               IN THE SUPREME COURT OF IOWA
                              No. 16–0582

                        Filed February 24, 2017

                         Amended May 24, 2017

GARY PETTIT,

      Appellee,

vs.

IOWA DEPARTMENT OF CORRECTIONS,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Mary Pat

Gunderson (motion to dismiss) and Scott Rosenberg (judicial review

petition), Judges.



      The Iowa Department of Corrections appeals a decision of the

district court requiring the department to provide an inmate counsel in a

sex offender treatment program classification hearing. REVERSED AND

CASE REMANDED WITH DIRECTIONS.


      Thomas J. Miller, Attorney General, and John McCormally,

Assistant Attorney General, for appellant.



      Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellee.
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WIGGINS, Justice.

      An inmate filed a judicial review petition under Iowa Code chapter

17A (2015) 1 seeking court review of a sex offender treatment program

(SOTP) classification hearing.            The Iowa Department of Corrections

(IDOC) moved to dismiss the petition claiming judicial review was

unavailable under chapter 17A. The district court overruled the motion

to dismiss, and on the merits, the court determined the inmate was

entitled to counsel. IDOC appeals.

      On appeal, we find the district court did not have the authority to

review the classification hearing under chapter 17A.                 Accordingly, we

vacate the judgment of the district court and remand the case back to

the district court to enter an order dismissing the inmate’s petition for

judicial review.

      I. Background Facts and Proceedings.

      On June 8, 2004, Gary Pettit pled guilty to third-degree sexual

abuse in violation of Iowa Code section 709.4(1) (2003) and third-degree

kidnapping.       The Madison County district court sentenced him to two

consecutive fifteen-year terms of imprisonment with a mandatory three-

year habitual offender enhancement.               The court placed Pettit in the

custody of the IDOC, which incarcerated him at the Anamosa State

Penitentiary.       In 2005, Pettit completed Sexual Offender Counseling

(SOC).       Since his incarceration, Pettit has received three discipline

reports primarily regarding unauthorized possession of items.

      On January 5, 2015, the IDOC provided Pettit with a “Sex Offender

Treatment Program Classification Hearing Notice” informing him of the

decision that “he would be required to complete sex offender treatment.”

      1All   references are to the 2015 Code of Iowa unless otherwise noted.
                                        3

The notice informed him that “[t]his classification decision may affect your

future accrual of earned time and tentative discharge date pursuant to

Iowa Code § 903A.2(1)(a).” The notice also stated Pettit is a “convicted

sex offender” currently serving time for third-degree sex abuse among

other charges and “[b]ecause he has never completed any type of sex

offender treatment [program], the [IDOC] will require he do so. Should

offender    Pettit   refuse   to    participate   in   mandatory   treatment,

appropriately his earned time will be suspended.”          Finally, the notice

provided “that an in-person or telephonic hearing on your appeal of the

sex offender treatment program requirements will be held on Wednesday,

January 21,” before an administrative law judge (ALJ), and “[a]ll

documents or other exhibits that you want considered at the hearing

[must be received] . . . no later than two business days [before] the

hearing.”

      Prior to the hearing, Pettit sought to have subpoenas issued for

witnesses and documents.           The ALJ denied his requests.      The ALJ

explained his requests for subpoenas were properly denied because

“[t]his matter was not being conducted under Iowa Code Chapter 17A,”

and drawing upon the precedent of prison disciplinary hearings, such

hearings do not use subpoenas.         Pettit also requested his attorney be

present with him at the classification hearing, and the ALJ denied that

request. Citing the IDOC’s policy for the denial, the ALJ provided,

      This due process (ALJ) hearing of a classification committee
      decision is an administrative remedy and the offender shall
      not have the right to use outside counsel during the hearing
      or appeal process.

      See Policy IS-CL-03, at IV.A.3.d.II (page 9). Thus, while
      [Pettit] may consult with his attorney, he does not have the
      right to have the attorney participate in the hearing process
      itself.
                                    4

      At the start of the classification hearing, Pettit requested the ALJ

record the hearing.     The ALJ denied his request, reasoning that

recordings are not required for prison disciplinary hearings and thus, are

not required for classification hearings.    Pettit also indicated he was

making his objections to the hearing procedures under the Iowa due

process clause, and the ALJ found the procedures comported with

relevant Iowa law and the IDOC’s policies.

      At the hearing, Pettit objected to the classification, contending the

SOC program he completed at the Anamosa State Penitentiary satisfied

the requirement that he complete sex offender treatment.       During the

hearing, Pettit had the opportunity to present evidence and make

statements.    Pettit submitted fifteen exhibits and five notarized

statements from other offenders. He also asked the ALJ to take judicial

notice of his prison record. The ALJ accepted all of Pettit’s documents

into evidence and took administrative notice of all relevant documents in

the prison records.

      Following the hearing, the ALJ rendered a decision.             After

considering the evidence and Pettit’s argument, the ALJ affirmed the

classification decision, concluding Pettit is required to complete the SOTP

at the Mount Pleasant Correctional Facility.    Pettit appealed the ALJ’s

decision to the warden by completing the SOTP appeal form. See Iowa

Code § 903A.3(2) (“The orders of the administrative law judge are subject

to appeal to the superintendent or warden of the institution, . . . who

may either affirm, modify, remand for correction of procedural errors, or

reverse an order.”).   The warden affirmed the decision of the ALJ,

agreeing with the classification committee’s and the ALJ’s decisions to

require Pettit to complete SOTP.
                                             5

       Pettit filed a petition for judicial review naming the IDOC as the

respondent under Iowa Code chapter 17A.                         Pettit claimed the IDOC

violated his substantive and procedural due process rights under the

Iowa Constitution and chapter 17A because the IDOC refused to allow

him access to counsel during the classification hearing, refused to

provide him with subpoenas, refused to provide him with requested

identifiable agency records, and refused to provide him with prehearing

discovery.     See Iowa Code §§ 17A.13(1)–(2), .19(10)(a), (d).              Pettit also

asserted under chapter 17A that his substantial rights were prejudiced

by the IDOC’s requirement that he “participate in the SOTP a second

time after having previously completed sex offender treatment.” See id.

§ 17A.19(10)(b), (c), (f), (g), (h), (j), (k), (l), (m), (n).

       The IDOC filed a preanswer motion to dismiss Pettit’s petition,

arguing chapter 17A was not applicable to the classification decision and

that filing a postconviction-relief action under Iowa Code chapter 822

was the proper way to review the actions taken by the IDOC. The district

court denied the motion.

       The case proceeded on the merits. The district court, relying on

State v. Young, 863 N.W.2d 249 (Iowa 2015), found,

       [s]ince an inmate’s ability to accrue earned time has been
       recognized . . . to be a liberty interest, the facts and
       circumstances of this case required [Pettit] be allowed to
       retain counsel or, if he could not afford counsel, to have
       counsel appointed at state expense.

The IDOC appealed.

       II. Issue.

       The IDOC raises numerous issues on appeal. The issue of whether

the district court erred in overruling IDOC’s motion to dismiss is
                                     6

dispositive of this appeal. Therefore, we will not address any other issues

presented.

      III. Scope of Review.

      We review a district court’s ruling on a motion to dismiss for

correction of errors at law. Alliant Energy-Interstate Power & Light Co. v.

Duckett, 732 N.W.2d 869, 874 (Iowa 2007). “Ultimately, ‘our decision to

overrule or sustain a motion to dismiss must rest on legal grounds.’ ”

Trobaugh v. Sondag, 668 N.W.2d 577, 580 (Iowa 2003) (quoting Haupt v.

Miller, 514 N.W.2d 905, 907 (Iowa 1994)).

      IV. Analysis.

      Before reaching the merits of this claim, it is important to note the

difference between subject matter jurisdiction and the court’s lack of

authority to hear a particular case. In the past, we have explained these

concepts as follows:

      [W]e distinguished subject matter jurisdiction from the
      court’s “lack of authority to hear a particular case,” also
      referred to as “lack of jurisdiction of the case.” “Subject
      matter jurisdiction” refers to the power of a court to deal
      with a class of cases to which a particular case belongs. A
      constitution or a legislative enactment confers subject matter
      jurisdiction on the courts. Although a court may have
      subject matter jurisdiction, it may lack the authority to hear
      a particular case for one reason or another.

In re Estate of Falck, 672 N.W.2d 785, 789–90 (Iowa 2003) (citation

omitted) (quoting Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa

1989)).

      Ordinarily, the district court has subject matter jurisdiction over

judicial review petitions.   Here, the IDOC is claiming a judicial review

petition is not the proper vehicle to challenge the IDOC’s actions, but

that a postconviction-relief action is the proper method of review. Thus,
                                          7

the IDOC is claiming the district court had no authority to review this

matter under chapter 17A. We agree with the IDOC.

       The legislature has passed certain statutes concerning a prisoner’s

right to accrue earned time. Section 903A.2 of the Code provides,

       An inmate of an institution under the control of the
       department of corrections . . . is 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. The programs include but
       are not limited to the following:

               ....

               (4) A treatment program established by the director.

Iowa Code § 903A.2(1)(a)(4). In 2005, the legislature added the following

language to specifically address sex offender treatment: “However, 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.” Id. § 903A.2(1)(a). 2 Thus, “[a]n inmate who fails to participate

in sex offender treatment required by the IDOC risks losing his or her

ability to obtain an earlier release from prison by accumulating earned
time.” State v. Iowa Dist. Ct., 888 N.W.2d 655, 662 (Iowa 2016).




       2We   have previously stated,
       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.
Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 494 (Iowa 2010).      Thus, although Pettit’s
offense occurred in 2004, section 903.2(1)(a) applies to him.
                                       8

      The Code outlines the authority of the IDOC to implement such

treatment programs:

             The director of the Iowa department of corrections
      shall develop policy and procedural rules to implement
      sections 903A.1 through 903A.3. The rules may specify
      disciplinary offenses which may result in the loss of earned
      time, and the amount of earned time which may be lost as a
      result of each disciplinary offense.      The director shall
      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.

Iowa Code § 903A.4. Finally, the Code provides, “The inmate disciplinary

procedure, including but not limited to the method of awarding or

forfeiting time pursuant to this chapter, is not a contested case subject

to chapter 17A.” Id. § 903A.3(4).

      The result of an inmate not participating in SOTP is a loss of the

accrual of earned time. This result will happen no matter the inmate’s

reason for not participating in SOTP.       As section 903A.3(4) states, the

disciplinary procedure is not limited to only the “method of awarding or

forfeiting time.” Id. It follows that the initial step of classification is part

of the entire procedure.       We find there is little to distinguish the

challenge of the initial SOTP classification decision from a challenge to

the SOTP classification decision after the accrual of the inmate’s earned

time is affected. Thus, we conclude the SOTP classification decision is

part of the disciplinary procedure.           Therefore, section 903A.3(4)

precludes review under chapter 17A.

      We find the proper method to review a SOTP classification is by a

postconviction-relief action. This conclusion is consistent with our prior

caselaw.    In Davis v. State, 345 N.W.2d 97, 98 (Iowa 1984), “[t]he

disciplinary committee determined that [a prisoner] should be penalized
                                          9

by thirty-six months in administrative segregation plus loss of television,

radio, and tape player privileges for the same period of time.”                     In

discussing the issue, we cited Iowa Code sections 663A.2(5) and (6)

(1983). Id. at 98–99. Section 663A.2(5) of the 1983 Code has the exact

same language of section 822.2(1)(e) of the 2015 Code. Compare Iowa

Code § 663A.2(5) (1983), with Iowa Code § 822.2(1)(e) (2015). Section

663A.2(6) of the 1983 Code contains the same language as section

822.2(1)(f) of the 2015 Code with two minor differences. Compare Iowa

Code § 663A.2(6) (1983), with Iowa Code § 822.2(1)(f) (2015).                 Section

822.2(1)(f) of the 2015 Code cites the accrual of earned time provisions

contained in chapter 903A and requires a party to exhaust the appeal

procedure of section 903A.7. Id. § 822.2(1)(f).

       Without stating which provision specifically applies, we held a

postconviction-relief action was the proper means to contest the

prisoner’s claims. Davis, 345 N.W.2d at 99. In reaching this conclusion

we said,

             In many of the prison disciplinary proceedings in
       which judicial review will be sought, forfeiture of good and
       honor time will be involved but will be coupled with other
       means of discipline which can be characterized as a
       substantial deprivation of liberty or property but which are
       not expressly mentioned as a subject for review under
       chapter 663A. We therefore approve litigating all such
       claims involving substantial deprivation of liberty or property
       interests pursuant to the procedures of chapter 663A in the
       county in which the applicant is being confined.

Id. This reasoning is just as applicable today. Pettit’s objection to SOTP

classification is part of the disciplinary procedure because it would lead

to a loss of the accrual of earned time. Section 822.2(1)(f) 3 addresses the

       3Section  822.2(1)(f) allows a postconviction-relief action when “[t]he person’s
reduction of sentence pursuant to sections 903A.1 through 903A.7 has been unlawfully
                                         10

loss of earned time and is the statutory basis for a postconviction-relief

action under this set of facts. 4

       Pettit relies on the footnote in Maghee v. State, 773 N.W.2d 228,

238 n.3 (Iowa 2009), to support his argument on appeal the IDOC’s

classification decision constituted other agency action. Pettit’s reliance is

misplaced.

       In Maghee, an inmate challenged the revocation of his work release

status in a postconviction-relief action.          Id. at 230.     There, we held

chapter 822 was the proper vehicle to challenge an IDOC decision,

explaining, “[e]ven though the department’s decision may also fall within

chapter 17A, we think the more specific statute—chapter 822—should

control the procedure for judicial review.” Id. at 240. In the footnote, we

also observed,

       it is difficult to understand the basis for holding that a
       disciplinary decision made by a committee of the department
       of corrections is not agency action falling within chapter 17A.
       The fact that disciplinary proceedings are not “contested
       cases,” see Langley [v. Scurr, 305 N.W.2d 418, 419 (Iowa
       1981)], does not preclude their review under chapter 17A.19
       as “other agency action.”

Id. at 238 n.3.

       Iowa Code chapter 17A recognizes three distinct categories of

agency action: rulemaking, adjudication or contested case, and other

agency action.      Greenwood Manor v. Iowa Dep’t of Pub. Health, 641

N.W.2d 823, 833 (Iowa 2002). In his petition for judicial review, Pettit


______________________
forfeited and the person has exhausted the appeal procedure of section 903A.3,
subsection 2.”
       4Section    822.2(1)(e) may also apply because Pettit had undergone a specific
program at Newton that he objected to and was also claiming he was “unlawfully held in
. . . other restraint.” Iowa Code § 822.2(1)(e).
                                    11

originally claimed the IDOC’s action was a contested case.           At the

hearing for motion to dismiss in the district court, Pettit argued the

SOTP classification decision was a contested case or alternatively, other

agency action.   In light of our conclusion that the SOTP classification

decision is part of the “inmate disciplinary procedure . . . , [i]t is not a

contested case subject to chapter 17A.” Iowa Code § 903A.3(4). Thus,

we only need to consider whether the classification decision constitutes

other agency action.

      Other agency action is a residual category that does not amount to

rulemaking or a contested case. Greenwood Manor, 641 N.W.2d at 834.

“[I]f the statute or constitution does not require a hearing, or if the

required hearing does not rise to the level of an evidentiary hearing, the

agency action is considered ‘other agency action.’ ” Id. An evidentiary

hearing is considered “an oral proceeding whose purpose is to determine

disputed facts of particular applicability known as adjudicative facts—the

who, what, when, where, and why of particular individuals in specified

circumstances.” Polk County v. Iowa State Appeal Bd., 330 N.W.2d 267,

277 (Iowa 1983) (quoting Arthur Earl Bonfield, The Definition of Formal

Agency Adjudication Under the Iowa Administrative Procedure Act, 63

Iowa L. Rev. 285, 294 (1977)). Other agency action entitles parties to, at

most, an informal hearing. Greenwood Manor, 641 N.W.2d at 834.

      In Langley, we opined there was no constitutional requirement for

an “evidentiary hearing,” and an “extensive or formal hearing” was not

required in disciplinary proceedings. 305 N.W.2d at 419–20. In Dykstra

v. Iowa District Court, while not overruling Langley, we contemplated the

due process required for disciplinary proceedings under the Iowa and

United States Constitutions more closely.     783 N.W.2d 473, 483 (Iowa

2010). We adopted and summarized the procedural protections set forth
                                       12

in Wolff v. McDonnell, 418 U.S. 539, 563–71, 94 S. Ct. 2963, 2978–82, 41

L. Ed. 2d 935, 955–59 (1974), as follows:

      (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.

Dykstra, 783 N.W.2d at 482.            Subsequently, the Supreme Court

explained that these procedures are necessary in proceedings “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.

      The due process requirements under the Iowa Constitution require

a hearing, at which the inmate must be allowed to call witnesses and

present documentary evidence to elicit specific adjudicative facts for

SOTP classification. This rises to the definition of an evidentiary hearing.

Thus, the SOTP classification cannot constitute other agency action.

      V. Summary and Disposition.

      We find that SOTP classification is part of the disciplinary

procedure because it would lead to a loss of the accrual of earned time if

the inmate does not comply. In light of our conclusion that the SOTP

classification is part of the disciplinary procedure, it is not a contested

case subject to chapter 17A.       We further find a SOTP classification

hearing is not other agency action. Accordingly, an inmate must file a

postconviction-relief action under section 822.2(1)(f) to obtain review by

the courts of a SOTP classification.
                                      13

      Therefore, the court had no authority to hear the judicial review

petition filed by Pettit and the district court erred in overruling IDOC’s

motion to dismiss. Consequently, we vacate the judgment of the district

court and remand the case back to the district court to enter an order

dismissing Pettit’s petition for judicial review.

      REVERSED AND CASE REMANDED WITH DIRECTIONS.
