                   IN THE SUPREME COURT OF IOWA
                                No. 17–1023

                            Filed October 13, 2017


STATE OF IOWA,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR JONES COUNTY,

      Defendant.



      Certiorari to the Iowa District Court for Jones County, Lars G.

Anderson, Judge.



      The State filed a petition for writ of certiorari challenging a district

court order granting postconviction relief by holding a department of

corrections retroactive policy change on earned-time sentence reduction

was precluded by a previous Iowa Supreme Court decision and violated

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

WRIT ANNULLED.



      Thomas J. Miller, Attorney General, Jeffrey Thompson, Solicitor

General,     and    John   McCormally,   Assistant   Attorney   General,   for

appellant.



      Philip B. Mears of Mears Law Office, Iowa City, for appellee.
                                     2


WATERMAN, Justice.

      In this case, we must decide whether a retroactive change in the

Iowa Department of Corrections’ (IDOC) Sex Offender Treatment Program

(SOTP) policy violates the governing statute or the Ex Post Facto Clauses

of the United States and Iowa Constitutions. The statute provides that

“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 [SOTP].”        Iowa Code § 903A.2(1)(a)(2)

(2017) (emphasis added).    The parties to this appeal disagree whether

“required” temporally means upon the conviction of a sex offense that

automatically obligates the inmate to ultimately participate in SOTP, or

rather when the inmate is first directed to begin SOTP in prison (when a

“bed is available”), which may be after years of incarceration.

      For over a decade, the IDOC policy halted only the ongoing accrual

of earned time for inmates upon a refusal or removal from SOTP, without

forfeiting previously accrued earned time. We upheld that interpretation

at the IDOC’s request in Holm v. State, 767 N.W.2d 409, 414, 418 (Iowa

2009). In January 2016, however, the IDOC changed its long-standing

policy to additionally forfeit all previously accrued earned time upon a

refusal or removal from SOTP and applied that change retroactively,

delaying the tentative release dates for approximately 150 inmates.

      An inmate whose release was thereby delayed by more than three

years challenged the new policy. His administrative appeals were denied,

and he filed this action for postconviction relief.         The district court

determined   the   new    IDOC    policy   interpretation    and   retroactive

application to this inmate was contrary to Holm and violated both the

Iowa and Federal Ex Post Facto Clauses. We granted the State’s motion
                                             3


for a stay and writ of certiorari. On our review, we apply stare decisis

and the interpretation fixed in Holm to hold that the IDOC may not forfeit

earned time the inmate accrued before his refusal or removal from SOTP.

      I. Background Facts and Proceedings.

      In April 2011, Marshall Miller was convicted of sexual abuse in the

third degree and received a suspended sentence. 1                  He committed the

offense when he was age twenty-one or twenty-two and had sex with

someone age fourteen or fifteen.              Miller was also ordered to serve a

lifetime special sentence after serving his suspended sentence, as

provided by Iowa Code chapter 903B.                 His probation was revoked in

March 2012, and Miller was ordered to serve his prison sentence. Miller

continually accrued earned time during the first three years of his

sentence through good behavior.

      In March 2015, Miller was transferred to the Mount Pleasant

Correctional Facility (MPCF) to begin SOTP. 2 The availability of a bed for

treatment, as well as the projected release date of the inmate, largely

determined when an inmate would begin SOTP, which was available at

the MPCF at that time. 3 Within a day of arriving at the MPCF, Miller was

assaulted by another inmate and placed in protective custody.

      A month later—while Miller was still in protective custody—he

committed a serious disciplinary violation by forging the name of a

correctional officer on a store order.              Miller also violated the IDOC

disciplinary rules by attempting to run an unauthorized business.


      1Miller   was also convicted of various theft charges.
      2Miller had been incarcerated at the MPCF in August 2013 but was transferred
to the Newton Correctional Facility in October 2014 due to disciplinary problems.
      3SOTP     was transferred to the Newton Correctional Facility in 2016.
                                     4


Because of these violations, Miller was penalized with thirty days of

disciplinary detention and a loss of thirty days of earned time.      Miller

appealed the decision, which was upheld by the deputy superintendent.

      After these disciplinary violations, the IDOC provided Miller with a

“Sex Offender Treatment Program Classification Hearing Notice.”         The

notice explained that because of Miller’s disciplinary detention, he was

unable to participate in SOTP or to be housed at the MPCF. The notice

informed Miller that his accrual of earned time would be suspended

because he was unable to participate in SOTP (as required for his sex-

offense conviction). Miller was then transferred from the MPCF to the

Clarinda Correctional Facility due to Miller’s disciplinary detention time

and his protective custody status.

      A hearing to review the IDOC’s decision was held before an

administrative law judge (ALJ) in June. On October 6, the ALJ issued a

decision upholding Miller’s removal from SOTP. Miller appealed to the

deputy warden, who denied the appeal on October 21. The suspension of

Miller’s accrual of earned time changed his tentative discharge date to

March 10, 2016.

      In January 2016, the IDOC revised its interpretation of Iowa Code

section 903A.2 by issuing a new policy that increased the penalty for

refusing or removal from SOTP through the retroactive forfeiture of

previously accrued earned time. The new policy provided,

      An offender required to complete SOTP who refuses or is
      removed from the SOTP Program will have a hearing with an
      ALJ. Upon an ALJ decision affirming the classification
      committee’s SOTP requirement, the offender’s records will
      reflect the offender has not received any earned time
      sentence reduction. An offender that has refused or been
      removed from SOTP may begin accruing earned time after
      successful completion of SOTP, effective the date of
      completion. An offender who successfully completes SOTP
      upon initial placement in the program will receive the earned
                                      5

      time sentence reduction effective their date of entry into
      DOC.

Iowa Dep’t of Corr., Policy & Procedures, SOTP Hearing and Appeal

Procedures, OP-SOP-09 (2016). The IDOC informed Miller that, due to

the change in interpretation in the new policy and Miller’s removal from

SOTP, his tentative discharge date was changed from March 10, 2016, to

December 22, 2019.         Miller filed a classification appeal, which was

denied.   On February 5, Miller was notified that he could pursue a

supplemental appeal to the IDOC central office.      He did so, and that

appeal was denied on March 22.

      On June 20, Miller initiated this action for postconviction relief,

claiming that the IDOC improperly “removed” him from SOTP and

forfeited his earned time. Miller asserted that his hearing before the ALJ

was procedurally deficient.      Miller also challenged the IDOC’s 2016

reinterpretation of section 903A.2 and the retroactive application of the

reinterpretation to him.

      The case was submitted on a stipulated record. The district court

found that it lacked jurisdiction to review Miller’s claims challenging his

removal from SOTP because Miller had failed to timely appeal that
adjudication.   The court did, however, reach the merits of Miller’s

challenge to the IDOC’s reinterpretation of section 903A.2. The district

court concluded the IDOC’s new interpretation conflicted with Holm, 767

N.W.2d at 414, 418 and that the retroactive application of the 2016

policy to Miller violated the Ex Post Facto Clauses of the United States

and Iowa Constitutions. For these reasons, the district court granted in

part Miller’s application for postconviction relief, ordering the IDOC to

credit back to Miller all earned time that Miller had accrued for good

behavior before his removal from SOTP in 2015.
                                     6


      The State filed a petition for a writ of certiorari and simultaneously

requested an immediate stay of the district court’s ruling. We granted

the stay and the writ of certiorari and retained the case.

      II. Standard of Review.

      We review certiorari actions for correction of errors at law. State v.

Iowa Dist. Ct. for Jones Cty., 888 N.W.2d 655, 662 (Iowa 2016).           We

review postconviction-relief proceedings for correction of errors at law.

Id.   We review questions of statutory construction, including the

interpretation of section 903A.2, for correction of errors at law. Dykstra

v. Iowa Dist. Ct., 783 N.W.2d 473, 477 (Iowa 2010). We review claims of

violations of constitutional rights de novo “in light of the totality of the

circumstances and the record upon which the postconviction court’s

ruling was made.” Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 488 (Iowa

2010) (quoting Risdal v. State, 573 N.W.2d 261, 263 (Iowa 1998)).

      III. Analysis.

      We must decide whether the IDOC could lawfully change its

interpretation of section 903A.2 in 2016 and retroactively apply its new

forfeiture policy to Miller after he was convicted of a sex offense in 2011

and deemed removed from SOTP in 2015. We first review the operative

statutory   language   and    the   IDOC’s    shifting   positions   on   its

interpretation. We next address whether to adhere to our interpretation

of section 903A.2 sought by the IDOC in Holm. Because we conclude

Holm controls, we affirm the district court without reaching the

constitutional questions.

      A. The IDOC’s Interpretation of Section 903A.2.            Iowa Code

section 903A.2, titled “Earned time,” “allows inmates to reduce their
                                       7


sentences for good conduct.” State v. Allensworth, 823 N.W.2d 411, 414

(Iowa 2012). Under that statute,

      [a]n 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.

Iowa Code § 903A.2(1)(a)(1). The purpose of these sentence reductions

(called “earned-time credits”) “is to encourage prisoners to follow prison

rules and participate in rehabilitative programs.” Kolzow v. State, 813

N.W.2d 731, 738 (Iowa 2012).

      A 2005 amendment to section 903A.2(1)(a) added this sentence:

“[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.” 2005 Iowa Acts ch. 158, § 32 (codified at

Iowa Code § 903A.2(1)(a) (2007)). The IDOC previously interpreted this

language to mean that “an inmate will no longer accrue any earned time

after refusing to attend SOTP, but will not lose any previously accrued

earned time.”     Dykstra, 783 N.W.2d at 478.               We upheld this

interpretation in our 2009 Holm decision.           See 767 N.W.2d at 415

(“Under the DOC policy in effect after the 2005 amendment to Iowa Code

section 903A.2(1)(a), Holm could no longer accrue any earned time after

refusing to attend SOTP, but he did not lose any previously accrued time.”

(Emphasis   added.)).    Yet,   now,       the   IDOC   argues   it   had   been

misinterpreting the statute until its corrective policy issued in 2016. We

must decide whether to overrule Holm.
                                     8


      “[O]ur starting point in statutory interpretation is to determine if

the language has a plain and clear meaning within the context of the

circumstances presented by the dispute.”       McGill v. Fish, 790 N.W.2d

113, 118 (Iowa 2010).     “When the text of a statute is plain and its

meaning clear, the court should not search for a meaning beyond the

express terms of the statute . . . .” State v. Schultz, 604 N.W.2d 60, 62

(Iowa 1999) (quoting Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc.,

594 N.W.2d 22, 25 (Iowa 1999)).            We apply rules of statutory

construction if the language is ambiguous. McGill, 790 N.W.2d at 118.

Ambiguity in statutory language “exists only if reasonable minds could

differ on the meaning.” Id.

      The parties disagree on when a party is “required” to participate in

SOTP.   See Iowa Code § 903A.2(1)(a)(2) (2017).     The IDOC, relying on

several of our decisions, now contends that under a “plain text” reading

of the statute, an inmate is automatically required to participate in SOTP

upon conviction of a sex offense. See Iowa Dist. Ct. for Jones Cty., 888

N.W.2d at 664 (explaining that due process requirements for SOTP

classification are satisfied when the inmate has been tried and convicted

of a sex offense); State v. Iowa Dist. Ct. for Webster Cty., 801 N.W.2d 513,

527 (Iowa 2011) (“[F]rom the moment [the inmate] committed his crime,

it was clear that if he was convicted and chose not to participate in the

prescribed treatment program, he would not be eligible for earned-time

credits.”); Dykstra, 783 N.W.2d at 484 (acknowledging that “[c]ourts have

held that inmates currently serving sentences for sex offenses are not

entitled to any additional procedures prior to being classified as required

to participate in SOTP”); Holm, 767 N.W.2d at 418 (concluding that

mandatory SOTP for an inmate convicted of third-degree sexual abuse
                                    9


did not violate due process).     Accordingly, the IDOC now contends,

contrary to its position in Holm, that sex offenders such as Miller who

refuse to participate or are removed from SOTP lose all earned time

accrued previously.

      Conversely, Miller argues that an inmate is not “required” to take

SOTP until a bed is available in the program and he is told to begin

participating.   The IDOC previously argued for this interpretation in

Holm. Under this interpretation, an inmate keeps earned time accrued

before he refuses to complete SOTP or is removed from the program.

Interestingly, Miller’s counsel represented Holm and, to buttress his

constitutional ex post facto challenge, argued then the interpretation the

IDOC urges now. The IDOC and Miller’s counsel effectively have reversed

positions on the meaning of section 903A.2.           Specifically, Holm’s

appellate brief argued that “[w]hat is significant is that the 2005

legislation talked about there being no eligibility [for earned time] until

treatment was completed” and asserted,

      This statute should have been understood to mean that sex
      offenders don’t get the accrual of earned time until they
      complete treatment.      The statute doesn’t say that sex
      offenders get to accrue earned time for maybe two, three, five
      or seven years until a bed is available for them. The statute
      says that individuals “required to do treatment” don’t accrue
      it at all until they complete the program. That should be a
      common sense understanding of the statute.

Plaintiff’s Final Brief at 19, 21, Holm, 767 N.W.2d 409 (No. 07–1095).

      We disagreed with Holm’s counsel and accepted the interpretation

urged then by the IDOC: that only the ongoing accrual of earned time

would stop upon a refusal or removal from SOTP without forfeiture of

previously accrued earned time. 767 N.W.2d at 414, 418. As the parties’

shifting positions help to demonstrate, the statutory language reasonably
                                         10


can be read two ways. Indeed, we view the IDOC’s change in position

interpreting the statute it administers as a strong indication of

ambiguity. 4 We conclude section 903A.2 is ambiguous and adhere to the

interpretation previously sought by the IDOC that we adopted in Holm.

       Holm was serving a sentence for third-degree sexual abuse for an

offense that occurred in 2002.         Holm, 767 N.W.2d at 412.           The IDOC

implemented the 2005 statutory amendment “by adopting a rule

stopping the accrual of earned time for a sex offender who refused

treatment, was removed from treatment, or failed to meet program

completion criteria.” Id. at 413. The IDOC’s prior policy provided that a

refusal to participate resulted in the loss of up to ninety days of earned

time; it “did not completely stop the accrual of earned time.” Id.

       In one of Holm’s classification meetings, the IDOC told Holm the

new provision would be applied to him, “there was a treatment bed for

SOTP available, and he must decide whether to undergo treatment.” Id.

Holm refused treatment and signed the prison’s treatment refusal form.

Id. “Holm’s sentence reduction or earned time stopped accruing when he

signed the treatment refusal form[, but] Holm did not lose any credits he

had earned prior to that date.” Id. at 414. This changed Holm’s tentative

discharge date from April 9, 2008, to April 9, 2010. Id.

       Holm applied for postconviction relief after he exhausted his

administrative remedies, claiming that the application of the 2005

amendment to him violated the Ex Post Facto Clauses of the United

States and Iowa Constitutions.            Id.   We rejected Holm’s argument,

       4Cf. Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 577–78 (Iowa 2004)
(“[T]he mere disagreement by the parties over the meaning of a term, or perhaps even a
disagreement among courts, does not by itself establish ambiguity, although we view
the disagreement of courts in this matter as a strong indication of an ambiguity.”).
                                    11


holding that application of the 2005 amendment to Holm, who was

convicted of a crime in 2002, did not violate the Ex Post Facto Clause

because “[t]he 2005 amendment was merely a clarification of the 2001

amendment.” Id. at 416. We explained,

      Because the 2005 amendment did not result in more
      onerous punishment and because the loss of future earned
      time under the correct interpretation was foreseeable, the
      application of the 2005 amendment to Iowa Code section
      903A.2(1)(a) to prisoners who committed their crimes before
      the amendment does not violate the Ex Post Facto Clauses of
      the United States and Iowa Constitutions.

Id. at 416–17 (emphasis added). Our subsequent decisions have adhered

to the interpretation adopted in Holm. See Reilly v. Iowa Dist. Ct., 783

N.W.2d 490, 495 (Iowa 2010) (“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).”); Dykstra, 783 N.W.2d at 478 (“Under

IDOC policy applying [the 2005] amendment, an inmate will no longer

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

any previously accrued earned time.”).

      We now must confront the IDOC’s 2016 policy changing its

interpretation of section 903A.2(1)(a)(2) contrary to Holm to forfeit earned

time accrued before the offender refuses or is removed from SOTP. The

fighting issue is whether the IDOC lawfully forfeited Miller’s earned time

accrued before his removal from SOTP. We apply the doctrines of stare

decisis and legislative acquiescence to hold the IDOC erred in forfeiting

that earned time.

      B. Stare Decisis and Legislative Acquiescence. Stare decisis “is

a Latin term meaning ‘to stand by things decided.’ ” State v. Miller, 841

N.W.2d 583, 586 (Iowa 2014) (quoting Stare decisis, Black’s Law

Dictionary (9th ed. 2009)). “Courts adhere to the holdings of past rulings
                                          12


to imbue the law with continuity and predictability and help maintain

the stability essential to society.” Id. “From the very beginnings of this

court, we have guarded the venerable doctrine of stare decisis and

required the highest possible showing that a precedent should be

overruled before taking such a step.” McElroy v. State, 703 N.W.2d 385,

394 (quoting Kiesau v. Bantz, 686 N.W.2d 164, 180 n.1 (Iowa 2004)

(Cady, J., dissenting)).

       Furthermore,

       [t]he rule of stare decisis “is especially applicable where the
       construction placed on a statute by previous decisions has
       been long acquiesced in by the legislature, by its continued
       use or failure to change the language of the statute so
       construed . . . .”

In re Estate of Vajgrt, 801 N.W.2d 570, 574 (Iowa 2011) (quoting Iowa

Dep’t of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa 2002)). Under

the doctrine of legislative acquiescence, “we presume the legislature is

aware of our cases that interpret its statutes.” Ackelson v. Manley Toy

Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013). “When many years pass

following such a case without a legislative response, we assume the

legislature has acquiesced in our interpretation.” Id.
       In 2009, we upheld the IDOC’s interpretation of section 903A.2 as

halting the ongoing accrual of earned time after removal from or refusal

to participate in SOTP without forfeiture of previously accrued earned

time. See Holm, 767 N.W.2d at 414, 418. The legislature has amended

the statute five times without altering our interpretation in Holm. 5 We

       5The  legislature has amended other language in section 903A.2 after Holm
without affecting that decision’s statutory interpretation. See 2011 Iowa Acts ch. 22,
§ 2 (amending subsection 3 to allow accrual of earned credit for time served in a
“municipal holding facility” prior to placement in an IDOC-controlled institution); 2015
Iowa Acts ch. 65, § 3 (amending subsection 5 to provide that earned time accrued by
inmates sentenced to life under section 902.1 “shall not reduce any mandatory
                                         13


thus conclude that the legislature acquiesced in Holm’s interpretation of

section   903A.2.       Moreover,     the     Holm   interpretation    avoids    any

constitutional infirmity under the Ex Post Facto Clause that may arise

upon a retroactive forfeiture of earned time. See State v. Thompson, 836

N.W.2d 470, 484 (Iowa 2013) (“We reiterate that it is ‘our mandate to

construe statutes in a fashion to avoid a constitutional infirmity where

possible.’ ” (quoting In re Prop. Seized for Forfeiture from Young, 780

N.W.2d 726, 729 (Iowa 2010))).

       The IDOC has not persuaded us that the interpretation it urged

and we adopted in Holm was plainly erroneous. It is worth noting that

section 903A.2(1)(a)(2) does not by its terms authorize “forfeiture” of

earned time. Instead, section 903A.2(2) says that “[e]arned time accrued

pursuant to this section may be forfeited in the manner prescribed in

section 903A.3.” Iowa Code § 903A.2(2). The implication is that section

903A.3, not section 903A.2, is the only way to forfeit earned time.

Section 903A.3, in turn, requires a finding that the inmate violated an

institutional rule and a determination of the amount of time that should

be forfeited based on the severity of the violation. Id. § 903A.3. Thus,

reading sections 903A.2 and 903A.3 in tandem might lead one to the

conclusion that section 903A.2(1)(a)(2) addresses time that has not yet

_______________________
minimum sentence imposed under [that] section”); 2016 Iowa Acts ch. 1011, § 119
(renumbering subparagraphs of subsection 1); 2017 Iowa Acts ch. 83, §§ 6–7 (amending
subsection 1 to address sentences for domestic abuse assault under section 902.13,
adding subparagraphs to paragraph b, and amending paragraph b to provide that “[a]n
inmate required to participate in a domestic abuse treatment program shall not be
eligible for a reduction of sentence unless the inmate participates in and completes a
domestic abuse treatment program established by the director”); 2017 Iowa Acts
ch. 122, §§ 18–21 (adding paragraph c to subsection 1 to provide that sentences for
attempted murder under section 707.11(5) are category “C” sentences and that an
inmate serving a category “C” sentence is ineligible for a reduction of sentence under
the section; adjusting paragraphs a and b to exclude category “C” sentences).
                                            14


been accrued and section 903A.3 (which is silent as to SOTP) addresses

time that was previously accrued.

       In any event, we apply stare decisis and conclude that Holm

provides the governing interpretation of section 903A.2.                       The IDOC

cannot overrule Holm by administrative fiat; rather, a legislative

amendment to section 903A.2 is required before the IDOC may begin

forfeiting previously accrued earned time based on a sex offender’s

refusal or removal from SOTP. 6

       C. Miller’s Additional Arguments.                     Miller argues that the

application of the 2016 policy to him violates the Ex Post Facto Clauses

of the United States and Iowa Constitutions. 7 Miller also asserts that the

ALJ’s decision, which prevented Miller from accruing earned-time credits

in the future, is entitled to preclusive effect and that the 2016

interpretation cannot be applied to his theft sentence.                      Because we

conclude the 2016 reinterpretation of section 903A.2 is precluded by our

prior decision in Holm and the district court properly ordered the IDOC

to credit Miller with the earned-time credits he accrued before his

removal from SOTP, we do not address these additional arguments.



       6Federal  courts have rejected agency retroactive reinterpretations that conflict
with prior judicial interpretations of statutes. See, e.g., Gutierrez-Brizuela v. Lynch, 834
F.3d 1142, 1148 (10th Cir. 2016); see also id. at 1151 (Gorsuch, J., concurring) (“When
the political branches disagree with a judicial interpretation of existing law, the
Constitution prescribes the appropriate remedial process.            It’s called legislation.
Admittedly, the legislative process can be an arduous one. But that’s no bug in the
constitutional design: it is the very point of the design. The framers sought to ensure
that the people may rely on judicial precedent about the meaning of existing law until
and unless that precedent is overruled or the purposefully painful process of
bicameralism and presentment can be cleared.”).
       7The district court agreed. “[I]f this Court’s analysis of the clarity, meaning, and
preclusive nature of the Holm interpretation of the 2005 amendment is incorrect, the
2016 policy constitutes an ex post facto violation with respect to Miller.”
                                    15


      Similarly, we do not address the IDOC’s arguments that it would

be better policy for all inmates to suffer the same loss of earned time for

a failure or refusal to complete SOTP regardless of when that failure or

refusal occurs. These policy arguments, we believe, are appropriate for

legislative consideration if the IDOC wants to pursue a legislative

amendment.

      IV. Disposition.

      For these reasons, we annul the writ of certiorari.

      WRIT ANNULLED.
