JOEL McKEAG, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-321 / 08-0752
Filed July 22, 2009
JOEL McKEAG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Michael J. Moon,
Judge.
On interlocutory appeal, Joel McKeag seeks review of the district court’s
rulings denying his motion for authorization to take depositions at state expense
and denying his motion to reconsider, enlarge, and amend. AFFIRMED.
Merrill Swartz of The Swartz Law Firm, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, David Vancompernolle, Assistant
Attorney General, and Jennifer Miller, County Attorney, for appellee State.
Heard by Eisenhauer, P.J., and Doyle and Mansfield, JJ.
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PER CURIAM
On interlocutory appeal, Joel McKeag seeks review of the district court’s
rulings denying his application for authorization to take depositions at state
expense and denying his motion to reconsider, enlarge, and amend. We affirm.
I. Background Facts and Proceedings.
McKeag pled guilty to sexual abuse in the second degree and burglary in
the first degree in violation of Iowa Code sections 709.1(1), 709.3(1), 713.1, and
713.3 (1991) for crimes he committed on February 5, 1993. On August 24, 1993,
he was sentenced to a term of imprisonment of twenty-five years on each count,
to be served consecutively.
On April 18, 2007, McKeag filed a pro se application for postconviction
relief, alleging the Iowa Board of Parole had violated the Ex Post Facto Clause of
the Constitution by giving him a case file review rather than an in-person
interview in determining whether to grant him parole.
Thereafter, McKeag’s
court-appointed counsel filed a supplemental application for post-conviction
relief, further alleging that the parole board’s use of case file reviews in lieu of
personal interviews violated McKeag’s procedural due process rights.
On December 5, 2007, the State filed an answer and a motion for
summary dismissal, arguing a postconviction relief proceeding is not the correct
procedural mechanism for complaints about the parole board’s interview process;
but rather, that chapter 17A is the exclusive mechanism through which McKeag
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can appeal the actions of the board.1
McKeag filed a motion to take six
depositions at state expense, which was eventually denied by the court after a
hearing. McKeag then filed a pro se motion to reconsider, enlarge, and amend,
which the court also denied. The supreme court granted McKeag’s application
for interlocutory appeal from those district court rulings, and his appeal is now
before us.
II. Scope and Standard of Review.
We review a district court’s discovery rulings for an abuse of discretion.
Baker v. City of Iowa City, 750 N.W.2d 93, 97 (Iowa 2008). We afford the district
court wide latitude with regard to such rulings. Martin v. B.F. Goodrich Co., 602
N.W.2d 343, 345 (Iowa 1999). An abuse of discretion will be found when the
district court exercises its discretion on grounds or for reasons that are clearly
untenable or to an extent that is clearly unreasonable. Baker, 750 N.W.2d at 97.
Insofar as the district court’s rulings in this case to date have effectively
dismissed McKeag’s application for postconviction relief, we review those rulings
for corrections of errors at law. Iowa R. App. P. 6.4.
III. Merits.
With regard to whether McKeag’s action was properly brought as an
application for postconviction relief under chapter 822, the district court stated:
Applicant filed a petition on April 18, 2007 which he has
denominated a postconviction relief action. He does not, however,
challenge either his conviction or sentence, but rather asserts that
the Iowa Board of Parole has failed to follow proper procedures and
allow him a personal interview as part of the Board’s consideration
1
The State’s motion for summary judgment has been continued several times and has
yet to be ruled upon. This case is now on interlocutory appeal and all district court
proceedings related to this matter are stayed.
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of his release. Accordingly, the court finds that the action presently
pending is not properly brought under Chapter 822 of the Iowa
Code but is indeed an appeal from an administrative decision under
Iowa Code Chapter 17A.
The court further determined:
The general rule with respect to appeals to the district court
from agency decisions is that the trial court is limited to the record
made at the agency level. As with any rule there are exceptions.
Iowa Code Section 17A.19(7) provides that the reviewing court
“may hear and consider such evidence as it deems appropriate.” It
is discretionary with the trial court whether it will go outside of the
record made at the agency level. If the court does allow additional
testimony or evidence, it is limited as “the additional evidence may
not be used as a springboard for the trial of factual issues de novo
in district court.” The Iowa Supreme Court in Sindlinger v. Iowa
State Board of Regents, 503 N.W.2d 387, 390 (Iowa 1993) stated
that any additional evidence should be for the “limited purpose of
highlighting what actually occurred at the agency level in order to
facilitate the court’s search for error of law or unreasonable,
arbitrary, or capricious action.”
Applicant has requested that he be allowed to take the
depositions . . . at state expense. To the extent that those
individuals have any information that is relevant to this proceeding,
that information would be contained in the file. If there is additional
information which they have that is not contained in the file, then it
would not have been used by the Parole Board and would have no
relevance in this proceeding. Any information those individuals
have but which was not supplied to the Parole Board if given now to
the trial court would be tantamount to retrying the agency case at
the district court level and is not appropriate.
(Citations omitted.)
Through his counsel, McKeag contends the district court abused its
discretion by not allowing him to take depositions at state expense, and that the
court erred in determining his action was not a postconviction relief action. In his
pro se brief, McKeag further claims the State waived or failed to preserve any
affirmative defenses,2 and supplements his counsel’s argument that the court
2
Among other contentions, McKeag argues the State’s answer was untimely filed.
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erred in deciding the controlling authority for his action was chapter 17A rather
than chapter 822.
The parole board is a state agency governed by the Iowa Administrative
Procedures Act, chapter 17A. Frazee v. Iowa Bd. of Parole, 248 N.W.2d 80, 82
(Iowa 1976) (holding parole revocation is agency action and chapter 17A judicial
review is applicable); see also Iowa Code ch. 17A. Under chapter 17A, agency
action includes the failure to act, the exercise of agency discretion, or the failure
to perform any agency duty. Iowa Code § 17A.2(2). Therefore, the board’s
alleged failure to personally interview McKeag is agency action.
By its terms, the judicial review provisions of chapter 17A are “the
exclusive means by which a person . . . adversely affected by agency action may
seek judicial review of such agency action” except as expressly provided
otherwise by another statute referring to chapter 17A by name. Iowa Code §
17A.19 (emphasis added); Johnson v. Dep’t of Corr., 635 N.W.2d 487, 489 (Iowa
Ct. App. 2001) (“The district court is deprived of jurisdiction over the case if
administrative remedies are not exhausted.”).
Chapter 822, governing
postconviction actions, does not expressly negate the applicability of chapter
17A. Dougherty v. State, 323 N.W.2d 249, 250 (Iowa 1982) (upholding dismissal
of postconviction action where postconviction chapter does not expressly negate
the applicability of chapter 17A). See Iowa Code ch. 822. Therefore, the chapter
17A judicial review procedures are McKeag’s exclusive means of judicial review.
See Dougherty, 323 N.W.2d at 250 (holding chapter 17A is the exclusive means
of reviewing work release revocations).
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As such, we find no error in the district court’s determination that
McKeag’s action is not properly brought under chapter 822. McKeag is required
to challenge the parole board’s agency action through the board’s administrative
appeals process. After he has exhausted his administrative appeals, McKeag
may seek judicial review. See Johnson, 635 N.W.2d at 489 (requiring exhaustion
of administrative appeals by prisoner raising constitutional challenges to parole
board’s denial of parole/work release); see also Shell Oil Co. v. Blair, 417 N.W.2d
425, 430 (Iowa 1987) (holding factual record to resolve constitutional challenges
should be developed before the agency).
Here, regardless of whether McKeag has exhausted administrative
remedies,3 we find the district court did not abuse its discretion in refusing to
authorize McKeag to pursue depositions at state expense. Although Iowa Code
section 17A.19(7) contemplates that additional evidence may be taken under
certain circumstances, for a number of reasons McKeag has not met his burden
of showing that the depositions he sought were necessary and appropriate here.
First, in Taylor v. State, 752 N.W.2d 24 (Iowa Ct. App. 2008), we
discussed the evidence that would be needed to prove an ex post facto violation
based on the 1995 change in the law.
Specifically, we held that it was not
enough for an inmate to prove that a higher percentage of inmates with personal
interviews currently receive parole than inmates who have undergone file
reviews. Taylor, 752 N.W.2d at 29-30. There could be many reasons for this,
including differences in the two inmate populations. Rather, the inmate must
The State argues that the district court properly treated McKeag’s action as one for
judicial review of administrative action under Iowa Code section 17A.19, but does not
specifically argue that McKeag failed to exhaust administrative remedies.
3
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prove that “receiving annual case file reviews instead of personal interviews
creates a sufficient risk of serving a longer term of incarceration.”
Id. at 30
(emphasis added). In other words, the inmate must show that the change from
personal interviews to file reviews has actually caused him or her to have a
significant risk of a longer period of incarceration.
To establish this, it would seem that McKeag at a minimum should have
hard statistical data that prove causation, not just correlation. Thus, McKeag
may need to present regression analysis through expert testimony.
See
Shabazz v. Gabry, 123 F.3d 909, 914-915 (6th Cir. 1997) (indicating that a
prisoner had to prove a legal nexus between the decrease in regularly scheduled
parole hearings and eligibility for parole based on “reliable statistical analysis”
rather than “anecdotal observations and personal speculation”).
Against this
backdrop, it is difficult to see how the depositions that McKeag seeks would
advance his claim.
Second, McKeag refused to tell either the district court or this court what
topics he intends to explore in the depositions or what he intends to prove with
them.
McKeag argues that he “should not be forced to lay out the exact
questions he will ask.” However, we believe it is not an abuse of discretion to
deny depositions at state expense when the party seeking the depositions
refuses to say, with some degree of specificity, what he or she hopes to establish
in those depositions and how they will help prove his or her case.
For this
reason as well, the district court was well within its discretion to deny McKeag’s
deposition requests.
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Third, the district court properly exercised its discretion to deny the
depositions given McKeag’s list of deposition candidates. For example, four of
the proposed deponents were individuals who had interacted with McKeag in
prison but would not have been involved in the parole decision.
Accordingly, we uphold the district court’s ruling denying McKeag’s
request to take depositions.
We have considered the additional issues raised and issues not
specifically addressed are without merit. We find no error or abuse of discretion
by the district court, and we affirm the court’s prior rulings.
AFFIRMED.
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