who lived

in a nursing home because of multiple sclerosis, reported she was forced

to perform oral sex on Dykstra against her will. IDOC appears to have

based this factual summary on the minutes of testimony attached to the

charging information. 1        The reception report also identified a 1983

indecent exposure conviction, a 1994 indecent exposure charge, a 1995

burglary conviction for stealing a neighbor’s lingerie and sexually explicit

photos, a 2000 prostitution solicitation charge, and Dykstra’s presence

on the sex offender registry when he entered prison.

       Dykstra objected to the requirement that he attend SOTP,

maintained that any sexual contact with his wife was consensual, and

argued the simple assault did not contain a sexual element. On January

27, 2006, IDOC administered Dykstra a polygraph exam about the facts

surrounding the simple assault, which Dykstra failed.

       On February 16, 2006, Dykstra signed a refusal form for SOTP.

Applying a 2005 amendment to Iowa Code section 903A.2, IDOC

determined Dykstra was no longer eligible for earned time credit. Prior to

Dykstra’s refusal to participate in SOTP, his discharge date for the

dependent adult abuse conviction was January 20, 2008.                             After
Dykstra’s refusal, his discharge date was changed to May 12, 2010 2.

       Dykstra appealed to the deputy warden. The appeal was denied,

and Dykstra filed a postconviction petition under Iowa Code section



       1No evidence was entered to demonstrate Dykstra admitted the minutes of
testimony. Neither the minutes of testimony nor the transcript from the hearing at
which Dykstra entered his plea to simple assault are part of the postconviction record.
       2
        It is unclear from the record whether Dykstra was discharged on May 12, 2010
and his case is therefore moot. Wilson v. Farrier, 372 N.W.2d 499, 501 (Iowa 1985).
Regardless, because the underlying question is one of public importance that is likely to
reoccur, we reach the merits. Id.
                                          4

822.2(1)(f) 3 or in the alternative section 822.2(1)(e) or Iowa Code chapter

17A.     The district court determined the suit was properly considered

under section 822.2(1)(f) and denied relief.             Dykstra filed a writ of

certiorari challenging the district court’s ruling denying relief pursuant to

Iowa Code section 822.9.

       II.     Scope of Review.

       Generally, postconviction relief proceedings are reviewed for

correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa

2002).        We review questions of statutory construction, including

Dykstra’s claims as to the proper interpretation of Iowa Code section

903A.2, for errors at law. In re A.W., 741 N.W.2d 793, 806 (Iowa 2007).

Dykstra’s claims alleging violations of his constitutional rights, however,

are reviewed “ ‘in light of the totality of the circumstances and the record

upon which the postconviction court’s ruling was made.’ ”                  Risdal v.

State, 573 N.W.2d 261, 263 (Iowa 1998) (quoting James v. State, 541

N.W.2d 864, 869 (Iowa 1995)). This is the functional equivalent of de

novo review. Id.

       III.    Merits.

       Prior to 2001, Iowa Code section 903A.2 provided that inmates

serving category “A” sentences were eligible for a sentence reduction of

one day for each day of good conduct and, in addition, could earn a

further reduction of up to five days per month for satisfactory

participation in certain programs, including treatment programs. Iowa

Code § 903A.2(1)(a) (1999).        In 2000, the legislature amended section

       3The   original petition was filed under the 2005 code. Iowa Code section 822.2
was amended effective July 1, 2006 to make nonsubstantive corrections. See 2006
Iowa Acts ch. 1010, § 162. These corrections renumbered section 822.2’s subsections
and unnumbered paragraphs. Because this amendment did not make substantive
changes and makes the subsections more easily identifiable, we refer to chapter 822 as
set forth in the 2009 code.
                                     5

903A.2 to provide that an inmate serving a category “A” sentence was

“eligible for a reduction of sentence equal to one and two-tenths days for

each day the inmate demonstrates good conduct and satisfactorily

participates in any program or placement status identified by the director

to earn the reduction.”     Iowa Code § 903A.2(1)(a) (2001) (emphasis

added). This amendment became effective January 1, 2001. 2000 Iowa

Acts ch. 1173, § 10. IDOC applied the 2001 amendment so that refusal

to attend SOTP resulted in a loss of ninety days earned time but did not

affect the inmate’s ability to accrue time in the future. Holm v. Iowa Dist.

Ct., 767 N.W.2d 409, 415 (Iowa 2009).

      In 2005, the legislature again amended Iowa Code section

903A.2(1)(a) to state “an inmate required to participate in a sex offender

treatment program shall not be eligible for a reduction of sentence unless

the inmate participates in and completes a sex offender treatment

program established by the director.” Iowa Code § 903A.2(1)(a) (Supp.

2005). Under IDOC policy applying this amendment, an inmate will no

longer accrue any earned time after refusing to attend SOTP, but will not

lose any previously accrued earned time.

      Dykstra alleges the stopping of his ability to accrue earned time

credit is improper for five reasons. First, Dykstra asserts application of

the 2005 amendment violated the Ex Post Facto Clause of the Iowa and

United States Constitutions.       Second, Dykstra asserts the 2005

amendment to Iowa Code section 903A.2 should not be applied

retroactively as a matter of statutory construction.        Third, Dykstra

argues Iowa Code section 903A.2 was improperly applied to him because

he was not serving time for a sex offense. Fourth, Dykstra argues the

prison’s procedures for determining whether he was required to

participate in SOTP violated due process. Finally, Dykstra claims IDOC
                                       6

inappropriately    relied   on   a   polygraph   examination   to   make   a

classification determination.

      A. Ex Post Facto Clause. We recently held IDOC’s application of

Iowa Code section 903A.2, as amended in 2001 and 2005, to inmates

whose crimes occurred prior to January 1, 2001 violates the Ex Post

Facto Clause.     State v. Iowa Dist. Ct., 759 N.W.2d 793, 801–02 (Iowa

2009).   We also recently held, however, that application of the 2005

amendment to inmates whose crimes occurred after enactment of the

2001 amendment but before enactment of the 2005 amendment does not

violate the Ex Post Facto Clause.      Holm, 767 N.W.2d at 416–17.     The

2005 amendment was “merely a clarification of the 2001 amendment,”—

and therefore, “did not result in more onerous punishment.” Id. at 416.

Consequently, the 2005 amendment did not violate the Ex Post Facto

Clause when applied to an inmate whose offense occurred before the

effective date of the 2005 amendment but after the effective date of the

2001 amendment. Id. at 417.

      Dykstra argues that application of the 2005 amendment violated

the Ex Post Facto Clause because he is serving a sentence for actions

which took place in 2004. Under Holm, IDOC’s application of the 2005

amendment to Dykstra did not violate the Ex Post Facto Clause.

      B. Retroactivity. Dykstra argues section 903A.2, as amended in

2005, cannot be construed to apply retroactively to individuals whose

crimes took place after enactment of the 2001 amendment but before

enactment of the 2005 amendment.           We have previously rejected this

argument because we determined the amendment did not change the

existing law, but merely clarified and corrected IDOC’s application of

existing law.   See Holm, 767 N.W.2d at 416 n.3.       Therefore, Dykstra’s

argument has no merit.
                                    7

      C. IDOC Statutory Authority To Require SOTP. Dykstra argues

IDOC could not require him to participate in the SOTP because he was

not convicted of a “sex offense” and was not serving a sentence for a sex-

related crime when his ability to accrue earned time was revoked. The

language of the 2005 amendment states:           “an inmate required to

participate in a sex offender treatment program shall not be eligible for a

reduction of sentence unless the inmate participates in and completes a

sex offender treatment program established by the director.” Iowa Code

§ 903A.2(1)(a) (emphasis added).    The statute does not set criteria for

which inmates will be “required to participate.”       Iowa Code section

903A.4 states, however, that the director of IDOC “shall develop policy

and procedural rules to implement sections 903A.1 through 903A.3.”

      The broad discretion granted to IDOC does not limit application of

section 903A.2 to inmates serving sentences for particular crimes or

crimes labeled as “sex offenses.”   There is no statutory limitation that

would prevent IDOC from recommending SOTP for an inmate convicted

of a crime that is not facially considered a sex offense where the factual

circumstances of the crime are of a sexual nature.

      Dykstra responds that even if IDOC has the authority to require

SOTP, it does not have the statutory authority to stop his ability to

accrue earned time on a sentence for a non-sex-related crime. By the

time Dykstra was referred to SOTP, he was only serving a sentence for

the non-sex-offense crime of dependent adult abuse based on a failure to

pay nursing home bills. Iowa Code section 903A.2(1)(a) directs that an

inmate required to participate in SOTP who refuses to do so, shall not be

eligible for a reduction of “sentence.” Section 903A.2 does not require

that the “sentence” be one connected to the reason IDOC has required

the inmate to attend SOTP. Instead, when IDOC requires SOTP and an
                                     8

inmate refuses or is removed from the program, the inmate cannot

accrue earned time toward any sentence the inmate is currently serving.

      State v. Valin, 724 N.W.2d 440 (Iowa 2006), cited by Dykstra, does

not provide support for his claims here.     In Valin, we held it was an

abuse of discretion for a district court judge to sentence Valin to SOTP as

part of his probation for a 2005 OWI offense based on Valin’s prior 1999

conviction for a sexual offense. 724 N.W.2d at 447–49. The statute at

issue in Valin required that a condition of probation “ ‘promote the

rehabilitation of the defendant or protection of the community.’ ” Id. at

445 n.3 (quoting Iowa Code § 907.6 (2005)). The court recognized that “a

defendant’s background and history is . . . relevant when determining the

conditions of probation.”    Id. at 447.   However, the court found an

insufficient nexus between Valin’s present conviction and the probation

conditions.   Id.   Valin had already served his sentence for the prior

conviction and had successfully participated in SOTP. Id. at 442. As the

court explained, “it is axiomatic that [prior conviction] history is

insufficient unless it reveals a problem currently suffered by the

defendant relating to the need to rehabilitate the defendant or protect the

community from the defendant.” Id. at 447.

      There may be some limitation on IDOC’s discretion to require

SOTP. This court’s decision in Maghee v. State, 773 N.W.2d 228, 239 n.3

(Iowa 2009) suggests IDOC action may constitute “other agency action”

under section 17A.19.       Section 17A.19 allows, for example, judicial

review and reversal of agency action which is unreasonable, arbitrary,

capricious, or an abuse of discretion. Iowa Code § 17A.19(10)(n). We do

not address the potential applicability of section 17A.19 to this case

because the district court held that chapter 17A was not an appropriate
                                    9

mechanism to review Dykstra’s claims and Dykstra does not seek review

of this holding.

      Regardless, Dykstra cannot gain support from Valin.            IDOC

reached a determination that Dykstra’s simple assault conviction

contained a sexual element and therefore revealed a “problem currently

suffered” in the words of Valin. Although this determination may have

been procedurally flawed based on due process grounds, as discussed

below, IDOC has statutory authority to rely on a current conviction for a

non-sex offense when the underlying facts are of a sexual nature.

      D.     Due Process.    Dykstra argues that regardless of IDOC’s

authority to require participation in SOTP, the procedures employed by

IDOC violate his constitutional right to due process under the United

States and Iowa Constitutions. Although in the past we have interpreted

the United States and Iowa Constitutions “in a similar fashion,” State v.

Seering, 701 N.W.2d 655, 662 (Iowa 2005), we “ ‘jealously guard our right

and duty to differ in appropriate cases.’ ” State v. Cline, 617 N.W.2d 277,

285 (Iowa 2000) (quoting State v. Olsen, 293 N.W.2d 216, 220 (Iowa

1980)), overruled on other grounds by State v. Turner, 630 N.W.2d 601,

606 n.2 (Iowa 2001). Because Dykstra has not advanced a standard for

interpreting the due process clause under the Iowa Constitution different

from its federal constitutional counterpart, we will apply the general

principles as outlined by the United States Supreme Court. See State v.

Bruegger, 773 N.W.2d 862, 883 (Iowa 2009).          Even so, we do not

necessarily apply the federal standards in the same way as the Supreme

Court. Id.

      “[T]he first step in any procedural due process inquiry is the

determination of ‘whether a protected liberty or property interest is

involved.’ ” Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk County
                                     10

Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)). After determining

a liberty interest is involved, we consider three factors in analyzing what

process is due:

      “First, the private interest that will be affected by the official
      action; second, the risk of an erroneous deprivation of such
      interest through the procedures used, and the probable
      value, if any, of additional or substitute procedural
      safeguards; and finally, the Government’s interest, including
      the function involved and the fiscal and administrative
      burdens that the additional or substitute procedural
      requirements would entail.”

Id.

      The United States Supreme Court has recognized two instances

when liberty interests of prisoners are implicated. First, when a restraint

imposes “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life,” and second, when a restraint “will

inevitably affect the duration of [the inmate’s] sentence.”        Sandin v.

Conner, 515 U.S. 472, 484, 487, 115 S. Ct. 2293, 2300, 2302, 132 L. Ed.

2d 418, 430–31 (1995).

      When determining the existence of a liberty interest here, “[i]t is

important . . . to precisely identify the right that [Dykstra] asserts as the

basis for his liberty interest.” Sanford v. Manternach, 601 N.W.2d 360,
366 (Iowa 1999). This court previously recognized a liberty interest in an

inmate’s ability to accrue earned time. Holm, 767 N.W.2d at 417–18.

      Recognition of a liberty interest in this circumstance is consistent

with case law in federal and state courts, which have found a liberty

interest in classification of a prisoner or parolee as a sex offender that

requires participation in SOTP and implicates eligibility for non-

discretionary parole or earned time credits. The Tenth Circuit has held

“it was the loss of the previously granted opportunity to earn good time

credits at a higher level, combined with his classification as a sex
                                     11

offender, that implicated a liberty interest.” Gwinn v. Awmiller, 354 F.3d

1211, 1217 (10th Cir. 2004). Similarly, the Ninth Circuit explained that

      the stigmatizing consequences of the attachment of the “sex
      offender” label coupled with the subjection of the targeted
      inmate to a mandatory treatment program whose successful
      completion is a precondition for parole eligibility create the
      kind of deprivations of liberty that require procedural
      protections.

Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); see also Coleman v.

Dretke, 395 F.3d 216, 223 (5th Cir. 2004) (finding a liberty interest “in

freedom from the stigma and compelled treatment on which his parole

was conditioned”); Thomas v. Warden, 891 A.2d 1016, 1027–28 (Conn.

Super. Ct. 2005) (finding liberty interest where prisoner was classified as

sex offender in prison system despite jury acquittal on sex offense

charge); cf. Gilmore v. Bostic, 636 F. Supp. 2d 496, 511 (S.D. W. Va.

2009) (“Like the Fifth, Ninth, Tenth, and Eleventh Circuits, the court

concludes that a sex offender treatment program could constitute a

change in the conditions of confinement so severe as to essentially

exceed the sentence imposed by the court. Here, although the plaintiff

has no liberty interest in parole under the United States Constitution, he

has been required to undergo treatment for behaviors in which it has not

been proven he has engaged.”).

      The liberty interest at stake here compares closely to the liberty

interest identified by the United States Supreme Court in Vitek v. Jones,

445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 565–66

(1980).     Vitek held that a Nebraska statute authorizing correctional

officials to classify inmates as mentally ill and transfer them to mental

hospitals    for   involuntary   confinement   and   mandatory    behavior

modification implicated the inmates’ liberty interest. “[T]he stigmatizing

consequences of a transfer to a mental hospital for involuntary
                                        12

psychiatric treatment, coupled with the subjection of the prisoner to

mandatory behavior modification as a treatment for mental illness,

constitute the kind of deprivations of liberty that requires procedural

protections.” Id.

       Dykstra’s classification required him to attend mandatory behavior

modification treatment—SOTP.          Refusal to participate in SOTP makes

Dykstra completely ineglible for any earned time.               The stigmatizing

consequence of being labeled as a sex offender, the mandatory behavior

modification treatment, and the revocation of the inmate’s ability to earn

any time should he refuse to participate in SOTP demonstrate this initial

classification implicates an “interest [that] has real substance.” Wolff v.

McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935,

951 (1974).
       Based on this recognized liberty interest, Dykstra argues IDOC
failed to provide due process for the determination that he is required to
participate in SOTP. 4 Dykstra argues IDOC relied on factual allegations
to which he had never admitted and no court had determined were
accurate. In the context of sex offender registration, we have held that
where a factual inquiry outside the face of the conviction is necessary to
determine sex offender status, “resort to some tribunal must be available
to resolve disputes over these issues.”          Kruse v. Iowa Dist. Ct., 712
N.W.2d 695, 700–01 (Iowa 2006).              Similarly, we previously held an
evidentiary hearing was required when IDOC conducted a sex offender
risk assessment resulting in a heightened requirement of public
notification because the assessment was based on adjudicative facts that


        4Dykstra also complains that he did not receive due process for the

determination that he refused to participate in SOTP. Dykstra does not contend,
however, that he is or was willing to participate in SOTP and therefore does not put
forth any argument for this court to address.
                                     13

were related to the inmate’s sex-offense conviction but were not in the
record. Brummer v. Iowa Dep’t of Corr., 661 N.W.2d 167, 173–75 (Iowa
2003). As this court explained in Brummer,

      “Generally, a person has a constitutional due process right
      to an evidentiary hearing in accordance with contested case
      procedures if the underlying proceeding involves adjudicative
      facts,” i.e., “individualized facts peculiar to the parties, which
      ordinarily ‘ “answer the questions of who did what, where,
      when, how, why, with what motive or intent.” ’ ”

Id. at 172 (quoting Greenwood Manor v. Iowa Dep’t of Pub. Health, 641

N.W.2d 823, 836 (Iowa 2002)).

      In Wolff, 418 U.S. at 558, 94 S. Ct. at 2976, 41 L. Ed. 2d at 952,

the United States Supreme Court held inmates were entitled to

procedural due process protections in disciplinary hearings that could

result in the forfeiture of an inmate’s good-time credits.         The court

identified minimum requirements of procedural due process that must

be satisfied before forfeiture of good-time credit could be imposed:

(1) advance written notice of the claimed violation, (2) a written statement

of the factfinders as to the evidence relied upon and the reasons for the

disciplinary action taken, (3) a hearing, at which the inmate must be

allowed to call witnesses and present documentary evidence, as long as it

would not be unduly hazardous, and (4) a sufficiently impartial

decisionmaker. Wolff, 418 U.S. at 563–71, 94 S. Ct. at 2978–82, 41 L.

Ed. 2d at 955–59. Although later United States Supreme Court cases

recognized certain instances where lesser procedural protections were

required, the Court explained that the Wolff procedures are necessary for

inquiries “designed to elicit specific facts.” Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1, 14, 99 S. Ct. 2100, 2107, 60 L. Ed.

2d 668, 679 (1979), abrogated on other grounds by Sandin, 515 U.S. at

480–84, 115 S. Ct. at 2298–2300, 132 L. Ed. 2d at 427–30.
                                         14

       The Supreme Court has applied the Wolff requirements to a

situation similar to the SOTP classification here. Vitek, 445 U.S. at 494–

97, 100 S. Ct. at 1264–66, 63 L. Ed. 2d at 565–67.                   In Vitek, the

Supreme Court held unconstitutional a Nebraska statute authorizing

correctional officials to classify inmates as mentally ill and transfer them

to mental hospitals for involuntary confinement and mandatory behavior

modification without a hearing and the protections of Wolff.                      Id.

Specifically, Vitek required written notice of the proposed transfer to a

mental hospital, a hearing “sufficiently after the notice to permit the

prisoner to prepare” at which the prisoner may be heard, present

documentary evidence, present witnesses, and cross-examine state

witnesses, an independent decisionmaker, a written statement by the

factfinder of the evidence relied upon, and qualified and independent

assistance. 5 Id.

       Courts have held that corrections departments violate procedural

due process by classifying prisoners who have no sex-offense convictions

for SOTP if they do not afford the procedural requirements identified by

the Supreme Court in Wolff.          See, e.g., Gwinn, 354 F.3d at 1218–19

(holding that classification of inmate who had never been convicted of a
sex offense required the procedural requirements set forth in Wolff:

“notice of the charges, an opportunity to present witnesses and evidence

in defense of those charges, and a written statement by the factfinder of

the evidence relied on”); Neal, 131 F.3d at 831 (holding Hawaii prisoner

who was never convicted of a sex offense did not receive due process

because the inmate was not provided a hearing at which he could have


       5The  court held such assistance was necessary based on the potential mental
state of a prisoner who may be mentally ill. Vitek, 445 U.S. at 496–97, 100 S. Ct. at
1266, 63 L. Ed. 2d at 567.
                                    15

called witnesses and presented documentary evidence, and rejecting

argument that ability to write letters protesting classification satisfied

Wolff).

      Dykstra was entitled to due process because his liberty interest in

earned time was affected by his classification as required to participate in

SOTP. Dykstra argues his due process rights were violated because he

did not receive the protections of Wolff, specifically advance written

notice, a written statement of reasons and findings by the factfinder, and

a neutral factfinder.    Because IDOC relied on unadmitted factual

allegations that did not result in a sex-offense conviction, Dykstra is

correct.

      Dykstra had two meetings regarding his classification. First, at a

“classification or orientation” on December 15, 2005, Dykstra was told he

would be required to attend SOTP. On February 16, 2006, Dykstra had

a “classification hearing” at which he was presented with the SOTP

refusal form and informed of the consequences if he refused SOTP.

These two meetings do not meet the standards of Wolff. Dykstra was not

provided with an opportunity to present witnesses or documentary

evidence. Dykstra was not provided with written notice, or even verbal

notice, of either meeting prior to when they took place.      Additionally,

Dykstra was provided with a generalized refusal form noting potential

reasons for classification and did not receive a written statement of the

specific evidence relied upon and the reasons for his own classification.

      Dykstra also complains that he was not provided a sufficiently

impartial decisionmaker.    According to IDOC policy, the classification

hearing takes place before the “Treatment Team” which includes, at a

minimum, “a counselor, the Associate Warden/Security or designee, and

the Associate Warden/Treatment/unit manager or designee.” The record
                                          16

does not indicate whether this treatment team or only one individual was

present at either Dykstra’s December 15, 2005 meeting or the February

16, 2006 meeting. We are unable on this record to determine whether

the decisionmaker was sufficiently impartial.                 We have previously

explained that within the prison disciplinary system a “sufficiently

impartial” decisionmaker is one who is not “personally involved in the

incident for which discipline is sought or in prior disciplinary actions

against the inmate.” Williams v. State, 421 N.W.2d 890, 895 (Iowa 1988).

Here, the IDOC employee making the SOTP recommendation should not

be one of the decisionmakers determining whether the unadmitted

factual allegations against the inmate are true.

       The State argues Dykstra’s classification should be upheld

regardless of whether he was entitled to additional protections regarding

the factual circumstances of the simple assault because IDOC could

have relied solely on Dykstra’s prior sex offense conviction for indecent

exposure, a sex-offense.          IDOC may have been entitled to rely on

Dykstra’s prior conviction to determine that he was “required” to

participate in SOTP, without providing any additional process. 6 Dykstra

was afforded constitutionally adequate procedural protections in the
form of criminal procedures for his previous sex offense convictions.

Courts have held that inmates currently serving sentences for sex


       6Reliance  on convictions prior to 2001 to classify an inmate serving a sentence
for a crime committed after January 2, 2001 does not violate the . This court has
upheld sentence enhancements based on prior crimes committed before enactment of
the enhancing statute as long as the offense which is subject to enhancement was
committed after enactment. See State v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001)
(“The effective date of the enhanced sentencing provisions gives the offender notice his
future acts will be subject to enhanced punishment based on the prior convictions.”).
However, as noted above, we decline to address whether there may be limits to IDOC’s
discretion where prior history does not demonstrate “a problem currently suffered by
the defendant relating to the need to rehabilitate the defendant or protect the
community from the defendant.” Valin, 724 N.W.2d at 447.
                                      17

offenses are not entitled to any additional procedures prior to being

classified as required to participate in SOTP. As the Ninth Circuit has

explained,

       An inmate who has been convicted of a sex crime in a prior
       adversarial setting, whether as the result of a bench trial,
       jury trial, or plea agreement, has received the minimum
       protections required by due process. Prison officials need do
       no more than notify such an inmate that he has been
       classified as a sex offender because of his prior conviction for
       a sex crime.

Neal, 131 F.3d at 831. In Holm we did not require IDOC to provide the
specific   procedural   protections   identified   in   Wolff for the     initial

classification. Holm, 767 N.W.2d at 417–18. Holm was convicted and

currently serving a sentence for a sex offense and therefore received due

process during the criminal process. It was “undisputed that [Holm] was

convicted of third-degree sexual abuse in violation of Iowa Code section

709.4” and was serving a sentence for this offense. Id. at 412, 418. Sex-

offense convictions provide due process and Holm—unlike Dykstra—had

entered prison to serve a sentence for a sex-offense conviction.          Id. at

412.

       Even if IDOC were entitled to rely solely on Dykstra’s prior sex

offense conviction, IDOC’s actual reliance on the unadmitted factual

allegations surrounding the simple assault cannot be considered

harmless error. Federal courts have applied harmless error analysis to

procedural irregularities in prison disciplinary proceedings. See Howard

v. U.S. Bureau of Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v.

Cotton, 344 F.3d 674, 678 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48,

53 (3d Cir. 1992). As the Second Circuit explained,

       If a person may be convicted and obliged to serve a
       substantial prison sentence notwithstanding a constitutional
       error determined to be harmless, surely the conditions of
                                    18
       confinement of a sentenced prisoner may be made
       temporarily more severe as discipline for a prison rules
       infraction despite a harmless error in adjudicating the
       violation.

Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) (citations omitted).

We agree that harmless error analysis applies to procedural due process

errors in the sex offender classification process.   Cf. Kelly v. Nix, 329
N.W.2d 287, 293 (Iowa 1983) (holding expungement of disciplinary

infraction unnecessary where procedural irregularity was insubstantial

and nonprejudicial).

       Within the context of criminal trials, “[a]n error of constitutional

magnitude does not mandate a new trial if the error was harmless

beyond a reasonable doubt.” State v. Boley, 456 N.W.2d 674, 678 (Iowa

1990); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,

828, 17 L. Ed. 2d 705, 710–11 (1967).        We note, however, that the

standard for prison administrative decisions is “some evidence” as

opposed to the “beyond a reasonable doubt” required in criminal trials.

See Wilson v. Farrier, 372 N.W.2d 499, 501 (Iowa 1985) (“We hold that

the requirements of due process are satisfied if some evidence supports

the decisions by the prison disciplinary board to revoke good time

credits.”).   We find guidance from this court’s explaination of the

harmless error analysis in the context of nonconstitutional errors, which

asks: “ ‘ “Does it sufficiently appear that the rights of the complaining

party have been injuriously affected by the error or that he has suffered a

miscarriage of justice?” ’ ” State v. Paredes, 775 N.W.2d 554, 571 (Iowa

2009) (quoting State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)).      We

reverse unless the record affirmatively establishes there was no

prejudice. Id.
                                     19

      Here, we cannot hold the error was harmless. At argument before

this court, the State conceded that IDOC relied primarily on the factual

allegations regarding Dykstra’s simple assault conviction.        The IDOC

reception report does not explain whether Dykstra’s sex offense

conviction for indecent exposure approximately twenty years prior would

alone cause IDOC to require Dykstra to participate in SOTP. Iowa Code

section 903A.2 vests discretion in IDOC to require SOTP and because we

cannot say how IDOC would have exercised its discretion in the absence

of the facts surrounding the simple assault conviction, we hold Dykstra’s

classification violated due process. Cf. State v. Martens, 569 N.W.2d 482,

485 (Iowa 1997) (“[T]he validity of a verdict based upon facts legally

supporting one theory for conviction of a defendant does not negate the

possibility of a wrongful conviction of a defendant under a theory

containing legal error.”).      We remand to the district court for

determination of what, if any, remedy is required.

      E.    Polygraph.     Dykstra also argues IDOC’s reliance on a

polygraph examination violated his due process rights.       The polygraph

examination focused on the circumstances of the simple assault.          We

hold today in Reilly v. Iowa District Court, ___ N.W.2d ___ (Iowa 2010),

that polygraph examinations are permissible when used by IDOC as part

of treatment. However, IDOC cannot substitute polygraph examinations

for the procedural protections required by Wolff. Cf. State v. Conner, 241

N.W.2d 447, 458–59 (Iowa 1976) (holding polygraph examinations

inadmissible at trial based on considerations of fairness and reliability).

      We decline to hold the Federal and State Due Process Clauses

require a per se rule excluding polygraph examinations in all prison

classification hearings. Prison proceedings “are sui generis, governed by

neither the evidentiary rules of a civil trial, a criminal trial, nor an
                                          20

administrative hearing. The only limitations appear to be those imposed

by due process, a statute, or administrative regulations.” 2 Michael B.

Mushlin, Rights of Prisoners § 9.20, at 208 (3d ed. 2002). Although we

have exercised our supervisory authority over the rules of procedure and

evidence to prohibit the use of unstipulated polygraph examinations in

Iowa courts, Conner, 241 N.W.2d at 459–60, our holding in Conner does

not automatically extend to all prison hearings because it was not based

on due process grounds.          To the extent Bradley v. State, 473 N.W.2d

224, 226 (Iowa Ct. App. 1991), suggests otherwise, it is overruled. 7

       Prison classification hearings take place “in a closed, tightly

controlled environment” and we do not automatically apply all procedural

rules “to the very different situation” of prison hearings. Wolff, 418 U.S.

at 560–61, 94 S. Ct. at 2977, 41 L. Ed. 2d at 953–54. In Lenea v. Lane,

882 F.2d 1171 (7th Cir. 1989), the Seventh Circuit declined to hold that

admission of polygraph examinations in disciplinary hearings necessarily

violates an inmate’s due process rights. 882 F.2d at 1174. The court

explained that due process rights are circumscribed by institutional

needs and objectives in the prison context and “polygraphs may

corroborate     vital   testimony    or   other    evidence”     or   even    provide
exculpatory evidence. Id.; see also Varnson v. Satran, 368 N.W.2d 533,

538 (N.D. 1985) (“[W]e are not persuaded that due process under the

Fourteenth Amendment or our State Constitution forbids, under all

circumstances, a prison disciplinary committee or parole board from

considering the results of a polygraph examination.”).



       7We do not address or overrule the specific holding of Bradley, which prohibited

a prison disciplinary committee from relying on an inmate’s refusal to submit to a
polygraph examination. 473 N.W.2d at 226. Nor do we address the potential
implications of the right against self-incrimination.
                                     21

       Although due process does not prohibit use of polygraph

examinations in all contexts, there may be circumstances where use of a

polygraph examination would likely violate a prisoner’s due process

rights.     In Lenea, the Seventh Circuit agreed with the district court’s

determination that an inmate’s guilt in a disciplinary proceeding could

not be determined based solely on a failed polygraph examination and

that the polygraph examination was relevant only on the question of the

inmate’s credibility. Lenea, 882 F.2d at 1176. The court also noted that

in any particular case, “the threshold question . . . will be the exam’s

reliability, which necessarily will entail a detailed inquiry into polygraph

examinations.” Id. (citation omitted). Similarly, in Varnson, the North

Dakota Supreme Court held admission of the particular polygraph

results did not violate due process, but emphasized that the examination

was administered voluntarily, the inmate had indicated he would rely on

the polygraph results, and the factfinder had relied on other evidence of

the inmate’s guilt. Varnson, 368 N.W.2d at 538 (stating that if prison

officials    “were   basing   disciplinary   decisions    or   parole-release

determinations solely on the results of polygraph examinations, we would

have serious reservations about the propriety of such a procedure”).

       We therefore leave the decision to admit polygraph evidence at a

classification hearing to the discretion of IDOC. As discussed above, this

discretion is bounded by the limits of due process.            There may be

relevant factors which would influence our decision regarding the

constitutionality of IDOC’s reliance on a polygraph in a particular case,

including reliability, qualifications of the polygraph administrator, the

particular purpose for which the polygraph is admitted, and whether the

inmate submitted to the polygraph voluntarily.           IDOC likely cannot
                                    22

replace procedural protections with a polygraph examination or rely

solely on a polygraph examination without violating due process.

      IV.   Conclusion.

      IDOC’s requirement that Dykstra participate in SOTP and the

determination that his ability to accrue earned time be stopped under

Iowa Code section 903A.2 did not violate the Ex Post Facto Clause and

was statutorily authorized.    Dykstra was, however, deprived of due

process because the IDOC relied on unadmitted factual allegations in

reaching the decision to require Dykstra’s participation in SOTP but did

not provide the necessary procedural protections of Wolff v. McDonnell.

Because IDOC violated Dykstra’s due process rights, we remand to the

district court for consideration of the appropriate remedy.

      WRIT SUSTAINED.
