                    IN THE SUPREME COURT OF IOWA
                                     No. 11–1452

                              Filed December 14, 2012


OFFICE OF CITIZENS’ AIDE/OMBUDSMAN,

      Appellee,

vs.

DEB EDWARDS and IOWA DEPARTMENT OF CORRECTIONS,

      Appellants.



      Appeal from the Iowa District Court for Polk County, Joel D. Novak,

Judge.



      An administrative law judge and the department of corrections appeal

the   district   court’s   order   overruling   her   mental-process   privilege   and

compelling her deposition in the Ombudsman’s investigation of her decision in

a prison disciplinary matter. AFFIRMED.



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

Attorney General, for appellants.



      Charles Andrew Teas, Des Moines, for appellee.
                                       2

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
                                        3

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,
                                       4

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 also Iowa 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).
                                        5

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
                                              6

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.



       1Although  the email does not appear in the record, the relevant quote was included in
the Ombudsman’s “Statement of Undisputed Material Facts in Support of [Its] Motion for
Summary Judgment.” The quotation from the email was admitted in the response filed by
IDOC and Edwards. No party contends anything else in that email is relevant to the issues on
appeal. The video of the incident referenced in Edwards’s hearing decision is not in the court
record; however, neither party claims that review of the video would help determine whether a
showing has been made to overcome the mental-process privilege.
                                             7

      The Ombudsman filed a petition in the District Court for Polk County

seeking judicial enforcement of the subpoena issued to Edwards pursuant to

Iowa Code section 2C.9(5). Both parties moved for summary judgment on the

applicability of the mental-process privilege. The Ombudsman argued that the

privilege was only available in judicial proceedings, not in an investigatory

deposition of an IDOC ALJ under chapter 2C. Alternatively, the Ombudsman

argued it had made a sufficient showing to defeat the privilege. Edwards and

IDOC argued the mental-process privilege applied and no showing had been

made to defeat it.     They also contended Linderman’s failure to exhaust his

remedies by seeking postconviction relief precluded further investigation by the

Ombudsman.

      The district court granted the Ombudsman’s motion for summary

judgment.      The court did not decide whether the Ombudsman had made a

showing sufficient to defeat the mental-process privilege if it applied. Instead,

the court noted the Ombudsman “makes a compelling argument that the

‘mental   process    rule’   applies   only      to    judicial   proceedings,    and     not

investigations.” The court ruled that “ALJ Deborah Edwards’s testimony is not

privileged and the [Ombudsman] may take her sworn testimony.” The court

itself acknowledged concern over the precedent set by requiring an ALJ to

submit    to   a   deposition   explaining       her   thought    processes      behind   an

adjudicatory ruling:

            The court is not unmindful of the consequences of precedent
      that could be set. Nevertheless, the negative ramifications of this
      precedent may be mitigated by the narrow facts of this case, and
      that the [Ombudsman] would not likely subpoena ALJs as
      frequently as the Department of Corrections predicts.

      The court ordered Edwards and IDOC to comply with the deposition

subpoena, with no limitations on her testimony. This appeal followed.
                                        8

       II. Standard of Review.

       We review rulings on summary judgment for corrections of errors of law.

Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012).

“Summary judgment is appropriate if there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law.” Id. This

court reviews questions of statutory interpretation for corrections of errors at

law. State v. Overbay, 810 N.W.2d 871, 875 (Iowa 2012).

       We review district court orders regarding the discovery process, including

those enforcing an ombudsman subpoena, for abuse of discretion.         Citizens’

Aide/Ombudsman v. Grossheim, 498 N.W.2d 405, 407 (Iowa 1993). “Abuse of

discretion may be shown where there is no record to support the court’s factual

conclusions, or where the decision is grounded on reasons that are clearly

untenable or unreasonable.” Id. “ ‘A ground or reason is untenable . . . when

it is based on an erroneous application of the law.’ ”      In re Gianforte, 773

N.W.2d 540, 544 (Iowa 2009) (quoting Graber v. City of Ankeny, 616 N.W.2d

633, 638 (Iowa 2000)).

       III. The Statutory Framework.

       We have not previously addressed the applicability of the mental-process

privilege in an investigation by the Ombudsman into the decision of an IDOC

ALJ.   To put the issue in proper context, we will first review the role and

powers of the Ombudsman and then explore the duties of the independent

ALJs in the IDOC. The question of whether Edwards may assert the privilege

against the Ombudsman must be answered against this backdrop. We begin

our analysis by reiterating “that courts are obliged to grant prison officials a

wide berth in the execution of policies and practices needed to maintain prison

discipline and security.” Grossheim, 498 N.W.2d at 407. We also reiterate that

inmates are constitutionally entitled by due process to an impartial ALJ in

prison disciplinary proceedings. Thompson v. State, 533 N.W.2d 215, 216–17
                                       9

(Iowa 1995).      See generally Botsko v. Davenport Civil Rights Comm’n, 774

N.W.2d 841, 848–52 (Iowa 2009) (reviewing due process required in

administrative proceedings).

      A. The Ombudsman’s Role as “Watchdog.”

      1. Purpose of the Ombudsman’s office. In 1972, the general assembly

established the Ombudsman’s office, which serves “as a ‘watch dog’ for state

administrative agencies.”    Citizens’ Aide/Ombudsman v. Miller, 543 N.W.2d

899, 902–03 (Iowa 1996).       The Ombudsman’s “purpose is to investigate

complaints received ‘from any source concerning an administrative action’ of a

state agency.” Id. at 902 (quoting Iowa Code § 2C.12). States created these

offices to safeguard the rights of individuals subject to administrative decision

making, at a time when administrative agencies were gaining an increasing

presence, power, and discretion in state government.      Bernard Frank, State

Ombudsman Legislation in the United States, 29 U. Miami L. Rev. 397, 397–99

(1975) [hereinafter Frank]; see also Thomas A. Mayes, Protecting the

Administrative Judiciary from External Pressures: A Call for Vigilance, 60 Drake

L. Rev. 827, 828 (2012) [hereinafter Mayes] (“[T]he administrative law judiciary

is so integral to the function of the modern state that it is commonly, if not

accurately, referred to as a ‘fourth branch of government.’ ”). Frank noted in

particular that

      [t]he traditional concern for the guaranty of the rights of the
      individual has become even greater in modern society.       The
      activities of public administration have become so comprehensive
      and the power of the bureaucracy so great that the status of the
      individual needs additional protection.

Frank, 29 U. Miami L. Rev. at 398. Iowa was one of the first states to enact

legislation creating the office of the ombudsman. Id. at 397.

      A major issue with the preombudsman administrative system was that,

even if an agency had a channel for complaint, that channel may “lack
                                        10

independence and impartiality.” Id. at 398. In addition to safeguarding the

rights of individuals, the Ombudsman also alleviates some of the burdens

placed on courts, especially in the context of the administrative actions

involving prisoners. Shabazz v. Scurr, 662 F. Supp. 90, 92 (S.D. Iowa 1987)

(“Courts have a special interest in protecting the [Ombudsman’s] problem-

solving function. This Court spends far too many hours in litigation between

prisoners and state officials attempting to remedy problems which could have

been prevented or reconciled informally.”).

      In its role as a “watchdog,” the Iowa Ombudsman has

      the responsibility to investigate complaints from any persons
      regarding administrative actions of Iowa state or local government
      agencies and to render objective opinions or recommendations on
      the complaints, in the interests of resolving complaints and
      improving administrative processes and procedures.

Iowa Admin. Code r. 141—1.1 (2008). If at the conclusion of its investigation

the complaint is substantiated, the Ombudsman may make recommendations

to the administrative agency and, if its recommendation involves changing the

governing statutory law, to the general assembly. See Shabazz, 662 F. Supp.

at 91 (citing Iowa Code §§ 601G.9, .16, now codified as §§ 2C.9, .16); see also

Iowa Admin. Code r. 141—2.11(3), (5).

      2. The Ombudsman’s subpoena power. The Ombudsman has statutory

authority to investigate agency action, with certain exceptions.     Iowa Code

§ 2C.9(1). This includes the power to “[i]ssue a subpoena to compel any person

to appear, give sworn testimony, or produce documentary or other evidence

relevant to a matter under inquiry.”     Id. § 2C.9(5).   The judicial branch is

beyond the reach of the Ombudsman’s investigatory power. See id. § 2C.1(2)(a)

(excluding from the definition of agency “[a]ny court or judge or appurtenant

judicial staff”). Edwards, however, is employed by IDOC, a state agency, not

the judicial branch. As an agency employee, she falls outside the exclusion for
                                                  11

“judges” in section 2C.1(2)(a). 2 But, the question remains whether, as an IDOC

ALJ, Edwards may assert a common law mental-process privilege or immunity

against compelled testimony.                See § 2C.21 (allowing persons required to

provide information to the Ombudsman to assert “the same privileges and

immunities as are extended to witnesses in . . . [Iowa] courts”).



        2Under a plain language reading of section 2C.l(2)(a), the term “judge” next to “court”

refers to judges in the judicial branch, not ALJs operating in state agencies.             This
interpretation is supported by the drafter’s comments to model ombudsman acts with the same
language excluding courts and judges from the ombudsman’s purview. “In the absence of
instructive Iowa legislative history, we also look to the comments and statements of purpose
contained in Uniform Acts to guide our interpretation of a comparable provision in an Iowa
Act.” Alcor Life Extension Found. v. Richardson, 785 N.W.2d 717, 722 (Iowa Ct. App. 2010); see
also Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 115 (Iowa 2011) (“Our court has
relied on the drafter’s comments to the Uniform [Comparative Fault] Act in construing the Iowa
act.”).
       At the time the general assembly passed the Iowa Citizens’ Aide legislation, there were
two predominate model ombudsman acts. See Frank, 29 U. Miami L. Rev. at 399. Iowa’s act,
when passed, contained language similar to that found in Professor Walter Gellhorn’s
Annotated Model Ombudsman Statute. See id. at 399 n.6; see also Walter Gellhorn, Appendix:
Annotated Model Ombudsman Statute, in Ombudsmen for American Government?, 159–71
(American Assembly, ed. 1968) [hereinafter Gellhorn] (reproducing Professor Gellhorn’s
Annotated Model Ombudsman Statute). Gellhorn’s model act later served as the basis for the
American Bar Association’s Model Ombudsman Statute for State Governments, which was
published in 1974, two years after the enactment of Iowa Code chapter 2C. Frank, 29 U.
Miami L. Rev. at 401. The ABA’s model act and comments reflect a contemporaneous
understanding that the exclusion for courts and judges is limited to the judicial branch.
       The 1974 version of the ABA’s model ombudsman statute contains an identical
exclusion to Iowa’s for “any court, or judge and appurtenant judicial staff.” Compare id. at 404,
with Iowa Code § 2C.1(2)(a). The comment accompanying the ABA exclusion states:
        An exclusion of the judicial branch rests on its traditional independence and
        immunity from investigation; its internal review mechanisms (e.g., judicial
        conference); its continuous review by the profession (viz., Bar); and, in some
        states, its review by judicial commissions.
Frank, 29 U. Miami L. Rev. at 405 (emphasis added). This comment is consistent with a
similar discussion found in the comments to Professor Gellhorn’s model statute. See Gellhorn,
at 160 (“Traditional immunization of courts against extra-judicial scrutiny argues against
permitting an American ombudsman to inquire into a judge’s behavior.”).
        The Iowa Judicial Branch consists of the supreme court, the court of appeals, the
district court, the clerks of all of the courts of this state, juvenile court officers, court reporters,
and all other court employees. See Iowa Code § 602.1102. The Iowa Judicial Branch does not
include ALJs employed by the IDOC.
                                               12

         Generally, a court is to enforce an Ombudsman subpoena, “so long as

the four-factor test we adopted in Roadway is met.” Grossheim, 498 N.W.2d at

407.      The four-factor test requires that the subpoena be “ ‘(1) within the

statutory authority of the agency, (2) reasonably specific, (3) not unduly

burdensome, and (4) reasonably relevant to the matters under investigation.’ ”

Id. at 406 (quoting Iowa City Human Rights Comm’n v. Roadway Express, Inc.,

397 N.W.2d 508, 510 (Iowa 1986)).                   The first prong is at issue here.

Specifically, we must decide whether the Ombudsman has the authority to

depose an IDOC ALJ regarding her decision adjudicating an inmate’s violation

of prison rules and imposing penalties. This requires an analysis of the role of

IDOC ALJs in prison disciplinary proceedings.

         B. The Role of IDOC ALJs in Prisoner Disciplinary Proceedings. Our

review of the governing statutes confirms IDOC ALJs are to be independent and

impartial adjudicators performing a quasi-judicial role in prison disciplinary

cases.

         1. IDOC ALJs are to be impartial, independent adjudicators. 3                      “[A]n

impartial tribunal is a fundamental right imposed by due process in [prison]

disciplinary proceedings.” Thompson, 533 N.W.2d at 216. The director of the

IDOC is statutorily required to appoint “independent” ALJs to preside over
prisoner disciplinary hearings. Iowa Code § 903A.1 (“The director of the Iowa


         3Although impartiality and independence are sometimes used interchangeably, they are
distinct concepts. See Mayes, 60 Drake L. Rev. at 827 n.1. “[I]mpartiality . . . refers to ‘fair-
minded, neutral decisionmaking,’ ” whereas, independence, “a ‘subset of impartiality,’ is
‘ “autonomy and insusceptibility to external guidance, influence, or control.” ’ ” Id. (quoting
James E. Moliterno, The Administrative Judiciary’s Independence Myth, 41 Wake Forest L. Rev.
1191, 1200, 1202–03 (2006)). Mayes goes on later to discuss the interconnected relationship
between independence and impartiality, calling independence a “means of protecting
impartiality.” Id. at 835, 836 (“If independence is a protector of impartiality and some degree of
impartiality is a required attribute of the administrative judiciary, I suggest that some amount
of lawmaking independence and autonomy, albeit to a lesser degree, is necessary for the
administrative judiciary.” (Footnotes omitted.)).
                                             13

department of corrections shall appoint independent administrative law judges

whose duties shall include but are not limited to review, as provided in section

903A.3, of the conduct of inmates in institutions under the department.”

(Emphasis added.)); id. § 903A.3(1) (“[T]he independent administrative law

judge may order forfeiture of any or all earned time . . . .” (Emphasis added)).

IDOC’s administrative regulations require ALJs to be impartial and to make

their decisions “solely on information obtained in the hearing process.” Iowa

Admin.       Code   r.   201—50.21(4)(b)(13)      (emphasis     added);     id.   r.   201—

50.21(4)(b)(10); 4 IDOC Policy IO-RD-01(IV)(D)(11); see also Thompson, 533

N.W.2d at 216–18 (discussing impartiality required of IDOC ALJs).

       Significantly, to preserve their independence, IDOC ALJs report to and

are supervised by the general counsel for the IDOC rather than the warden.

See Iowa Admin. Code r. 201—1.8(6)(e). Savala testified as follows:

       [T]he Iowa Code requires that we have independent administrative
       law judges at the facilities and they report to me in Des Moines as
       general counsel to maintain that independence. That’s why I’m
       their supervisor.
              So they are not aligned with anybody at the facility whether
       that’s -- they’re not aligned with security, they’re not reporting to
       the warden or anyone else. They report to me to maintain that
       judicial independence.

Thus, IDOC’s general counsel, not the warden, hires and fires the ALJs,

approves their vacation and sick leave, and conducts evaluations of their

performance.




       4We  note that ALJs employed by the IDOC are not subject to certain laws governing
ALJs in other state agencies deciding contested cases under Iowa Code chapter 17A. See Iowa
Code § 903A.1 (“Sections 10A.801 and 17A.11 do not apply to administrative law judges
appointed pursuant to this section.”). In particular, the Code of Administrative Judicial
Conduct, which by its express language applies to presiding officers in contested cases under
section 17A.11, does not govern the conduct of ALJs for the IDOC. See Iowa Admin. Code r.
481—10.29.
                                           14

      2. IDOC ALJs act as quasi-judicial officers in prison disciplinary

proceedings. The quasi-judicial role played by IDOC ALJs is confirmed by a

review of the prison disciplinary process.

      The prison disciplinary process begins upon discovery of an inmate rule

violation. Prison staff members are required to prepare a disciplinary report

with the following information:

              1. Specific rule(s) violated;
              2. A statement of the charge;
              3. Any unusual prisoner behavior;
              4. Any staff witnesses;
            5. An explanation of the event that includes who was
      involved, what transpired, and the time and location of the
      occurrence;
              6. Any physical evidence and its disposition; [and]
              7. Any immediate action taken, including the use of force.

See id. r. 201—50.21(4)(b)(3). An impartial investigation of the violation must

begin within twenty-four hours of when the violation was first reported. See id.

r. 201—50.21(4)(b)(4).

      The disciplinary hearing must “be conducted no later than seven days,

excluding weekends and holidays, following the report of the alleged rule

violation.”   Id. r. 201—50.21(4)(b)(8).      The prisoner must “receive a written

statement of the charge(s), including a description of the incident and the

specific rule(s) violated . . . at least 24 hours prior to the disciplinary hearing.”

Id. r. 201—50.21(4)(b)(6). The prisoner is entitled to be “present at the hearing,

unless the prisoner waives that right in writing or is a threat to the security

and safety of the facility.”     Id. r. 201—50.21(4)(b)(7).   The prisoner is also

entitled “to make a statement and present documentary evidence at the

hearing and to call witnesses on their behalf unless calling witnesses creates a

threat to security or safety of the facility.” Id. r. 201—50.21(4)(b)(11).
                                        15

      When presiding over a prison disciplinary hearing, the ALJ considers the

evidence presented and writes a report with her decision and the “supporting

reasons.”      See id. r. 201—50.21(4)(b)(14).    Linderman was charged with

assault. Under IDOC policies,

      an offender commits assault when the offender intentionally
      causes or threatens to cause injury to another person or applies
      any physical force or offensive substance (i.e. feces, urine, saliva,
      mucous) or any other item against any person regardless of
      whether injury occurs.

IDOC Policy IO-RD-01(IV)(P)(4)(2). The policy differentiates between two classes

of assaults.    An assault is class “A” “if [a] weapon or potentially infectious

bodily fluids, secretions, tissue, or excrement [has] been used.” Id. All other

assaults are class “B.”        Id.   However, under IDOC policies, “[i]f the

Administrative Law Judge determines that the factors or circumstances of an

offense are more serious than the charged offense, the sanction may be

upgraded to the next class.”     Id. IO-RD-01(III)(B).   If the ALJ makes such a

determination, then she must “specify in writing the aggravating circumstances
warranting a change in sanction.” Id. IDOC policy states that “[a]ggravating

factors may include, but are not limited to, history of violence, use of weapon,

severity of injury, significant impact to institutional operations, repeat

infractions, and premeditation.” Id.

      A copy of the report prepared by the ALJ must then be given to the

prisoner.   See Iowa Admin. Code r. 201—50.21(4)(b)(14).        The prisoner has

twenty-four hours to “appeal the decision to the jail administrator or designee.”

Id. r. 201—50.21(4)(c); see also Iowa Code § 903A.3(2). However, even if the

prisoner does not appeal the decision, IDOC regulations provide for automatic

appeal, whereby “the jail administrator or designee [is required] to review all

disciplinary hearings and dispositions to ensure conformity with the jail policy

and procedures.”       Iowa Admin. Code r. 201—50.21(4)(b)(15).         The jail
                                              16

administrator at FDCF is the warden.               On appeal, the warden “may either

affirm, modify, remand for corrections of procedural errors, or reverse an

order.”    Iowa Code § 903A.3(2).           However, the warden may not increase

sanctions issued by the ALJ. Id. After exhausting the administrative remedies

provided in Iowa Code section 903A.3, a prisoner who claims that the

“reduction of sentence pursuant to sections 903A.1 through 903A.7 has been

unlawfully forfeited” may seek postconviction review under chapter 822.                     Id.

§ 822.2(1)(f). 5

       With this statutory backdrop in mind, we now turn to analyze whether

an IDOC ALJ such as Edwards can assert the mental-process privilege during

an Ombudsman’s investigation.

       IV. The Mental-Process Privilege.

       We begin with an overview of the mental-process privilege. “It has long

been recognized that attempts to probe the thought and decision making



       5Edwards   and IDOC argued allowing the Ombudsman’s investigation to go forward
would undermine the principles of the exhaustion doctrine, which requires a party challenging
an administrative action to exhaust all of its administrative remedies before pursuing review of
that action in court. See Aschan v. State, 446 N.W.2d 791, 792–94 (Iowa 1989) (holding that
prisoners must exhaust all administrative remedies before seeking postconviction review).
Whether Linderman exhausted all administrative and judicial remedies is irrelevant to
determining whether the Ombudsman has authority to investigate the administrative action.
As IDOC and Edwards acknowledge, the Iowa Code permits the Ombudsman to undertake
such investigations “without regard to the finality of the administrative action.” Iowa Code
§ 2C.9(1).   This authorizes the Ombudsman to pursue an investigation separate and
independent from any administrative or judicial remedy available to the complainant,
consistent with the Ombudsman’s role:
       The Ombudsman provides the citizen with an expert and impartial agent who
       acts informally, without time delay, without cost to the complainant, and
       without the requirement of counsel or an adversary proceeding, to determine
       whether the complainant has been wronged by government, and, if so, to
       recommend corrective action. He supplements and does not replace existing
       institutions.
Frank, 29 U. Miami L. Rev. at 399 (emphasis added). Thus, under this provision, the
Ombudsman’s power to commence an investigation of agency action is not dependent upon
whether the complainant seeks administrative and judicial review of the agency action.
                                        17

processes of judges and administrators are generally improper.”          Grant v.

Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993) (citing United States v. Morgan,

313 U.S. 409, 422, 61 S. Ct. 999, 1004–05, 85 L. Ed. 1429, 1435–36 (1941)).

The Grant court observed “ ‘the process of agency adjudication is currently

structured so as to assure that the [ALJ] exercises his independent judgment

on the evidence before him, free from pressures by the parties or other officials

within the agency’ . . . [in a role] ‘ “functionally comparable” ’ to that of a

judge.” Id. (citations omitted) (quoting Butz v. Economou, 438 U.S. 478, 513,

98 S. Ct. 2894, 2914, 57 L. Ed. 2d 895, 920 (1978)). We note the same is true

of the role of IDOC ALJs in prison disciplinary cases. In Grant, Judge Alito

cautioned that allowing discovery into the ALJ’s thought processes “would have

a deleterious effect on the independence of ALJs.” Id. We share these concerns

here.

        “The mental process privilege is a corollary to the deliberative process

privilege that protects uncommunicated motivations for a policy or decision.”

Thomas v. Cate, 715 F. Supp. 2d 1012, 1024 (E.D. Cal. 2010) (internal

quotation marks omitted). Both are qualified privileges “that may be overcome

by a litigant.” Id. at 1025; Martin Marietta, 675 N.W.2d at 554–55 (recognizing

mental-process privilege may be overcome by strong showing of bad faith or

misconduct). By contrast, the judicial deliberative privilege is absolute. In re

Enforcement of a Subpoena, 972 N.E.2d 1022, 1033 (Mass. 2012) (“This

absolute privilege covers a judge’s mental impressions and thought processes

in reaching a judicial decision, whether harbored internally or memorialized in

other nonpublic materials.”).

        The leading case for the mental-process privilege is Morgan. In that case,

the Secretary of Agriculture entered an order following a quasi-judicial

proceeding to set maximum rates charged by market agencies at the Kansas

City stockyards.    Morgan, 313 U.S. at 413, 61 S. Ct. at 1000, 85 L. Ed. at
                                        18

1430–31. In an action challenging the order in federal court, the Secretary,

over the government’s objection, was called as a witness.         Id. at 421–22, 61

S. Ct. at 1004, 85 L. Ed. at 1435. “He was questioned at length regarding the

process by which he reached the conclusions of his order, including the

manner and extent of his study of the record . . . .” Id. at 422, 61 S. Ct. at

1004, 85 L. Ed. at 1435. The U.S. Supreme Court held the Secretary “should

never have been subjected to this examination” and admonished that “ ‘it was

not the function of the court to probe the mental processes of the Secretary.’ ”

Id. (quoting Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82

L. Ed. 1129, 1132 (1938)). The Morgan Court stated, “Just as a judge cannot

be subjected to such a scrutiny, so the integrity of the administrative process

must be equally respected.” Id. at 422, 61 S. Ct. at 1004–05, 85 L. Ed. at 1435

(citation omitted).

        We applied the mental-process privilege in DeCoster. DeCoster, a large-

scale    hog   producer   responsible   for   manure    spills,    challenged   the

Environmental Protection Commission’s (EPC) decision to refer violations of the

state pollution laws to the attorney general for prosecution.        DeCoster, 608

N.W.2d at 787. DeCoster sought to call six of the nine EPC commissioners as

witnesses. Id. at 790. The district court allowed limited examination of the

EPC chair regarding the referral criteria, but “prohibited counsel from inquiring

into the reasoning behind the commission’s vote, and also prevented DeCoster

from calling the other commissioners as witnesses.”       Id.     We concluded the

district court “plainly acted within its broad discretion to limit the examination

of the commissioners concerning their mental processes in reaching their

referral decisions.” Id. We noted that “type of examination . . . was rejected

over half a century ago by the United States Supreme Court in [Morgan].” Id.

        Thus, persons acting in a quasi-judicial capacity generally are immune

from compulsory discovery into the mental processes behind their decision
                                      19

making.   See id.; In re Gianforte, 773 N.W.2d at 549 (holding school board

members who terminated teacher could not be compelled to answer

interrogatories); Martin Marietta, 675 N.W.2d at 553–54 (members of board of

adjustment generally cannot be deposed as to “the mental processes of . . . how

they reached their decision” without a strong showing of bad faith or

misconduct sufficient to defeat the privilege). Accordingly, we look to whether

Edwards functioned in a quasi-judicial capacity in Linderman’s case to

determine whether she may assert the mental-process privilege.

      One test articulated by our court to determine whether a tribunal
      [or individual] is exercising a quasi-judicial function is whether
      “the questioned act involves a proceeding in which notice and
      opportunity to be heard are required;” or whether a “determination
      of rights of parties is made which requires the exercise of
      discretion in finding facts and applying the law thereto.”

Waddell v. Brooke, 684 N.W.2d 185, 191 (Iowa 2004) (quoting Buechele v. Ray,

219 N.W.2d 679, 681 (Iowa 1974)) (describing a test used in determining

whether writ of certiorari should be granted). We are convinced that Edwards

indeed served in a quasi-judicial role in Linderman’s disciplinary hearing. As

described above, she presided over his hearing, made findings as to his

violation of prison rules, and imposed penalties. Additionally, Linderman was

required to be given notice and an opportunity to be heard.

      We next decide whether Edwards may invoke the mental-process

privilege to limit questioning by the Ombudsman in an investigatory deposition.

      A. Does the Mental-Process Privilege Apply in the Ombudsman’s

Investigation? The district court ruled Edwards could not invoke the mental-

process privilege because, as the Ombudsman contended, that privilege is only

available in judicial proceedings. We disagree. Section 2C.21 is dispositive.

That section provides:

            A person required by the citizens’ aide to provide information
      shall be paid the same fees and travel allowances as are extended
      to witnesses whose attendance has been required in the district
                                           20
      courts of this state. Officers and employees of an agency shall not
      be entitled to such fees and allowances. A person who, with or
      without service of compulsory process, provides oral or
      documentary information requested by the citizens’ aide shall be
      accorded the same privileges and immunities as are extended to
      witnesses in the courts of this state, and shall also be entitled to be
      accompanied and advised by counsel while being questioned.

Iowa Code § 2C.21 (emphasis added).           We enforce the plain language of the

statute and conclude the district court erred in ruling the mental-process

privilege is categorically unavailable during deposition testimony in an

Ombudsman’s investigation.

      We hold IDOC ALJs are entitled to assert the mental-process privilege in

an Ombudsman’s investigatory deposition absent a strong showing of bad faith

or improper behavior sufficient to overcome the privilege.            We next address

whether a sufficient showing was made to overcome Edwards’s assertion of the

privilege in this case.

      B. Did the Ombudsman Make a Strong Showing of Bad Faith or

Improper Behavior? “There is a ‘presumption of regularity that attaches to

the decisions of administrative agencies’ that protects them against inquiry into

how they reach their decisions based upon mere suspicion.” Martin Marietta,

675 N.W.2d at 554 (quoting Wright v. Indus. Comm’n, 103 N.W.2d 531, 535

(Wis. 1960)).       “However, that presumption may be overcome by a ‘strong

showing of bad faith or improper behavior’ . . . .”          Id. (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 825, 28

L. Ed. 2d 136, 155–56 (1971)).          Our focus in this case is on “improper

behavior” by the warden and Edwards.                Black’s Law Dictionary lists two

definitions   for     “improper”:   “[i]ncorrect;   unsuitable   or    irregular”   and

“[f]raudulent or otherwise wrongful.”         Black’s Law Dictionary 826 (9th ed.

2009). “Improper behavior” appears in the definition of “misconduct,” which is

defined as “[a] dereliction of duty; unlawful or improper behavior.” Id. at 1089.
                                       21

      A party seeking to make a strong showing of improper behavior to justify

disregarding the mental-process privilege must make more than “bare

allegations and conclusory statements.” Kholeif v. Bd. of Med. Exam’rs, 497

N.W.2d 804, 806 (Iowa 1993).       The litigant must “point to objective facts

sufficient to convince a reasonable fact finder that bias exists.”     Id. at 807

(enforcing statutory requirement of affidavit supporting bias claim to obtain

closed-session deliberations of board of medical examiners in license-

revocation proceeding). Notably, this does not require the party to conclusively

prove there was improper behavior. In Martin Marietta, we noted a “preliminary

showing of improper behavior” would be sufficient to allow inquiry into the

mental processes of board members. 675 N.W.2d at 555; see also McGoldrick

v. Koch, 110 F.R.D. 153, 155 (S.D.N.Y. 1986) (“[W]here a party has made a

prima facie showing that the decision by an agency or a judicial officer is

tainted by impropriety, the decision-making process may be an appropriate

subject of inquiry.”).

      In the absence of such a strong showing, the mental-process privilege

limits the questions counsel may ask the party asserting the privilege.

Generally, the questioning “is ‘limited to information concerning the procedural

steps that may be required by law and does not extend to inquiries into the

mental processes of an administrator which, as being part of the judgmental

process, are not discoverable.’ ” DeCoster, 608 N.W.2d at 790 (quoting People

for Envtl. Enlightenment & Responsibility (PEER), Inc. v. Minn. Envtl. Quality

Council, 266 N.W.2d 858, 873 (Minn. 1978)).        In DeCoster, we upheld the

mental-process privilege because the record in that case was “devoid of any

proof—or even a hint—of political influence affecting the deliberations at issue.”

Id.

      By contrast, in this case, the Ombudsman contends undisputed facts in

the record establish a showing sufficient to overcome the privilege. Edwards
                                       22

and IDOC contend otherwise.       The district court did not decide whether the

requisite showing was made because it erroneously concluded the privilege is

unavailable during an Ombudsman’s investigation.        Ordinarily, we do not

decide issues not reached by the district court, but we may affirm an order on

alternative grounds supported by the record and urged below. See Venard v.

Winter, 524 N.W.2d 163, 165 (Iowa 1994) (“[A] successful party need not cross-

appeal to preserve error on a ground urged but ignored or rejected by the

district court.”).   Here, we are well positioned to do so because the parties

already briefed this issue before the district court and on appeal, no party has

requested the opportunity to offer additional evidence, and undisputed facts in

the record are determinative. In that respect, this appeal differs from Martin

Marietta, a case we remanded with directions to allow limited depositions of

quasi-judicial decision makers before the district court reevaluated whether the

requisite showing had been made.

      In that case, Martin Marietta applied for a conditional use permit to the

county board of adjustment, which was denied, even though it had approved a

similar application for a neighboring property. Martin Marietta, 675 N.W.2d at

547–49.    Martin Marietta argued that a key witness, the county director of

planning and development, Murray McConnell, who had previously voiced his

support for Martin Marietta’s application, “did an about face” because he “had

allegedly been threatened with the loss of his job.”      Id. at 552.    Martin

Marietta’s attorney filed an affidavit attesting that was what McConnell told

him; McConnell filed his own affidavit denying the conversation took place. Id.

Martin Marietta sought depositions of McConnell and members of the board of

adjustment and board of supervisors “to determine whether undue influence

had been exercised.” Id.

      The district court granted the county’s motion for protective order to

prohibit the depositions of the board members.       Id. at 553.   We reversed,
                                        23

concluding that, although Martin Marietta had failed to make a sufficient

showing of bad faith or impropriety to defeat the mental-process privilege at

that stage, it was entitled to depose the board members regarding their

communications. Id. at 554. “In that way, Martin Marietta would at least have

the opportunity to establish preliminarily that Board of Adjustment members

were indeed subject to improper influence that might have led to its decision.”

Id. (“Unless such discovery is allowed, how else could Martin Marietta make

such a preliminary showing?”).        We noted that a preliminary showing of

improper influence “would be more than a mere suspicion and would in our

judgment overcome the presumption of regularity.”             Id.; see also In re

Enforcement of a Subpoena, 972 N.E.2d at 1033 (clarifying that the judicial

deliberative privilege does not preclude inquiry “into whether a judge was

subjected to improper ‘extraneous influences’ or ex parte communications

during   the   deliberative   process   [because,]   [b]y   definition,   such   ...

communications lie outside the protected sphere of the judge’s internal

deliberations”).

      Thus, in Martin Marietta, we remanded the case to allow depositions of

the quasi-judicial decision makers to proceed in stages:

             On remand the district court shall allow discovery
      depositions . . . limited to whether there was communication with
      the Board of Adjustment members and what that communication
      was. If the district court determines that Martin Marietta has
      made a showing that such communications were improper or made
      in bad faith, it may allow Martin Marietta to inquire into the
      mental processes of the Board of Adjustment members in reaching
      their decision.

Martin Marietta, 675 N.W.2d at 557.

      This two-step approach was appropriate in that case because whether

improper ex parte communications had occurred was sharply disputed in the

record on appeal, thus leading us to conclude that Martin Marietta had not yet

made a sufficiently strong showing. Id. at 554. Allowing limited depositions on
                                       24

remand provided Martin Marietta the opportunity to make a record while

protecting the privilege unless and until the district court determined an

adequate showing had been made to overcome it. Id. By contrast, in this case,

undisputed facts in the existing record establish the requisite showing to

overcome Edwards’s assertion of the privilege.

      Significantly, it is undisputed the warden sent a prehearing email to

Edwards stating, “Please exercise sanctions to fit situation (180 to 365).” We

cannot condone such ex parte communications from a warden to the IDOC

ALJ, whose independence is statutorily mandated, particularly when the

warden himself is to hear the inmate’s appeal. See Botsko, 774 N.W.2d at 853

(“The combination of advocacy and adjudicative functions has the appearance

of fundamental unfairness in the administrative process.”); see also Iowa

Admin. Code r. 201—50.21(4)(b)(13) (requiring ALJs to make their decisions

“solely on information obtained in the hearing process”); Mayes, 60 Drake L.

Rev. at 829 (“In the context of the administrative judiciary, the Supreme Court

has stated that administrative hearing officers are to be ‘free from pressures by

the parties or other officials within the agency.’ ” (quoting Butz, 438 U.S. at

513, 98 S. Ct. at 2914, 57 L. Ed. 2d at 920)).    The facial impropriety of the

warden’s email to Edwards is all the more troubling because he is statutorily

prohibited from increasing sanctions on appeal.     See Iowa Code § 903A.3(2).

We conclude this email, in combination with other evidence, shows improper

conduct sufficient to overcome Edwards’s mental-process privilege.

      The other undisputed facts include: (1) Edwards’s initial sanction

doubled the allowable sanction for loss of earned time for a class “B” assault

and matched the warden’s suggested penalty; (2) the assault did not involve a

weapon or bodily fluids to justify the penalty imposed; (3) no other aggravating

factors were listed; and (4) Edwards changed the assault to class “A” after the

Ombudsman’s investigation commenced, without listing any enumerated
                                            25

factors or using the term “aggravated” as seen in other decisions.                    The

Ombudsman also argues Edwards told the assistant Ombudsman twice in

informal, unsworn interviews that she chose not to aggravate her initial

decision, while the warden stated she intended to aggravate the assault to a

class “A” all along. We give no weight to these statements, however, because

Edwards did not stipulate or otherwise admit to making those statements, and

the assistant Ombudsman submitted no affidavit attesting that such

statements were made by Edwards.                 We instead rely on the undisputed

evidence in the record.

      Edwards alone can explain whether the warden’s prehearing email or

later communications influenced her decisions as to Linderman’s discipline;

however, she cannot do so without revealing her mental processes. Edwards

and IDOC have declined to waive the mental-process privilege voluntarily. 6 As

the court observed in North Pacifica, LLC v. City of Pacifica, “perhaps the most

important factor in determining whether the deliberative process privilege

should be overcome [is] the availability or unavailability of comparable evidence

from other sources.” 274 F. Supp. 2d 1118, 1124 (N.D. Cal. 2003). This factor

further supports overcoming Edwards’s mental-process privilege. Compulsory

testimony from an ALJ as to why she made a particular decision should be a
last resort. Here, the Ombudsman has no other means to ascertain whether

her independence was compromised by improper influence.

      We conclude the Ombudsman has made the strong showing required to

overcome Edwards’s mental-process privilege. Accordingly, the district court

did not abuse its discretion by overruling Edwards’s mental-process privilege

and ordering her to submit to the Ombudsman’s deposition.                   We hold the

      6The   mental-process privilege can be waived by its holder. In re Enforcement of a
Subpoena, 972 N.E.2d at 1034 n.7 (noting judge may waive judicial deliberative privilege to
defend allegations of partiality).
                                        26

Ombudsman      is   entitled   to   depose   Edwards   not   only   regarding   her

communications with the warden and others, but also regarding her thought

processes to explain her decisions in Linderman’s disciplinary proceedings.

      V. Conclusion.

      We hold administrative law judges in the department of corrections are

entitled to assert the mental-process privilege in an Ombudsman investigation,

but that privilege may be overcome upon a strong showing of bad faith or

misconduct. For the reasons explained above, the Ombudsman has made the

requisite showing to overcome Edwards’s assertion of the privilege as to her

decision in Linderman’s disciplinary proceeding.        We therefore affirm the

district court’s order overruling her mental-process privilege and compelling

her to submit to the Ombudsman’s deposition.

      AFFIRMED.

      All justices concur except Zager, J., who dissents.
