                   IN THE SUPREME COURT OF IOWA
                               No. 07–1456

                           Filed June 11, 2010


RORY REILLY,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR
HENRY COUNTY,

      Defendant.



      Certiorari from the Iowa District Court for Henry County, John G.

Linn, Judge.



      Inmate challenges inability to accrue earned-time credits based on

removal from sex offender treatment program because of a failed

polygraph examination. 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.

        Rory Reilly filed a postconviction action challenging the Iowa

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

earned time because he was removed from a sex offender treatment

program (SOTP).        While serving his sentence for a lascivious acts

conviction, IDOC required Reilly to participate in SOTP.              While

participating in the program, Reilly failed a polygraph examination and

was removed from SOTP, leading to a determination that he was

ineligible to accrue further earned time.     We hold IDOC’s removal of

Reilly from SOTP violated his due process rights. We also hold IDOC is

not prohibited from using polygraph examinations within SOTP.           We

sustain the writ of certiorari.

        I.      Background Facts and Proceedings.

        Rory Reilly was convicted of lascivious acts with a child under Iowa

Code section 709.8 (1999) based on an offense that took place in March,

2001.        He began serving his sentence in December, 2005.         IDOC

determined Reilly was required to participate in SOTP.       As part of the

treatment, IDOC administered a specific issue polygraph examination to

Reilly because Reilly’s account of his sexual offense differed in some way

from his victim’s account. Reilly failed the polygraph examination, and

IDOC removed him from SOTP because of the failed polygraph test.

        Once removed from SOTP, IDOC stopped Reilly’s ability to earn

time to reduce his sentence pursuant to Iowa Code section 903A.2

(Supp. 2005). Prior to his removal, Reilly’s tentative discharge date was

March 20, 2008. After his removal, Reilly’s tentative discharge date was

June 13, 2010. Reilly was later reinstated into SOTP, and his discharge
                                           3

date was changed to May 27, 2008. Therefore, his temporary removal

from SOTP added approximately two months to Reilly’s sentence. 1

       Reilly appealed his removal from SOTP to the deputy warden, and

his appeal was denied.         He then filed a postconviction petition under

Iowa Code section 822.2(1)(f), 2 or in the alternative section 822.2(1)(e) or

Iowa Code chapter 17A.             The district court determined review was

appropriate under Iowa Code section 822.2(1)(f) and denied Reilly’s

petition on the merits. Reilly appealed.

       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 issues of statutory construction for errors at law.” In

re A.W., 741 N.W.2d 793, 806 (Iowa 2007).                 However, Reilly’s claims

alleging violations of his constitutional rights 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.

       As set forth in the companion case, Dykstra v. Iowa District Court,

___ N.W.2d ___, ___ (Iowa 2010), section 903A.2, which establishes


       1It is unclear from the record whether Reilly was discharged on May 27, 2008

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.
       2The   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.
                                   4

inmates’ ability to earn time, was amended in 2000, effective January 1,

2001, and in 2005. IDOC applied the 2005 amendment to Reilly, which

states:

      [A]n 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). IDOC therefore stopped Reilly’s

ability to accrue earned time when he was removed from SOTP.

      Reilly raises four arguments in his postconviction petition. First,
Reilly argues IDOC’s application of the 2005 amendment to him violated

the Ex Post Facto Clauses of the Iowa and United States Constitutions

because he committed the crime prior to the effective date of the 2005

amendment. Second, Reilly argues the 2005 amendment cannot be read

retroactively to apply to his sentence.    Third, Reilly argues his due

process rights were violated. Finally, Reilly argues it was improper for

IDOC to remove him from SOTP and also stop his ability to earn time

based on a failed polygraph examination.

      A.   Ex Post Facto Clause.    This court has previously held that

IDOC’s application of amended Iowa Code section 903A.2 to inmates

whose crimes occurred prior to January 1, 2001, the effective date of the

2001 amendment to section 903A.2, violates the Ex Post Facto Clause.

State v. Iowa Dist. Ct., 759 N.W.2d 793, 802 (Iowa 2009). This court held

in Holm v. Iowa District Court, 767 N.W.2d 409, 416 (Iowa 2009), 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 because the

2005 amendment was a clarification of the 2001 amendment. Because

Reilly was convicted for acts that took place in 2001, IDOC’s application
                                     5

of the 2005 amendment to Reilly did not violate the Ex Post Facto

Clause.

      B.   Retroactivity.   Reilly 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 reject this argument, as we did

in Holm, because the 2005 amendment did not change the existing law,

but merely clarified existing law.   See Holm, 767 N.W.2d at 416 n.3.

Therefore, there is no basis to claim the 2005 amendment is applied

retroactively to persons whose crimes were committed after the 2001

amendment.

      C. Due Process. Reilly argues he was denied due process under

the Iowa and United States Constitutions when he was removed from

SOTP and his ability to accrue earned time was stopped. 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 Reilly 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.

      Reilly was removed from SOTP because his account of his sexual

crime differed from that of the victim, and he failed a polygraph
                                      6

examination on the specifics of that crime. Reilly contends that because

he has a liberty interest in his ability to accrue earned time, see Holm,

767 N.W.2d at 417–18, the decision to remove him from SOTP and

therefore stop his ability to earn time requires greater protections than

those afforded by IDOC.     Specifically, Reilly contends that IDOC must

comply with the requirements set forth by the United States Supreme

Court in Wolff v. McDonnell, 418 U.S. 539, 563–71, 94 S. Ct. 2963, 2978–

82, 41 L. Ed. 2d 935, 955–59 (1974): advance written notice, a written

statement of the reasons relied upon for his removal, and a hearing

before a neutral fact finder.

      “[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

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

      We previously recognized a liberty interest in an inmate’s ability to

accrue earned time. See Holm, 767 N.W.2d at 417–18. “It is important .

. . to precisely identify the right that [Reilly] asserts as the basis for his

liberty interest.”   Sanford v. Manternach, 601 N.W.2d 360, 366 (Iowa

1999). Holm challenged IDOC’s initial classification decision that he be

required to participate in SOTP.          As we explained in Dykstra, this

decision affects a liberty interest because the classification as a sex

offender implicates the inmate’s ability to accrue earned time and
                                    7

imposes mandatory behavior modification treatment.           Dykstra, ___

N.W.2d at ___. In contrast, Reilly’s due process concerns surround IDOC

actions after he had been classified as required to participate in SOTP.

Reilly challenges the procedures used to remove him from SOTP.

Although the context of IDOC’s action towards Reilly differs from the

classification decisions regarding Holm and Dykstra, the loss is

essentially the same—ineligibility to accrue earned time. Upon Reilly’s

removal from SOTP, his ability to accrue earned time was stopped

pursuant to the requirement of Iowa Code section 903A.2(1)(a).

Therefore, removal inevitably affected the duration of Reilly’s sentence.

See Wilson v. Jones, 430 F.3d 1113, 1120–21 (10th Cir. 2005) (finding a

liberty interest where reduction in credit earning class was a statutory

requirement of a misconduct conviction and therefore “inevitably affected

the duration of [the inmate’s] sentence” (quoting Sandin, 515 U.S. at 487,

115 S. Ct. at 2293, 132 L. Ed. 2d at 431)). We hold Reilly has a liberty

interest in his ability to earn time as implicated by his removal from

SOTP.

      When an inmate’s liberty interest is affected, the court must

analyze what procedures are necessary to protect that right. While some

circumstances, such as the initial classification of prisoners at issue in

Dykstra, may require that the protections identified in Wolff be

implemented, not all IDOC decisions which implicate a liberty interest

require such protections.     The United States Supreme Court has

recognized that

      [b]ecause of the broad spectrum of concerns to which the
      term [due process] must apply, flexibility is necessary to gear
      the process to the particular need; the quantum and quality
      of the process due in a particular situation depend upon the
      need to serve the purpose of minimizing the risk of error.
                                           8

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 13, 99

S. Ct. 2100, 2106, 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.

       The Greenholtz court held that procedures employed by the

Nebraska parole board for initial parole determinations did not violate

due process even though they did not meet the requirements of Wolff.3

Id. at 14–16, 99 S. Ct. at 2107–08, 60 L. Ed. 2d at 680–81.                        The

Greenholtz court held the following procedures employed by Nebraska

satisfied due process for the initial parole classification: (1) the inmate

received advance notice of the parole hearing, thereby allowing time to

secure letters or statements; (2) the inmate was permitted to appear

before the parole board and present letters or statements on his own

behalf; and (3) the parole board communicates the reason for denial of

parole to the inmate as a guide for future behavior. Id; see also Hewitt v.

Helms, 459 U.S. 460, 473–76, 103 S. Ct. 864, 872–74, 74 L. Ed. 2d 675,

689–91 (1983) (holding the level of process due for inmates being

considered for transfer to administrative segregation requires some

notice of charges and an opportunity to be heard), abrogated on other
grounds by Sandin, 515 U.S. 480–84, 115 S. Ct. at 2298–2300, 132 L.

Ed. 2d at 427–30.

       Generally, to determine what process is due, this court analyzes:

       “ ‘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

       3The  United States Supreme Court has noted that “[a]lthough Sandin abrogated
Greenholtz’s and Hewitt’s methodology for establishing the liberty interest, these cases
remain instructive for their discussion of the appropriate level of procedural
safeguards.” Wilkinson v. Austin, 545 U.S. 209, 229, 125 S. Ct. 2384, 2397, 162 L. Ed.
2d 174, 194 (2005).
                                       9
      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.’ ”

Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk County Bd. of

Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)); accord Holm, 767

N.W.2d at 417. As one federal district court explained, within the prison
context “the court must evaluate the competing institutional and

individual interests, with due regard to the broad discretion that is

necessarily reposed in prison administrators and to the ‘nature’ of the

liberty interest at issue.” Lavine v. Wright, 423 F. Supp. 357, 362 (D.

Utah 1976)

      Although removal from SOTP implicates a liberty interest, it is a

lesser interest than the initial classification decision requiring an inmate

to participate in SOTP. The removal decision is a discretionary decision

by prison officials based on any number of considerations whereas the

initial inmate classification addressed in Dykstra amounts to a specific

factual   determination   that   the   inmate   has   engaged   in   sexually

inappropriate behavior. The United States Supreme Court has identified

attempts to remove an inmate from free society based on a “specific

parole violation” or a decision to revoke good-time credits for “specific,

serious misbehavior” as situations where “more formal, adversary-type

procedures might be useful.”     Wilkinson v. Austin, 545 U.S. 209, 228,

125 S. Ct. 2384, 2397, 162 L. Ed. 2d 174, 193 (2005). Where an inmate

has not been convicted of a sex offense or admitted to facts of a sexual

nature, the necessity for specific procedural protections in SOTP

classification is based on the search for specific facts.   Cf. Greenholtz,

442 U.S. at 14, 99 S. Ct. at 2107, 60 L. Ed. 2d at 679 (“Procedures
                                      10

designed to elicit specific facts, such as those required in . . . Wolff, are

not necessarily appropriate to a Nebraska parole decision.”)

      With regard to a decision to remove an inmate from SOTP, Iowa

Code section 903A.4 grants IDOC the authority to “establish rules as to

what constitutes ‘satisfactory participation’ for purposes of a reduction of

sentence under section 903A.2, for programs that are available or

unavailable.” The discretion to determine what constitutes “satisfactory

participation” in a treatment program necessarily includes the discretion

to remove those who do not satisfactorily participate.           Removal from

SOTP occurs after an inmate’s initial classification and is based on an

assessment      of   the   inmate’s   participation   by   the    professionals

administering the SOTP program.         This determination is more closely

aligned with the parole release decisions addressed in Greenholtz, where

the decisions are affected by “analysis of psychological factors combined

with fact evaluation guided by the practical experience of the . . .

decisionmakers.” 442 U.S. at 13, 99 S. Ct. at 2107, 60 L. Ed. 2d at 679.

Where, as here, “the inquiry draws more on the experience of prison

administrators . . . the informal, nonadversary procedures set forth in

Greenholtz and Hewitt provide the appropriate model.”            Wilkinson, 545

U.S. at 228–29, 125 S. Ct. at 2397, 162 L. Ed. 2d at 193–94; see also

Lavine, 423 F. Supp. at 363 (holding oral notice, opportunity to present

evidence, and oral advisement of the decision satisfied due process where

“prison officials have the discretion to transfer prisoners for any number

of reasons” and their “discretion is not limited to instances of serious

misconduct”).

      The exercise of IDOC’s discretion is evident in the factual

circumstances surrounding Reilly’s removal. After removing Reilly from

SOTP, IDOC employees worked with Reilly to remedy the problem and
                                    11

Reilly was readmitted to SOTP. Reilly’s removal could have affected the

duration of his prison sentence by over two years, but only affected it by

approximately two months because he was shortly readmitted to SOTP.

Cf. Montgomery v. Anderson, 262 F.3d 641, 645–46 (7th Cir. 2001)

(noting Wolff procedures are not necessarily required in circumstances

where “the stakes and correspondingly the required procedures are

diminished.”)

      The full panoply of protections that would accompany a formal

hearing are unnecessary for removal from SOTP because of the nature of

the liberty interest at stake, the discretion granted to IDOC employees,

and the professional judgment behind any removal decision. Regardless,

the minimum protections of due process, noted in Greenholtz, must be

met. We hold IDOC must provide (1) advance notice allowing the inmate

time to secure documents or prepare a statement, (2) an opportunity to

present documentary evidence, letters, or make statements before the

decision-maker, and (3) an explanation for the reasons behind any

removal decision. Additionally, although not contested in Greenholtz, it

is a fundamental element of due process that the decisionmakers be

“sufficiently impartial.” See Wolff, 418 U.S. at 570–71, 94 S. Ct. at 2982,

41 L. Ed. 2d at 959.

      The process employed by IDOC to remove Reilly from SOTP failed

to comply with three of the four procedures we hold due process

requires. First, Reilly was not given advance notice that he would have

an   opportunity   to   address    the   removal   decision   before   the

decisionmakers.    Second, the record demonstrates that during the

meeting at which Reilly was presented with a refusal form explaining the

consequences of removal from SOTP, which he refused to sign, Reilly was

not allowed to present documentary evidence or make a statement to the
                                    12

decisionmakers on his own behalf. Third, although IDOC notes indicate

Reilly was removed from SOTP because he failed a polygraph, had no

new admissions, and was uncooperative, Reilly’s handwritten appeal

suggests IDOC did not fully explain these reasons for his removal and

would only tell him he failed a polygraph examination.         Reilly was,

however, eventually informed of the reasons for his removal from SOTP

and IDOC worked to help Reilly adjust those problems that led to his

removal, allowing Reilly to successfully rejoin SOTP within four months.

IDOC’s work with Reilly after his removal does not cure the initial failure

to provide him with the reasons for his removal.

      When Reilly was informed of the decision to remove him from

SOTP, he met with three prison officials, including the treatment

director.   Reilly complains that these officials were not “sufficiently

impartial.” We have explained within the prison disciplinary context that

“[t]he independence required of the hearing officer is that the officer not

be 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). There is no indication in the record that

any of the officials who met with Reilly also administered the polygraph

examination or were involved in any relevant incidents with Reilly.

Based on the record before the court, the professionals administering

SOTP are sufficiently impartial. As in Wolff, there is no evidence in the

record that these three individuals “present[] such a hazard of arbitrary

decisionmaking that it should be held violative of due process of law.”

418 U.S. at 571, 94 S. Ct. at 2982, 41 L. Ed. 2d at 959–60. Further,

Reilly is provided the opportunity to appeal the decision to the deputy

warden, who was not at the original hearing.
                                       13

      In summary, IDOC complied with only one of the four basic

requirements—an impartial decisionmaker—and therefore, Reilly’s due

process rights were violated.      We remand to the district court for

determination of what, if any, remedy is required.

      D.   Polygraph Examination.           IDOC required Reilly to take a

specific issue polygraph examination as part of the SOTP because Reilly’s

account of his crime differed from his victim’s account. After Reilly failed

the polygraph examination, IDOC removed him from the SOTP and

stopped his ability to earn additional time off his sentence. IDOC based

this decision on the polygraph, a lack of “new admissions” and on Reilly’s

“uncooperative” behavior. Reilly argues it was improper for IDOC to rely

on a polygraph examination to make the removal decision which led to

Reilly’s ineligibility to earn time.    Reilly cites to this court’s general

distrust of polygraph examinations, see State v. Conner, 241 N.W.2d 447,

458–59 (Iowa 1976), their inadmissibility in court unless stipulated to by

both parties, id., and an Iowa court of appeals decision holding that

unstipulated polygraph examinations could not be relied upon in IDOC

disciplinary proceedings, see Bradley v. State, 473 N.W.2d 224, 226

(Iowa Ct. App. 1991).

      As noted above, section 903A.4 authorizes IDOC to develop policy

and procedural rules to implement section 903A.2 and determine what

constitutes “satisfactory participation” in a treatment program. It is not

improper for IDOC to consider polygraph examinations administered as

part of treatment to make decisions regarding whether an inmate’s

participation was satisfactory and whether the inmate should be

removed.     Although unstipulated polygraph examinations are not

typically admissible in court proceedings and the court of appeals has

held they are inadmissible in IDOC disciplinary proceedings, IDOC used
                                      14

the polygraph examination here for a different purpose. The examination

was not used for general discipline or adjudicative fact-finding but was

instead used as part of a treatment program. We have previously noted

the use of polygraphs in sex offender treatment programs. Swanson v.

Civil Commitment Unit for Sex Offenders (CCUSO), 737 N.W.2d 300, 303

(Iowa    2007).      Other   jurisdictions   have   held   use   of   polygraph

examinations permissible to serve therapeutic values. See United States

v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006) (“The polygraph can help

penetrate deception and encourage an offender to confront his own

motivations    and    behaviors.     These    outcomes     further    sentencing

objectives such as rehabilitation and deterrence, with reasonably small

incremental deprivations of liberty.”); United States v. Dotson, 324 F.3d

256, 261 (4th Cir. 2003) (“[E]videntiary cases do not govern our

evaluation of the use of polygraphs in connection with the treatment of

an offender. The use of a polygraph test here is not aimed at gathering

evidence to inculpate or exculpate [the offender].         Rather, the test is

contemplated as a potential treatment tool . . . .”).

        We held in Dykstra, that use of a polygraph as a substitute for

procedural protections or as the sole evidence for deprivation of a liberty

interest may implicate constitutional concerns. Dykstra, ___ N.W.2d at

___. However, decisions or hearings regarding removal from SOTP may

consider polygraph examinations as a factor influencing the removal

decision because polygraph examinations serve a rehabilitative purpose

within treatment.

        IV.   Conclusion.

        IDOC’s application of Iowa Code section 903A.2 to Reilly did not

violate the ex post facto clause. The procedures employed by IDOC to

remove Reilly from SOTP did violate his procedural due process rights,
                                  15

although IDOC is entitled to consider polygraph examinations in making

SOTP removal decisions.       We remand to the district court for

consideration of the appropriate remedy.

      WRIT SUSTAINED.
