author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2006 SD 29
    STATE of South Dakota, Plaintiff and Appellant, v. ONE 1995 SILVER JEEP GRAND CHEROKEE, VIN # 1J4GZ78Y4SC548019 and $497 In American Currency, Defendant and Appellee.
    No. 23735.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided March 29, 2006.

      Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, SD, for plaintiff and appellant.
    Julie A. Hofer, Sioux Falls, SD, for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] The State of South Dakota (State) appeals the circuit court’s order determining forfeiture of one 1995 Silver Jeep Grand Cherokee, vin # 1J4GZ78Y4SC548019, was grossly disproportionate in violation of the Eighth Amendment of the United States Constitution and Article VI, Section 28 of the South Dakota Constitution. We reverse.

FACTS

[¶ 2.] On October 9, 2003, a complaint was filed by the State against the defendant vehicle for forfeiture pursuant to SDCL chapter 34-20B. The record owner of the vehicle was Adam Kroupa. The complaint alleged that:

said vehicle transported, possessed, concealed, used or was intended for use, to transport or in any manner facilitate the transportation, sale, receipt, possession or concealment of certain controlled drugs or substances or marijuana or was used for or acquired or derived from the unlawful purchase, attempted purchase, distribution or attempted distribution of any controlled drug or substance or marijuana.

The parties entered into a stipulation of facts which was the basis for the circuit court’s determination in this matter. Those stipulated facts provided in relevant part:

Adam Kroupa, the Claimant in this matter, is the sole owner of the Defendant Vehicle! ].
On October 7, 2003, Adam Kroupa possessed methamphetamine.
On or about October 7, 2003, Adam Kroupa placed the methamphetamine in the Defendant Vehicle.
Kroupa drove the Defendant Vehicle to 5801 West Christopher Place, in Sioux Falls, Minnehaha County, South Dakota, and transported the methamphetamine in the Defendant Vehicle.
Upon arrival at 5801 West Christopher Place, Adam Kroupa and Jennifer Collins rang the bell to apartment 302, where law enforcement officers were executing a search warrant for narcotics.
A subsequent search of apartment 302 revealed 6 tablets of methylene-dioxy-methamphetamine, commonly called “ecstasy,” a controlled substance, with a street value of approximately $150, as well as a coffee grinder with what appeared to the officers to be pseu-doephedrine, a component in the manufacture of methamphetamine.
Adam Kroupa is on federal parole for possession with intent to distribute controlled substances, and therefore the officers asked whether he was required to submit to a search of his vehicle.
Trooper Koltz was called and his drug dog alerted and indicated the presence of the odor of illegal narcotics in the Defendant Vehicle.
Detective Mathews and Trooper Koltz searched the vehicle and found the methamphetamine Kroupa had placed within the Defendant Vehicle.
Kroupa admitted the methamphetamine belonged to him.
The Defendant Vehicle was seized at the scene.
The approximate retail value of the Defendant Vehicle is $7400.
According to the detectives, the approximate street value of the methamphetamine seized from the Defendant Vehicle is $50.
Kroupa was arrested at the scene for possession of a controlled substance, and eventually entered a plea of guilty in that criminal case to Ingesting a Substance, in violation of SDCL 22^12-15.

Based on these stipulated facts, Kroupa asserted that forfeiture of the vehicle was unconstitutionally disproportionate as an excessive fine in violation of the United States and South Dakota Constitutions. The circuit court agreed and dismissed the complaint. State appeals.

STANDARD OF REVIEW

[¶ 3.] “[WJhen an asserted error implicates an infringement of a constitutional right, we employ a de novo standard of review.” State v. Krahwinkel, 2002 SD 160, ¶ 13, 656 N.W.2d 451, 458 (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43). Thus, no deference is given to the circuit court’s determination, and the decision is fully reviewable by this Court. Thieman v. Bohman, 2002 SD 52, ¶ 10, 645 N.W.2d 260, 262.

ANALYSIS

ISSUE

[¶ 4.] Whether the circuit court erred in determining forfeiture was grossly disproportionate in violation of the United States and South Dakota Constitutions.

[¶ 5.] This civil forfeiture action was predicated upon SDCL 34-20B-70, which is based on the federal forfeiture statutes. That statute provides:

The following are subject to forfeiture and no property right exists in them: * * *
(4) All conveyances including aircraft, vehicles, or vessels, which transport, possess or conceal, or which are used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of marijuana in excess of one-half pound or any quantity of any other property described in subdivision (1) or (2), except as provided in §§ 34-20B-71 to 34-20B-73, inclusive. This subdivision includes those instances in which a conveyance transports, possesses or conceals marijuana or a controlled substance as described herein without the necessity of showing that the conveyance is specifically being used to transport, possess or conceal or facilitate the transportation, possession or concealment of marijuana or a controlled substance in aid of any other offense[.]

SDCL 34-20B-70. This Court has held that “[possession, transportation or concealment of any amount of methamphetamine subjects the vehicle to forfeiture under SDCL 34-20B-70.” State v. One 1983 Black Toyota Pickup, 415 N.W.2d 511, 513 (S.D.1987). Moreover, forfeiture is not dependent upon a criminal conviction related to the substance. State v. One 1966 Pontiac Auto., Etc., 270 N.W.2d 362, 364 (S.D.1978). Forfeiture proceedings are civil actions against the property seized, and the standard of proof is preponderance of the evidence. SDCL 34-20B-80.

[¶ 6.] This Court has not addressed the limits imposed by the Eighth Amendment and its South Dakota counterpart, Article VI, Section 23, to the forfeiture of a vehicle. Our only analogous case on this issue is Krahwinkel, which addressed a gross disproportionality claim on a civil penalty for an overweight truck violation. 2002 SD 160, ¶38, 656 N.W.2d at 464-65. In that case, we recognized:

The Eighth Amendment provides that ‘excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ This guarantee protects against fines that are grossly disproportionate to the offense. Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). The constitutional inquiry regarding excessive fines is proportionality: the amount of the fíne must bear some relationship to the gravity of the offense that it is designed to punish. Id. at 622-23, 113 S.Ct. at 2812, 125 L.Ed.2d at 488; U.S. v. Ursery, 518 U.S. 267, 283, 116 S.Ct. 2135, 2145, 135 L.Ed.2d 549 (1996). Furthermore, the Eighth Amendment proscription against excessive fines applies to fines imposed by the government in civil actions. Austin, 509 U.S. at 610, 113 S.Ct. at 2806, 125 L.Ed.2d at 488.

Id. In Austin, a case involving forfeiture based on a violation of South Dakota’s drug laws, the United States Supreme Court explained:

The Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense. The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties.

509 U.S. at 609-10, 113 S.Ct. at 2805-06, 125 L.Ed.2d at 488 (internal citations omitted). As a result, the United States Supreme Court has held that the Eighth Amendment Excessive Fines Clause applies to civil forfeiture proceedings. Id. See also $100 and A Black Cadillac v. Indiana, 822 N.E.2d 1001, 1010 (Ind.App. 2005) (holding Indiana forfeiture statute subject to Excessive Fines Clause).

[¶ 7.] “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 2036, 141 L.Ed.2d 314 (1998). As the Eighth Circuit Court of Appeals has recognized, “[tjhough the Supreme Court has held that ‘a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense,’ the Court has expressly declined to enunciate a test of gross disproportionality.” United States v. Dodge Caravan Grand SE, 387 F.3d 758, 763 (8th Cir.2004). The Eighth Circuit Court of Appeals has articulated a two-pronged approach to assess any such challenge: First, the claimant must “make a prima facie showing of gross dispropor-tionality;” and, second, if the claimant can make such a showing, “the court considers whether the disproportionality reaches such a level of excessiveness that in justice the punishment is more criminal than the crime.” Id.

[¶ 8.] The assessment of gross disproportionality requires particular attention to a number of factors surrounding the forfeiture. As the Eighth Circuit Court of Appeals has instructed:

To determine whether the facts indicate gross disproportionality, the district court must consider multiple factors, including the extent and duration of the criminal conduct, the gravity of the offense weighed against the severity of the criminal sanction, and the value of the property forfeited. We have also identified other helpful inquiries such as an assessment of the personal benefit reaped by the defendant, the defendant’s motive and culpability and, of course, the extent that the defendant’s interest and the enterprise itself are tainted by criminal conduct. This list is not exhaustive, and, in dicta, we have criticized an excessive fines analysis that failed to consider factors, such as the monetary value of the property, the extent of the criminal activity associated with the property, the fact that the property was a residence, the effect of the forfeiture on innocent occupants of the residence, including children, or any other factors that an excessive fine analysis might require. A survey of case law also illustrates other potentially relevant factors, such as whether the Act authorizing forfeiture is aimed at the underlying criminal act giving rise to the forfeiture, the harm caused by the criminal wrongdoer’s acts, and the value of drugs seized.

Id. (internal citations omitted). In addition, “if the value of the property forfeited is within or near the permissible range of fines ... the forfeiture is almost certainly not excessive.” Id. Criminal fines are particularly relevant as they reflect judgments made by the legislature about the appropriate punishment for an offense. Bajakajian, 524 U.S. at 336, 118 S.Ct. at 2037, 141 L.Ed.2d at 314. However, in weighing these factors “mathematical exactitude in the analysis is not required.” Property Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 2002).

[¶ 9.] Furthermore, “the comparison in a disproportionality analysis must be made between the value of the property to be forfeited and the severity of the offense as viewed by the legislature, not the actual sanction imposed.” Id. (emphasis added). This is because:

[A] defendant who received only probation could not lose any property to forfeiture because any value attached to the property would be disproportionate to the criminal sanction. It would also be poor public policy because a prosecutor who has an eye toward possible forfeiture would naturally press for the imposition of the maximum sentence in order to make a forfeiture less subject to a claim of disproportionality. Further, as a criminal conviction is not a prerequisite to a forfeiture action, in some cases there may not even be a sentence or other sanction to consider.

Id. at 21-22. Also relevant is a correlation between the offense and the “damages sustained by society or to the cost of enforcing the law.” One Car, 1996 Dodge X-Cab Truck, 122 S.W.3d 422, 425 (Tex.App. 2003).

[¶ 10.] In this case, the circuit court was limited in its consideration of relevant factors by the stipulation of the parties. Those stipulated facts established that Kroupa possessed methamphetamine, he placed that methamphetamine in the vehicle, he drove to an apartment that was being searched for narcotics, narcotics were found at that apartment, ingredients for the manufacture of methamphetamine were also found at the apartment, Kroupa possessed a large amount of cash, a drug dog hit on the vehicle, methamphetamine was found in the vehicle, Kroupa admitted the methamphetamine belonged to him and he was on probation for federal crimes relating to his possession of a controlled substance with the intent to distribute. These stipulated facts do not suggest gross disproportionality in the forfeiture of this $7400 vehicle.

[¶ 11.] In this case, the circuit court limited and placed undue consideration on the crime Kroupa pleaded guilty to (misdemeanor ingestion) and the maximum punishment for that crime (one year imprisonment and/or a $1,000 fine) in assessing disproportionality. This overly restrictive view is clearly evidenced by the circuit court’s findings:

Adam Kroupa was arrested for possession of a controlled substance, and plead[ed] guilty to ingesting a substance under SDCL 22^42-15, which is a Class 1 misdemeanor punishable by one year imprisonment and/or a $1000 fine. Kroupa received a one year sentence with all but thirty days suspended, plus costs. Kroupa did not receive a fine. The forfeiture of Kroupa’s vehicle would inflict a punishment 7.4 times the fine Kroupa was subject to for ingesting a substance[.]
In this case, the possible fine which could have been imposed for the offense is substantially less than the value of the Defendant vehicle, and forfeiture of the vehicle is grossly disproportionate to the gravity of the offense, and is therefore an excessive fine and unconstitutional.

A court must consider the entire circumstances surrounding the offense that lead to the forfeiture when assessing gross dis-proportionality. See Dodge Caravan Grand SE, 387 F.3d at 763. The circuit court disregarded the fact Kroupa was in possession of a controlled substance and was also a habitual offender and thus faced a possible fifteen years in the penitentiary and a $15,000 fine. SDCL 22-42-5, 22-7-7, 22-6-1. As previously mentioned, Kroupa’s guilty plea to a lesser charge did not foreclose consideration of the facts of the entire offense, especially in this civil case with a lesser burden of proof. See $100 and A Black Cadillac, 822 N.E.2d at 1011—12; Property Seized from Terrell, 639 N.W.2d at 21. The circuit court erred as a matter of law in limiting its analysis to the fine for the ingestion charge when assessing gross disproportionality. An assessment of all the relevant factors in this situation does not suggest that this forfeiture was grossly disproportionate to the gravity of the offense in violation of the United States or South Dakota Constitutions.

[¶ 12.] Reversed.

[¶ 13.] KONENKAMP and ZINTER, Justices, concur.

[¶ 14.] SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 15.] The trial court held that the forfeiture of the vehicle valued at $7,400 was grossly disproportionate to the gravity of the offense; that the possible fine which could have been imposed for the offense is substantially less than the value of the vehicle, and therefore, is an excessive fine and unconstitutional.

[¶ 16.] I would affirm the holding of the trial court.

[¶ 17.] This holding was fairly based on the stipulated facts between the parties which in key parts provide:

According to the detectives, the appropriate street value of the methamphet-amines seized from the Defendant’s vehicle is $50.
The appropriate retail value of the Defendant’s vehicle is $7,400.

[¶ 18.] In my view, the majority opinion goes far beyond the stipulated facts and puts its own spin on those facts and relevant law. In paragraph 6, the majority opinion acknowledges that this Court has not addressed the limits imposed by the Eighth Amendment and its South Dakota counterpart, Article VI, Section 23, to the forfeiture of a vehicle. To follow this majority opinion would make it clear that there ARE NO LIMITS and I dissent.

[¶ 19.] MEIERHENRY, Justice, joins this dissent.

      . The United States Supreme Court and this Court have held that forfeiture is not punishment for purposes of the Double Jeopardy Clause. Ursery, 518 U.S. at 278, 116 S.Ct. at 2142, 135 L.Ed.2d at 549; State v. Kienast, 1996 SD 111, ¶ 12, 553 N.W.2d 254, 256.

      . Therefore, it is permissible to consider the offense resulting in the forfeiture and not solely what a claimant has pleaded guilty to as a result of the offense. See $100 and A Black Cadillac, 822 N.E.2d at 1011-12. This is supported by the fact that the “conveyance used in connection with the controlled substance is considered to be the offender under the statute and there is no expressed or implied provision for a prior conviction of the registered owner as a condition precedent to forfeiture." One 1966 Pontiac Auto., Etc., 270 N.W.2d at 364.

      . This is consistent with Krahwinkel, where this Court considered “the amount of money expanded by the State” to enforce the overweight truck provisions and also the purpose of those provisions to "protect the roads from damage” and "insure the safety of the traveling public” as relevant factors when assessing a claim of gross disproportionality. 2002 SD 160, ¶¶ 38-39, 656 N.W.2d at 465.
      Along this same line, this Court has recognized that:
      Selling drugs is a harsh and unsavory business. Many drug dealers make handsome profits from their endeavors. Drug abuse has devastated countless American youth to include young South Dakotans. Drugs are a peril to our society.

        State v. Pettis, 333 N.W.2d 717, 720 (S.D. 1983).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 SD 31
    Amy WAGNER n/k/a Amy Lyngstad, Plaintiff and Appellee, v. Michael WAGNER, Defendant and Appellant.
    No. 23689.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided March 29, 2006.
    Rehearing Denied May 1, 2006.

      Amy Lyngstad, Yankton, SD, pro se plaintiff and appellee.
    Michael Wagner, Yankton, SD, pro se defendant and appellant.
   PER CURIAM.

[¶ 1.] Michael Wagner (Wagner) appeals the modification of his child support obligation. We affirm.

Facts and Procedural History

[¶ 2.] Wagner and Amy Lyngstad Wagner (Lyngstad) were married on May 12, 1990. They were divorced on March 16, 1999. Lyngstad was awarded sole custody of the couple’s two children, and Wagner was ordered to pay child support. Since that order, Wagner and Lyngstad have continued to litigate child support. Nine petitions for modification of child support have been filed, the most recent being March 11, 2005.

[¶ 3.] A hearing on the latest petition was held before a referee. The referee filed findings and an order recommending a child support obligation of $597 per month. Wagner objects to three of the referee’s findings. The relevant parts of those findings are:

(3) [Lyngstad] ... earns $9.00 per hour and works W hours a week. From January 1, 2005, through April 9, 2005, she earned bonuses ... in average of $191 a month.
(4) [Wagner] failed to submit any information regarding his income and he refused to answer any questions regarding his income. Department of Labor records reflect that ... Wagner was paid the sum of $8,08k from October 1, 200k, through December 81, 200k, which is an average of $2,695 per month....

(7) Neither party requested deviation from the child support schedule. (Emphasis added.)

[¶ 4.] Wagner’s specific objections are that: a) the referee committed perjury relating to finding 3 (Lyngstad’s hours of work) and finding 7 (request for a deviation), and Lyngstad committed perjury on her financial statement; b) a writ of mandamus should have been issued for the arrest of the referee and Lyngstad for the alleged perjury; c) Lyngstad had federal felony convictions, and therefore, her petition should have been denied; and d) with respect to finding 4, it was improper for the referee to independently obtain evidence of Wagner’s income from Department of Labor records. The circuit court held a hearing on these objections and issued an order affirming the referee’s report in all material respects. Wagner appeals.

Decision

[¶ 5.] It is well settled that we review a child support referee’s findings of fact under the clearly erroneous standard and questions of law are fully reviewable. Mixed questions of law and fact are classified as questions of law and are reviewable de novo. In addition, when the circuit court has adopted a child support referee’s findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Further, in applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.

Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774 (internal citations, alterations, and quotation marks omitted).

a) Alleged Perjury

[¶ 6.] Wagner makes three allegations of perjury: one against Lyngstad and two against the referee. Wagner claims that Lyngstad committed perjury on a financial statement that was attached to her petition for child support modification. On the financial statement, the following question concerning health insurance was asked: “Do you have health insurance available for dependents through your employer?” Wagner alleges that Lyngstad committed perjury in answering “no” to this question.

[¶ 7.] However, a review of the hearing transcript reflects that Lyngstad was simply confused in answering this question:

Referee: And then I see that you have medical and dental insurance deductions from your pay?
Lyngstad: That’s correct.
Referee: Do those insurance plans [referring to Lyngstad’s employment plan] cover the children?
Lyngstad: No, they do not cover the children, because at this time I did not elect to do that because they have insurance through their father.

(Emphasis added.) This testimony, and a further exchange between the referee and Lyngstad, reveal that Lyngstad answered “no” on her financial statement only because the children were covered by Wagner’s plan, and therefore, there was no elective coverage available for the children under her plan at the time she completed her financial statement. Considering the entire record, there is no evidence of a knowing and intentional misstatement of material fact. See SDCL 22-29-1.

[¶ 8.] Wagner next claims that the referee committed perjury by entering finding of facts 3 and 7. In finding 3, the referee found that Lyngstad worked forty hours a week. Wagner alleges perjury because there is documentary evidence (pay stubs) reflecting that on two occasions Lyngstad worked less than forty hours. However, when asked how many hours she normally worked each week, Lyngstad testified: “I am normally supposed to get forty hours. The last couple weeks it has been a little bit slower. They’re renegotiating a contract ... [njormally forty, yes, that is correct.” Thus, Wagner’s allegation of perjury on this finding is totally without merit.

[¶ 9.] In finding 7, the referee found that neither party requested a deviation from the basic support schedule. With respect to this finding, Wagner correctly points out that Lyngstad requested a deviation on her petition, but the referee found that “no party requested deviation.” However, in reviewing this issue we note that SDCL 25-7-6.10 only allows a referee to address deviations when one has been “raised” by a party and only upon the entry of specific findings following the hearing. In this case, the record reflects that although Lyngstad requested a deviation on her written application, she did not preserve the issue at the hearing by producing evidence or making a request for a deviation. Therefore, finding 7 simply explains why the referee did not address deviations. In essence, Lyngstad’s initial request was withdrawn because she failed to preserve it at the hearing. Under these circumstances, the referee’s finding was correct.

b)Writ of Mandamus

[¶ 10.] “[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear[.]” Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. “To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to ‘performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Id. (emphasis in original) (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242). However, “[a] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D. and Texas, 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Therefore, Wagner, as a “citizen[,] lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Id. For that reason, Wagner had no legal right to the issuance of a writ of mandamus from the circuit court. He also had no right to a writ of mandamus because his claims of perjury are meritless.

c)Federal Felony convictions

[¶ 11.] Wagner alleges that Lyngstad has federal felony convictions, and therefore, her request for modification should be denied. However, a child support proceeding only determines the amount of money necessary to support a child, and the support amount is not based on the character of the parents. Furthermore, there was no factual dispute in the hearing that was resolved on Lyngstad’s credibility. Therefore, absent an issue of credibility, Lyngstad’s criminal convictions, if any, were not material in this child support proceeding. Wagner’s argument is without merit.

d)Wagner’s Wages

[¶ 12.] In his last issue, Wagner argues that the referee erred in independently obtaining evidence of Wagner’s wages from a source outside the hearing. In the referee’s defense, the record reveals that Wagner was completely uncooperative and in fact obstructive in determining his employment and wages at the hearing, as is demonstrated by the following exchange:

'Referee: State your full name.
Wagner: Mike Wagner.
Referee: Where do you live?
Wagner: I’ll plead the fifth.
Referee: Well, Mr. Wagner, you can’t plead the fifth on your address. There are no criminal proceedings pending in this court, so you’re not incriminated in any way by stating your address. So, what’s your address?
Wagner: None.
Referee: You’re not living at 809 Burgess Road, Yankton, South Dakota?
Wagner: At times, but not always.
Referee: Well, okay, for purposes of this hearing it suffices that that’s where you’re living, and you’re single, correct?
Wagner: Yeah.
Referee: And you’re employed, right?
Wagner: I’m not answering it.
Referee: Well, isn’t it true that you’re employed by a company called Kohl-berg Pioneer, Incorporated?
Wagner: Not answering it.
Referee: Okay, well, you don’t have to answer it. I know that that’s the case, Mr. Wagner.
Wagner: How do you know that?
Referee: Because I checked.
Wagner: Why did you check? You’re the Referee.
Referee: Because I figured you might be uncooperative. And are you willing to tell what your rate of pay is?
Wagner: She’s been convicted of identity theft. She’s taken out credit cards in my name before. I’m not giving you identity information so she can do it again.
Referee: Okay. So would you — or then can I interpret that as meaning you’re not going to tell me your wages from over at Pioneer?
Wagner: Nope.
Referee: Okay. For the record, according to the Department of Labor records from the period of—
Wagner: I object to this.
Referee: Well, your objection is noted, but it’s overruled. The record reflects that from the period of October through December of 2004, Mr. Wagner was paid $8084 from Kohlberg Pioneer, Incorporated, which amounts to monthly gross income average of $2695.

Thus, because Wagner refused to disclose his wage information, the only information available to the referee was what the referee had obtained from the Department of Labor records. Those records indicated that Wagner’s wages averaged $2,695 per month.

[¶ 13.] Additionally, while Wagner obstructed all efforts to determine his wage information and whether he was employed, he simultaneously sought a deduction for his contributions to his employer’s 401(k) plan. But, in pursuing that deduction, he did not submit verifying pay stubs apparently because they would have revealed his wages.

[¶ 14.] However, in the subsequent appeal to the circuit court, Wagner was granted his request to submit a pay stub to verify his 401(k) contributions. And, on this occasion, Wagner again attempted to hide his wages, this time by submitting a pay stub on which his wage information was “whited out.” Nevertheless, upon receiving the pay stub, the circuit court viewed it closely and observed that notwithstanding the attempt to obliterate the wage information, the wages were readable through the white out. That pay stub also confirmed the referee’s finding. Once the court circuit disclosed that it could verify Wagner’s earnings through his own exhibit, Wagner then attempted to withdraw the exhibit, informing the court that it could not receive any new evidence at the hearing. Thus, the circuit court, in its memorandum decision, correctly observed what Wagner was attempting to do:

Clearly, Mr. Wagner wants to have it both ways. On the one hand he would like to have some consideration for his retirement contributions, but he doesn’t feel the court should have the readily available payroll information in his possession to verify his gross income. Mr. Wagner has proceeded in an uncredible manner. Once Mr. Wagner became aware that the court could verify that his gross earnings were in fact in the amount that the [r]eferee determined from the Department of Labor records, he has determined that he should withdraw the evidence which he offered to the court as part of his objections and he continues to do his best to hinder the [rjeferee and the court from obtaining the truth.

The circuit court ultimately affirmed the referee’s finding on wages.

[¶ 15.] Now on appeal, Wagner claims that the circuit court’s child support order was erroneously based upon information that the referee had obtained from the Department of Labor outside of the hearing process. We do not, however, reach this issue because Wagner has failed to demonstrate prejudice. “The party alleging error on appeal must show ... error affirmatively by the record and not only must the error be demonstrated but it must also be shown to be prejudicial error.” Tovsland v. Reub, 2004 SD 93, ¶ 15, 686 N.W.2d 392, 398 (citing City of Sioux Falls v. Kelley, 513 N.W.2d 97, 104 (S.D. 1994)). “Error is prejudicial when, in all probability ... [i]t produced some effect upon the final result and affected rights of the party assigning it.” Novak v. McEldowney, 2002 SD 162 ¶ 7, 655 N.W.2d 909, 912 (emphasis added) (internal citations and quotation marks omitted).

[¶ 16.] Here, Wagner failed to demonstrate prejudice because even if the referee erred in the procedural manner by which he obtained the wage information, Wagner agreed that the referee’s substantive wage information was correct. Wagner’s agreement occurred when he requested the referee to give him the deduction for his 401 (k) retirement plan contributions. When informed that the referee would need to know Wagner’s income from employment before the referee could calculate the deduction, Wagner stated “[y]ou just stated my income from my job.” The referee then explained “I know what your income as reported in 2004 by the Department of Labor, and that’s the only information I have. I’m giving you an opportunity to give me further information. If you don’t want to, then I won’t take it.” Wagner then replied “[i]t’s five percent off of what it says there [referring to the Department of Labor wage information].” Thus, Wagner agreed that the Department of Labor information was correct. And, because Wagner agreed that the substantive wage information was correct, the referee’s procedural method of obtaining it had no effect on the final result. Therefore, Wagner was not prejudiced by the procedure utilized by the referee.

Motion for costs and damages

[¶ 17.] Wagner filed an appellate motion for “costs” and “damages.” SDCL 15-30-6 sets forth the “costs” that may be allowed to the prevailing party on an appeal to this Court. Because Wagner has failed to prevail on any issue, he is not entitled to costs. Furthermore, his alleged “damages” are not recoverable under SDCL 15-30-6. His motion is denied.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The circuit court did, however, correct one conceded mistake with respect to a health insurance deduction. With the correction, Wagner’s final child support obligation was $562 per month.

        . SDCL 25-7-6.10 provides in part: “Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings[.]”

      . The referee verbally provided the information. There was no evidence describing how the information was obtained.

      . We express no opinion on the propriety of this procedure.

      . SDCL 15-30-6 provides in part:
      Costs on appeal to the Supreme Court shall be allowed to the prevailing party in civil actions and special proceedings, provided, however, that the cost of printing or reproducing briefs as set out in ... and the cost of transcripts ... are recoverable only if the required proof of such costs is filed with the clerk of the Supreme Court prior to entry of the court's decision....


author: STREIT, Justice.

text:
    IOWA GROCERY INDUSTRY ASSOCIATION, Appellee, v. CITY OF DES MOINES, Appellant.
    No. 04-1914.
    Supreme Court of Iowa.
    April 14, 2006.

      Mark Godwin, Des Moines, for appellant.

      John F. Lorentzen of Nyemaster, Goode, West, Hansell & O’Brien, P.C., Des Moines, for appellee.
   STREIT, Justice.

Arguments over government fees concerning liquor have swirled in a cocktail of political debate since the Whiskey Rebellion in 1794. Iowa grocers complain the administrative fees being charged by Des Moines on liquor licenses are illegal. The defendant, the City of Des Moines, appeals from the district court’s judgment declaring a municipal ordinance imposing administrative fees on liquor licenses and beer and wine permits illegal. The City claims the district court erred when it determined the Iowa Alcoholic Beverage Control Act conflicts with, and thereby preempts the administrative fee ordinance. Because we find the ordinance conflicts with the statutory scheme created for application fees, we affirm.

I. Facts and Prior Proceedings

The plaintiff, the Iowa Grocery Industry Association (hereinafter “IGIA”), is a group of grocers, some of which operate grocery stores within the City of Des Moines. Pursuant to the statutory scheme provided by the Iowa Alcoholic Beverage Control Act (hereinafter “the Act”), applications for liquor licenses and beer and wine permits are filed with the local authority, which in this case is the Des Moines City Council. Iowa Code § 123.32(1) (2003). The local authority is authorized to make an initial decision whether to approve or disapprove the application. Id. § 123.32(2). The application, endorsed by the local authority as either approved or disapproved, is then forwarded to the Iowa Alcoholic Beverage Division of the Iowa Department of Commerce (hereinafter “Division”). Id. If the application is not approved by the local authority, the Division notifies the applicant of the disapproval and informs the applicant of its opportunity to appeal the decision to the administrator of the Division. Id. § 123.32(5)(a). If the application is approved by the local authority, the administrator makes any investigation it deems necessary and then affirms, reverses, or modifies the local authority’s decision. Id. § 123.32(5)(6).

The Act assigns specific application fees for liquor licenses and beer and wine permits. The local authority collects these fees. For beer permit applications, the local authority forwards a certified receipt for the fees to the Division, but retains all of the application fees for itself. Id. § 123.143(1). In contrast, the fees on liquor licenses and wine permit applications are not retained by the local authority. The local authority sends these fees to the Division and then receives a percentage of the fees back. Id. § 123.36(8). In Des Moines, the fees retained by, or remitted back, to the City are placed in the City’s general fund.

In 2003, the City of Des Moines adopted an ordinance requiring an additional “administrative fee” on applications for liquor licenses and beer and wine permits. Des Moines City Ordinance § 10-54(3) (2004). Although the City is already reimbursed for its role in the application process, the City passed this ordinance to cover its costs in processing and investigating the applications. The additional administrative fee for new permit applicants is a minimum of $420 for “on-premises” consumption permits (bars and restaurants) and a minimum of $320 for “off-premises” consumption permits (grocery stores and convenience stores). Unlike the state statutory license fee, the ordinance provides no mechanism to refund the administrative fee if the license application is not approved. See id.; Iowa Code § 123.32(6)(o).

The IGIA filed the present declaratory judgment action claiming the ordinance is illegal because the State regulation of liquor licensing under the Iowa Alcoholic Beverages Control Act preempts the imposition of additional fees. Before trial, IGIA and the City agreed upon a joint statement of facts, and then both filed motions for summary judgment. The court granted IGIA’s motion for summary judgment, and the City filed this appeal.

II. Standard of Review

When reviewing a district court’s decision to grant summary judgment, our task is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). In this case, the parties agree there is no dispute with respect to the material facts of the case; the disagreement centers on the interpretation of state law. Our role is to decide whether we agree with the district court’s application of the law to the undisputed facts before us. Therefore, our review is for correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003) (“The standard of review of a district court’s grant of summary judgment is for correction of errors at law.”).

III. Merits

A. Home Rule Authority

The City argues the ordinance is valid because, under the “Home Rule Amendment,” the City has the power to determine its own local affairs and government. In essence, the City argues it can charge the fee because the Act does not explicitly limit its right to do so.

Article III, section 38A of the Iowa Constitution provides:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.

This provision of the Iowa Constitution, known as the “Home Rule Amendment,” grants municipal corporations broad authority to regulate matters of local concern. City of Des Moines v. Gruen, 457 N.W.2d 340, 341 (Iowa 1990). However, this authority is limited by the fact that a city’s exercise of power must not “be inconsistent with the laws of the general assembly.” Iowa Const. art. III, § 38A.

“A municipal ordinance is inconsistent with a law of the general assembly and, therefore, preempted by it, when the ordinance prohibits an act permitted by statute, or permits an act prohibited by a statute.” Gruen, 457 N.W.2d at 342 (internal quotations and citations omitted). A municipal ordinance is also preempted by state law when the ordinance invades an area of law the legislature reserved to itself. Id. Stated another way, municipalities do not have authority to act if a particular power has been denied them by statute. Goodell v. Humboldt County, 575 N.W.2d 486, 492 (Iowa 1998); see also Sam F. Scheidler, Implementation of Constitutional Home Rule in Iowa, 22 Drake L.Rev. 294, 305 (1973).

The district court concluded the Act preempted the City’s authority to charge the administrative fee because the fee conflicted with the general assembly’s specific directions for governance in the area of alcoholic beverage permits. After reviewing the controlling statutes, we agree with the district court.

B. The Iowa Alcoholic Beverages Control Act

The first section of the Iowa Alcoholic Beverages Control Act establishes that the general assembly chose to reserve to itself the power to regulate the traffic of alcoholic beverages:

This chapter shall ... be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose. It is declared to be public policy that the traffic in alcoholic liquors is so affected with a public interest that it should be regulated to the extent of prohibiting all traffic in them, except as provided in this chapter.

Iowa Code § 123.1 (emphasis added). A subsequent section defining the term “local authority” also supports the conclusion that, subject to a handful of exceptions, the general assembly reserved in itself the power to regulate Iowa’s alcoholic beverage industry. Section 123.3(21) states a local authority is empowered

to approve or deny applications for retail beer or wine permits and liquor control licenses; empowered to recommend that such permits or licenses be granted and issued by the division; and empowered to take other actions reserved to them by this chapter.

(Emphasis added.) More pertinent to the case at hand, the general assembly “exclusively” reserved in itself the “power to establish [liquor] licenses and [beer and wine] permits and levy taxes as imposed in [the Act].” Id. § 123.37.

While the general assembly reserved to itself the general authority to regulate the alcoholic beverage industry in Iowa, it also gave limited regulatory powers to local authorities. For example:

Section 123.30(2) allows the local authority to refuse to issue a license or permit for premises which do not conform to applicable local laws.
Section 123.32(3) allows the local authority to “define ... licensed premises” for festivals, fairs and the like.
Section 123.32(4) allows the local authority to require an applicant’s security personnel “to be trained and certified in security methods.”
Section 123.38 allows the local authority to authorize the transfer of existing permits from one location to another, so long as the location remains within the same city or county.
Section 123.39(1) allows the local authority to suspend a license or permit “for a period not to exceed one year” or impose a civil penalty “not to exceed one thousand dollars per violation.”
Section 123.39(2) allows the local authority to “suspend any retail wine or beer permit or liquor control license for a violation of any ordinance or regulation adopted by the local authority.” It also allows local authorities to “adopt ordinances or regulations for the location of the premises of retail wine or beer and liquor control licensed establishments.”

Most important to the present case, the general assembly gave local authorities the authority to adopt ordinances which govern “any other activities or matters which may affect the retail sale and consumption of beer, wine, and alcoholic liquor and the health, welfare and morals of the community involved.” Id. § 128.39(2). The general assembly limited this authority to ordinances “not in conflict with” the Act and ordinances “that do not diminish the hours during which beer, wine, or alcoholic beverages may be sold or consumed at retail.” Id. While we attempt to interpret statutes and ordinances in a manner so as to render them harmonious, Green v. City of Cascade, 231 N.W.2d 882, 890 (Iowa 1975), and presume municipal ordinances are valid, Dilley v. City of Des Moines, 247 N.W.2d 187, 190 (Iowa 1976), we simply cannot avoid the following conflicts between the Act and the ordinance.

1. Transfer Fees

One patent inconsistency between the statutory process set forth by the ordinance and the process set forth by the Act relates to permit transfer fees. Under the current ordinance, an existing permittee or licensee seeking to transfer the permit or license to a different location within the jurisdiction of the city is required to pay an administrative fee ranging from $215 to $315. This fee is subject to change by resolution of the City Council.

In contrast, Iowa Code section 123.38 states:

The administrator [of the Iowa Alcoholic Beverages Division] may by rule establish a uniform transfer fee to be assessed by all local authorities upon licensees or permittees to cover the administrative costs of such transfers, such fee to be retained by the local authority involved.

(Emphasis added.) The Act does not give local authorities the power to establish a transfer fee. Instead the general assembly has, under its exclusive right to “establish licenses and [alcoholic beverage] permits,” assigned the power to establish transfer fees to the administrator. The City usurps this power by establishing its own transfer fees.

In addition, the City’s mechanism for setting the amount of the transfer fee does not assure uniformity- within the state. Under the ordinance, the City Council can set its own fees for transfer requests without any regard for a fee established by the administrator.

Beyond the irreconcilable conflict pertaining to transfer fees, we also find inherent conflicts between the fee collection procedures established in the Act and those set forth in the ordinance.

2. Compliance with Existing Statutory Procedure

Iowa Code section 364.6 states a city must “substantially comply with a procedure established by a state law for exercising a city power.” See also Iowa Code § 331.301(5) (stating same requirement for counties). For the reasons discussed below, we find the application of the disputed ordinance results in a procedure which does not substantially comply with, and therefore conflicts with the procedures established by state law.

i. Uniformity

The size of the statutory application fee for a particular applicant is based upon a myriad of factors. The application fee varies according to whether the applicant is located within corporate city limits, the type of applicant, the population of the city, the type of alcoholic beverage, and whether the alcoholic beverages are sold on Sundays. See, e.g., id. §§ 123.36, .134, .179. The only other fee addressed by the legislature pertaining to alcoholic beverage permits is the license transfer fee. As discussed above, only the Division administrator has the power to set this fee, and the administrator must set this fee so that it is “uniform” for all local authorities. Id. § 123.38.

One effect of a uniform statutory application fee system is that it keeps local authorities from using license or permit application fees to curtail liquor establishments within their jurisdiction. Without a uniform application fee system, a local authority could charge a large application fee to discourage new liquor permit applicants or to discourage renewals of existing permits. For example, under the guidelines set forth by the general assembly, an applicant planning to open a liquor establishment in the greater Des Moines area would pay the same application fee in the City of Des Moines or in the nearby city of Urbandale. The cost of applying for such a permit (and the cost of reapplying for subsequent permits) would not factor into the proprietor’s decision of where to locate its business. However, if local authorities were allowed to set their own license application fees, then one city could raise its application fees and push liquor establishments into a nearby jurisdiction.

The imposition of additional “administrative fees” would circumvent the established procedure. The benefit of a standardized application fee would be lost because each local authority would be able to discourage the proliferation of liquor establishments based on administrative fees, rather than application fees. For this reason we find the disputed ordinance disturbs, and does not substantially comply with, the uniformity so meticulously established by the Act.

ii. Existing Repayment Mechanism

Normally, a municipal corporation can, as a home rule entity, impose license fees, permit fees, or franchise fees to cover the cost of “inspecting, licensing, supervising, or otherwise regulating” activities related to the exercise of its police power. Home Builders Ass’n v. City of West Des Moines, 644 N.W.2d 339, 347 (Iowa 2002). However, in the present case, an “additional administrative fee” is not appropriate because the City already receives compensation for these costs. Not only is the City already compensated for its role in the application process, but the City, with its large population, is compensated more for its application review process than other smaller cities or rural counties. The fact that the statutory fee schedule assures local authorities in larger cities larger application fees than local authorities in smaller cities or rural counties leads us to the conclusion that the general assembly appreciated and accounted for any additional costs involved in investigating and processing applications in larger cities.

iii. Additional Requirement

By adding extra fees, the City has increased its role in the licensing system — • if the applicant does not pay the City its additional administrative fee, the City will not forward the application on to the Division. This extra hurdle violates the application procedure established by the Act. See generally Richards v. City of Pontiac, 305 Mich. 666, 9 N.W.2d 885, 888 (1943) (finding conflict where a city imposed a licensing fee for trailer camps when the State had already entered the field and imposed a similar licensing fee).

The City argues this extra hurdle does not conflict with the Act. The City contends the present ordinance is analogous to an ordinance which survived a preemption challenge in the court of appeals. Drawing on language from BeeRite Tire Disposal/Recycling, Inc. v. City of Rhodes, 646 N.W.2d 857, 860 (Iowa Ct.App.2002), the City claims its administrative fee further promotes the underlying policy of the Act “with greater force” and “merely” increased “the details of the existing regulation.” '

In BeeRite, the city of Rhodes passed an ordinance regulating the disposal of old tires. 646 N.W.2d at 858. This ordinance imposed, among other things, a $100 annual permit fee payable to the city on top of the existing $850 state fee payable to the Department of Natural Resources. Id. The court of appeals compared the legislative agenda to “regulate the regulation of tire disposal” with our decision in Goodell v. Humboldt County, where we considered the legislative agenda regarding livestock confinement. Id. at 860-61 (citing Goodell, 575 N.W.2d at 503-07). Noting there was a “clear legislative purpose to issue regulations intending to limit local over-regulation in the area of livestock confinement,” the court of appeals concluded there was no similar legislative agenda to regulate the regulation of tire disposal. Id. at 861. Unlike the livestock confinement regulations in Goodell, there was “no statutory scheme which would be either bypassed, contradicted, or overridden by the City of Rhodes’s tire disposal regulations.” Id. at 860. Because there was less need for uniform state regulations for tire disposal than there was for livestock confinement waste, the court of appeals concluded the Rhodes ordinance did not “unduly modify the tire disposal statutory scheme established by the State” and did not “stand in opposition to regulations promulgated by the Iowa Legislature.” See id. at 860-61.

Without determining the validity of the distinction made by the court of appeals in BeeRite, we are confident the same conclusion cannot be drawn here. The general assembly’s footprint covers the area of alcoholic beverage permits. The general assembly limits the ability of local authorities to regulate alcoholic beverages and “exclusively” reserves in itself the power to establish beer permits, wine permits, and liquor licenses. See Iowa Code §§ 123.1, .3(21), .37. In addition, the City’s administrative fee disrupts the uniformity in the statutory scheme.

The ordinance does more than merely increase the details of regulation.

iv. Accountability

The Act outlines procedures for local authorities to collect the “necessary fee” prescribed by statute and to either forward that fee on to the alcoholic beverage division or to keep the fee and submit a receipt to the Division. See id. § 123.32(2). Either way, the local authority is required to report any funds received with the application. See id. §§ 123.32(2), .36(8), .143. Under the Des Moines ordinance, the City does not have to account to the Division for the total amount collected for the application. It only accounts for the fees collected under the statutory guidelines. This violates the established procedure and frustrates the general assembly’s intent to monitor the flow of funds from license/permit applicants to local authorities.

IV. Conclusion

The general assembly has established a comprehensive and uniform procedure for controlling the fees surrounding the issuance and transfer of alcoholic beverage permits or licenses. This procedure clearly defines the local authority’s role in the application process and compensates the local authority for its responsibilities. The Des Moines ordinance conflicts with this statutory scheme. We therefore affirm the district court’s decision to declare the ordinance invalid.

AFFIRMED.

      . In 1794, President Washington mobilized an army of approximately 15,000 to suppress an uprising of Pennsylvania farmers angered by an excise tax imposed by the federal government on whiskey. See generally Jason Mazzone, The Security Constitution, 53 UCLA L.Rev. 29, 109-112 (2005).

      . The local authority is not compensated for every type of application, but it does receive varying amounts of compensation based upon the type of application. For example, the local authority keeps all fees it collects for beer permit applications. Iowa Code § 123.143(1). For Class A, B, and C liquor licenses the local authority receives 65% of the application fee. Id. § 123.36(8). The State keeps all fees for temporary or seasonal licenses, Class A and B wine permits, and Class D and E liquor licenses. See id. §§ 123.36, .143, .179.

      . For example, the application fee for a Class B liquor license in a city of 10,000 or more people is $1300. The fee for the same permit in a city with a population of 3000 or less is only $800. Iowa Code § 123.36(3). The local authority receives 65% of this application fee. Id. § 123.36(8).

      . Iowa Code section 123.18 expressly prohibits a "person responsible for the administra-lion or enforcement of this chapter” from accepting or soliciting donations, gratuities, political advertising, gifts, or other favors from any applicant.


author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Ronald F. WALKER, Respondent.
    No. 05-1989.
    Supreme Court of Iowa.
    April 14, 2006.
    Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.

      Ronald F. Walker, Knoxville, pro se.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Ronald F. Walker violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers (Code). Walker acknowledged if the matter proceeded to evidentiary hearing before the Grievance Commission (Commission), he could not successfully defend against the charges. The parties agreed to submit the matter to the Commission upon a stipulation in lieu of an evidentiary hearing. The Board and Walker stipulated to the facts of the complaint, to certain violations of the Code, and to a recommendation of a four-month suspension of Walker’s license to practice law in Iowa with conditions for reinstatement of his license.

The Commission filed its report finding the Board had proved the factual allegations of the complaint as well as violations of the Code by a convincing preponderance of the evidence. The Commission recommended that we suspend Walker’s license to practice law indefinitely with no possibility of reinstatement for four months. The Commission further recommended that, as a condition of reinstatement of his license, Walker prove he received successful treatment for his depression and after reinstatement provide semi-annual verifications he is complying with any treatment for his depression as recommended by his physician.

I. Scope of Review.

The record made before the Commission is reviewed de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). We require the Board to prove any ethical violations by a convincing preponderance of the evidence. Id. Although we consider the Commission’s factual findings and discipline recommendations, they do not bind us. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004).

II. Factual Findings.

The stipulation of the parties causes us to find Walker neglected three separate estate matters. In the first estate matter, the clerk of court issued six delinquency notices over a four-year period. The clerk issued eleven delinquency notices over an eleven-year period in the second estate matter. Finally, in the third estate matter, the clerk issued seven delinquency notices over a four-year period. In each of the estate matters, Walker filed his final report representing to the court he complied with all the statutory requirements pertaining to the state and federal tax laws, when in fact he had not complied with all those requirements at the time he made those representations. Walker’s neglect caused one of the estates to be assessed a penalty and interest on the Iowa inheritance/estate tax. Walker did make restitution for the penalty and interest. The district court eventually removed Walker as attorney for each estate.

The Board received a complaint regarding Walker’s conduct in the three estate matters. The Board sent Walker a copy of the complaint and a letter requesting a response by certified mail. Walker signed for the receipt of the items but failed to respond to the complaint. The Board sent a second letter to Walker by certified mail informing him of the consequences of failing to respond. Walker signed for the receipt of the second letter but still failed to respond to the complaint.

In another matter, a client retained Walker for the purposes of preparing a contract, preparing a deed, and updating the abstract in connection with the transaction. In February 2002, the client signed the contract and the deed. Walker then undertook to record the contract and the deed at the Marion County courthouse and update the abstract. Over the next several months, the client repeatedly checked with Walker about the status of the recording. Walker represented to the client that he would file the contract and the deed or that he had filed them, when in fact the contract and the deed were not filed. In April 2003, the client learned Walker had still not recorded the contract and the deed.

Walker acknowledged and we agree his conduct in these matters violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law); DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); DR 7-101(A)(l) (providing a lawyer shall not intentionally fail to seek the lawful objectives of a client); DR 7-101(A)(2) (providing a lawyer shall not intentionally fail to carry out a contract of employment); and DR 7-101(A)(3) (providing a lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship).

III. Sanction.

In determining the sanctions a lawyer must face due to his or her misconduct, we have stated:

The goal of the Code of Professional Responsibility is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” When deciding on an appropriate sanction for an attorney’s misconduct, we consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.” We also consider aggravating and mitigating circumstances present in the disciplinary action.

Honken, 688 N.W.2d at 820 (alteration in original) (citations omitted). In this case, Walker’s conduct consisted of neglecting clients’ legal matters, making misrepresentations to the court and a client, and failing to respond to the Board.

While neglect alone ordinarily deserves a sanction ranging from a public reprimand to a six-month suspension, neglect compounded by other misconduct requires us to impose a more severe sanction than when neglect is the only violation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553-54 (Iowa 2004); see, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 124, 126 (Iowa 2003) (finding an attorney’s failure to comply with a court order, neglect of client matters, and failure to cooperate with the Board warranted a one-year suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 374, 376 (Iowa 2002) (finding an attorney’s commission of a criminal act, making of a false statement to the Board, and neglect of client matters warranted a one-year suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 91, 93 (Iowa 2001) (finding an attorney’s neglect of two estates, forgery of clients’ signatures, falsification of a court document, misrepresentations to clients, and failure to respond to the Board’s inquiries warranted a six-month suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 653, 657 (Iowa 2001) (finding an attorney’s neglect of two clients’ legal matters as well as his misrepresentations to the court and his clients as to the status of those matters- warranted a four-month suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 613 N.W.2d 656, 657 (Iowa 2000) (finding an attorney’s neglect of client matters, disregard of the Board’s inquiries, and failure to maintain proper record keeping warranted a one-year suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 586 N.W.2d 523, 526 (Iowa 1998) (finding an attorney’s consistent pattern of neglect of client matters and his numerous misrepresentations made to cover up his neglect warranted a six-month suspension); Comm. on Prof'l Ethics & Conduct v. Horn, 379 N.W.2d 6, 9-10 (Iowa 1985) (finding an attorney’s failure to cooperate with the committee, neglect of a matter entrusted to him, and misrepresentations regarding the matter warranted a three-month suspension).

The aggravating factors to consider here include multiple incidents of neglect. Moorman, 683 N.W.2d at 553. Walker’s various actions throughout his handling of the four separate legal matters demonstrate that neither his neglect nor his misrepresentations were isolated in nature. Moreover, Walker’s misrepresentations are not only a breach of professional ethics in themselves but also serve to exacerbate his negligence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 578 (Iowa 2002) (stating a lawyer’s violation of a disciplinary rule is aggravated by a misrepresentation to the court). Additionally, Walker’s failure to respond to the Board on two occasions “reflects adversely on his general fitness to practice law and is an additional factor in imposing discipline.” Moorman, 683 N.W.2d at 553-54. Finally, it is significant that Walker’s actions caused harm to others in terms of cost and delay to his clients. Honken, 688 N.W.2d at 821.

On the other hand, there may be some mitigating factors present in this case. Walker is apparently suffering from depression. We have recognized depression may influence our approach to discipline, but we consider it “a personal problem of the lawyer that does not excuse the misconduct.” Id. at 821-22. Also, it is important to note that Walker apparently has not had any prior disciplinary problems. See Comm. on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991) (stating prior disciplinary action taken against a lawyer is considered in determining the proper discipline). However, the multiple violations and the continual nature of the incidents dilute this factor. Moonen, 706 N.W.2d at 402.

IV. Disposition.

In light of the above facts and circumstances surrounding Walker’s conduct, we suspend Walker’s license to practice law in this state indefinitely with no possibility of reinstatement for six months. Upon any application for reinstatement, Walker must establish he has not practiced law during the suspension period and he has in all ways complied with the requirements of Iowa Court Rule 35.13. In his application for reinstatement, Walker must provide this court with an evaluation by a licensed health care professional verifying his fitness to practice law. Before obtaining this evaluation, Walker shall submit to the Board the name of the proposed evaluator and the nature of the evaluation for the Board’s prior approval. Walker must also comply with the notification requirements of Iowa Court Rule 35.21. Finally, the costs of this action are taxed against Walker pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


author: LAVORATO, Chief Justice.

text:
    Valentino MAGHEE, Appellant, v. IOWA DISTRICT COURT JUDGE, Linda READE, Appellee.
    No. 03-0841.
    Supreme Court of Iowa.
    April 21, 2006.
    Philip B. Mears of Mears Law Office, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellee.
   LAVORATO, Chief Justice.

Valentino Maghee appeals from a penalty order of the district court in which a portion of his earned time credit as an inmate of the Anamosa State Penitentiary was ordered deducted from his total earned time credit because he filed a frivolous lawsuit. He contends he was denied due process under the Fourteenth Amendment to the Federal Constitution because he was denied appointment of counsel at state expense during the penalty hearing. He also contends the order should be set aside because it was disproportionate to the offense. We reject both contentions and affirm.

I. Background Facts and Proceedings.

A. Underlying proceeding. On December 4, 1996, Maghee filed a “complaint” in the district court against Des Moines officials, alleging the illegal seizure of his property and malicious prosecution to cover up official misconduct. He alleged these actions occurred in December 1991 and May 1994.

On December 19 the Des Moines officials filed a motion to dismiss the complaint on the grounds that the action was barred by the statute of limitations pursuant to Iowa Code section 614.1(1) (1995) (one-year statute of limitations for actions to enforce the payment of a penalty or forfeiture under an ordinance). District judge Linda Reade set the motion for hearing on January 27, 1997. (Judge Reade is now a federal district court judge.) Before the hearing, Maghee filed a resistance in which he alleged that Iowa Code section 614.1(4) (five-year statute of limitations for actions founded on unwritten contracts, injuries to property, fraud, and other actions not otherwise provided for except as provided by subsections 8 and 10) applied.

Maghee failed to appear, either personally or by telephone, for the January 27 hearing, which was set for 8:30 a.m. (Ma-ghee was incarcerated at the time.) He did however file a motion for continuance, which was time-stamped by the clerk at 2:27 p.m. on January 27. In his motion, Maghee alleged that he was unable to secure prison telephone privileges on January 27 and that he was not able to obtain possession of his legal files that were in the possession of prison officials. At 4:04 p.m. on January 27, Judge Reade granted the defendants’ motion to dismiss on the grounds that Maghee’s action was barred by the statute of limitations pursuant to Iowa Code section 614.1(2) (two-year statute of limitations for actions founded on injuries to person or reputation).

After Judge Reade dismissed Maghee’s action, Maghee filed on February 3 a motion for reconsideration of the order dismissing his action, and in that motion he also asked the court to add additional defendants. In support of his motion, Ma-ghee again alleged that the correct statute of limitations was section 614.1(4) and that Judge Reade had erred in applying section 614.1(2). Judge Reade denied Maghee’s previous motion to continue, the motion to reconsider, and the motion to add additional defendants. That ruling, however, did not deter Maghee from again filing a motion to add additional defendants, a motion that Judge Reade also denied.

On December 7 Maghee filed a motion to vacate Judge Reade’s ruling on the motion to dismiss pursuant to Iowa Rule of Civil Procedure 252(e) (now rule 1.1012(5)) on the grounds that he was prevented from participating in the January 27 hearing because he was in solitary lock-up. He further alleged that prison officials withheld and denied him access to his legal papers. District judge Robert Wilson, who has since that time resigned, denied the motion.

On February 16, 1998, Maghee filed a motion to set aside the ruling on the motion to dismiss pursuant to Iowa Rule of Civil Procedure 179(b) (now rule 1.904(2)) and rule 1.1012(5), alleging the same grounds he urged in his December 7, 1997 motion. On February 16,1998, Judge Wilson denied the motion, following which, on February 27 Maghee filed a motion to enlarge findings pursuant to rule 1.904(2), a motion to recuse Judge Reade and Judge Wilson, a demand for hearing, and another motion for continuance of the January 27, 1997 hearing. On October 8, 1998, Ma-ghee filed a motion for summary judgment, a motion to allow him to proceed with his action pursuant to the First, Fourth, and Fourteenth Amendments to the United States Constitution, a demand for hearing, and a motion to add additional defendants. On November 12 Judge Wilson denied all of Maghee’s outstanding motions and instructed the clerk of court to close the file and refuse any further filings in the case.

B. Present proceedings. On May 6, 1999, Maghee filed the present action against Judge Reade, alleging that the Des Moines officials in the underlying action recruited Judge Reade and the Iowa Department of Corrections officials in their conspiracy and wrongdoing to cover up and continue their misconduct of illegally seizing his property. Maghee further alleged that Judge Reade never answered his motion to continue in violation of Iowa Rule of Civil Procedure 117(c) (now rule 1.455) and in violation of his First Amendment right of access to the courts and in violation of his Fourteenth Amendment right to due process and equal protection. Maghee also alleged that Judge Reade failed to rule on his motion for summary judgment that he filed on January 7, 1997. In addition, Maghee alleged that despite section 614.1(4), Judge Reade in furtherance of the conspiracy ruled in favor of the Des Moines officials by making false rulings that the Iowa statute of limitations for injury to property was two years and not the correct law of five years.

For relief, Maghee asked the court to issue (1) a declaratory judgment that Judge Reade violated his First and Fourteenth Amendment rights and (2) an injunction ordering Judge Reade to rule on his January 7, 1997 motion for continuance. He also asked for attorney fees and court costs.

On April 26, 2000, district judge Richard Blane II filed an order of dismissal pursuant to Iowa Code section 610A.2(l)(b) (1999). In the order, Judge Blane in a thorough analysis found that Maghee’s current cause of action was frivolous and malicious as defined in Iowa Code section 610A.2.

In the dismissal order, Judge Blane set a hearing for June 8, 2000 to determine whether the court should enter an order imposing penalties under section 610A.3(l)(a) (loss of good conduct time credits) or (6) (deduction from prisoner’s account). Further, the judge ordered a representative of the attorney general’s office to appear at the hearing to present evidence on the penalty issue and appointed an attorney to represent Maghee at state expense because of the constitutional ramifications of Maghee’s loss of good conduct time credits. Finally, the judge ordered the Iowa Department of Corrections to provide the court a record of Maghee’s good conduct time credits and the balance of Maghee’s prison account and ordered the Polk County Sheriff to transport Ma-ghee to the Polk County Courthouse for the hearing.

Judge Blane entered an order continuing the June 8 hearing pending the outcome of Maghee’s postconviction relief application. Because of the delay in trying the postconviction relief action, Judge Blane on August 6, 2002 set a scheduling conference for August 23. In the same order the judge appointed Maghee new counsel. On August 23 the judge set the penalty hearing for April 1, 2003. On the same day — August 23 — the judge relieved Maghee’s new counsel of his obligation to represent Maghee for two reasons. First, the State Public Defender’s office advised the attorney it would not authorize payment for the attorney’s services. Second, the judge noted that this court in Maghee v. State, 639 N.W.2d 28 (Iowa 2002), held that a prison inmate challenging loss of good conduct time credit in a prison disciplinary hearing was not constitutionally entitled to appointed counsel at state expense.

On April 1, 2003, district judge Paul Huscher presided at the penalty hearing at which an assistant attorney general appeared as well as Maghee, who represented himself. During the hearing, the judge engaged the parties in a discussion of the amount of earned time credit that could be taken in a prison disciplinary matter and what the district court is empowered to do pursuant to Iowa Code chapter 610A (2003). (As of January 1, 2001, the designation “good conduct time” was changed to “earned time credit.”) The judge asked Maghee whether there was any reduction of earned time credit that would discourage him from making further filings in the case that had been closed and was never appealed. Maghee never gave an answer but continued to maintain his right to challenge an improper ruling.

Judge Huscher stated that he believed Maghee had no intention of abiding by the rules or procedures of the court. The court continued:

I would be inclined and could easily find that taking every day of good time that you have would be insufficient as a sanction in this matter but would be appropriate. On the other hand, it seems to me that the time of the sanction and the amount of good time available to be taken legitimately should be the amount that was, at least as best as we can determine, the amount that you would have had available at the time of the finding of the violation and at the time of your conduct. It appears that that amounts to about 2000 days.

Following the hearing, Judge Huscher on April 2 entered an order that sanctioned Maghee for his frivolous and malicious filings with the loss of 2000 days of earned time credit. See Iowa Code § 610A.3(l)(a). The order directed the warden of Maghee’s correctional institution to reduce Maghee’s total earned time credits by 2000 days.

On April 14 attorney Philip B. Mears filed his appearance on behalf of Maghee, a motion to expand Judge Huscher’s findings, and a motion for the appointment of counsel at state expense. In the motion, counsel contended that the loss of earned time credit is akin to a civil contempt and requires appointment of counsel at state expense. Counsel also asked the court to address the disparity in sanctions between Maghee’s penalty and the penalties customarily handed down in prison disciplinary proceedings.

On April 21 Judge Huscher denied the motion following which Maghee appealed. On July 11 this court entered an order directing the district court to rule on Ma-ghee’s request for appointment of counsel and for preparation of a transcript, both at state expense. Judge Blane denied the motion and thereafter denied Maghee’s motion to reconsider.

On March 3, 2004, this court entered an order in response to Maghee’s pro se request for appointment of counsel. The court appointed Mears to represent Ma-ghee on appeal pursuant to Iowa Code section 815.10 and directed the court reporter to prepare any transcripts ordered by Mears for use in this appeal.

II. Issues.

This appeal presents two issues: (1) whether there is a constitutional right to appointment of counsel at state expense in Iowa Code section 610A.3 proceedings, and (2) whether the sanction in this case, loss of 2000 days of earned time credit, should be set aside.

III. Constitutional Right to Appointed Counsel at State Expense.

Maghee contends he has a federal due process right under the Fourteenth Amendment to the appointment of counsel at state expense in this penalty proceeding under Iowa Code section 610A.3. He likens the procedure under section 610A.3 to civil contempt and argues that indigent persons who face imprisonment in a civil contempt proceeding are provided counsel at state expense, as we held in McNabb v. Osmundson, 315 N.W.2d 9, 10, 14 (Iowa 1982). In that case, this court held that McNabb was entitled to counsel under the Due Process Clause of the Fourteenth Amendment to the United States Constitution in a contempt hearing that resulted in his incarceration and would be entitled to counsel in any subsequent hearing if the hearing would result in the loss of his physical liberty. McNabb, 315 N.W.2d at 11, 14.

In contrast, the State contends that loss of earned time credit does not actually extend the inmate’s sentence but only changes the potential for the amount of time that an inmate may serve. Given this fact, the State argues that the section 610A.3 penalty proceeding in which the inmate is facing the loss of earned time credit is more like a prison disciplinary proceeding than a civil contempt action because the inmate is already incarcerated and therefore is not facing the loss of liberty. Because an inmate is not entitled to appointment of counsel at state expense in the disciplinary proceeding, as this court held in Maghee v. State, 639 N.W.2d at 30-31, the State argues that a similar procedure used to take away earned time credit based upon frivolous litigation does not require appointment of counsel at state expense. For reasons that follow, we think the State has the better argument.

Because a constitutional issue is raised, our review is de novo. James v. State, 541 N.W.2d 864, 869-70 (Iowa 1995).

A. Applicable law. We begin with the applicable statutes in this proceeding. Iowa Code chapter 610A is entitled “Civil Litigation by Inmates and Prisoners.” As applied to this case, Iowa Code section 610A.2(1)(6) allows the court to dismiss a civil action filed by an inmate or prisoner when the action is frivolous or malicious in whole or in part. Iowa Code section 610A.2(2) permits the court to consider several factors in determining whether an action is frivolous or malicious. Judge Blane found that four of the six factors listed in section 610A.2(2) applied to Ma-ghee’s action against Judge Reade: (1) the action was without substantial justification, see Iowa Code § 610A.2(2)(a); (2) the action was intended solely or primarily for harassment, see id. § 610A.2(2)(c); (3) the action was without evidentiary support, see id. § 610A.2(2)(d); and (4) the action was asserted with an improper purpose, including but not limited to, harassing an opponent, see id. § 610A.2(2)(e).

If the court finds the inmate has filed a frivolous civil action, the court may dismiss the action, see id. § 610A.2, as Judge Blane did here. If the court dismisses the action, the inmate is subject to penalties pursuant to Iowa Code section 610A.3. The penalties include loss of some or all of the inmate’s earned time credits. Id. § 610A.3(l)(a). If the prisoner has no earned time credits to deduct, the court may deduct up to fifty percent of the average balance of the inmate account. Id. § 610A.3(1)(5). Here, as mentioned, Judge Huscher ordered a deduction of 2000 days of Maghee’s earned time credits.

Apparently, chapter 610A is the legislature’s attempt to deter inmates and prisoners from filing frivolous lawsuits. Iowa is not alone in this attempt. See 28 U.S.C.A. § 1932 (West Supp.2005) (loss of earned good time credit for inmates in federal correctional facilities for frivolous civil litigation); Lynn S. Branham, Of Mice and Prisoners: The Constitutionality of Extending Prisoners’ Confinement for Filing Frivolous Lawsuits, 75 S. Cal. L.Rev. 1021, 1031 (2002) (pointing out that twelve states permit the extension of a prisoner’s incarceration, generally through revocation of good time credits, for filing a frivolous lawsuit).

B. Analysis. We turn now to Maghee’s federal due process claim. The Fourteenth Amendment to the Federal Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To establish a due process violation, an inmate must first establish that the inmate has a liberty interest of constitutional dimension. See Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813, 823 (1983); Sanford v. Manternach, 601 N.W.2d 360, 364 (Iowa 1999).

When a state has created a right to good conduct time, that right is embraced within the liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951 (1974). Iowa’s law providing for earned time credits creates a liberty interest. Sanford, 601 N.W.2d at 368; see also Iowa Code § 903A.2. Before January 1, 2001, inmates earned “good conduct” time amounting to day for day credit in the reduction of the inmate’s sentence. See Iowa Code § 903A.2(1)(a) (1999). In addition, the inmate could earn bonus credit for work, treatment, or education amounting up to five days per month in reduction of the inmate’s sentence. See id. § 903A.2(l)(a)(l)-(5). This changed into a single unified credit called “earned time” credit. 2000 Iowa Acts ch. 1173, § 4 (codified at Iowa Code § 903A.2 (2001)). As mentioned, the change became effective January 1, 2001 and applied to all inmates even if they were already in the prison system. See 2000 Iowa Acts ch. 1173, §§ 9-10. Up until January 1, 2001, Maghee therefore earned good conduct time plus bonus credit if he was working or participating in a treatment or educational program. After that date, he accrued earned time credits. (For the balance of this opinion, we will refer to both as “earned time credit.”) In any event, Maghee has a liberty interest in his earned time credits, which affects the duration of his sentence.

As mentioned, the earned time credit is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The degree of an inmate’s interest in personal liberty, however, is less than the degree of interest in personal liberty possessed by one facing probation or parole revocation or one facing jail in a civil contempt action. For example, the immediate personal liberty of an inmate involved in a prison disciplinary proceeding is not threatened because, as the State points out, the inmate is already incarcerated. In contrast, a parolee facing parole revocation, a probationer facing probation revocation, and a respondent in a civil contempt action facing jail are all subject to an immediate threat to their personal liberty. This difference was underscored in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, a case in which inmates of a state prison brought a civil rights action against a state parole board alleging due process violations in the board’s consideration of the inmates’ suitability for parole:

The fallacy in respondents’ position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could “be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life.” The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.

442 U.S. 1, 9, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 676-77 (1979) (alteration in original) (citation omitted).

Significantly, in Morrissey the Court held that revocation of parole is not part of a criminal prosecution and for that reason the full panoply of rights due a defendant in a criminal prosecution does not apply to parole revocation. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). The Court also recognized that “[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id. However, the Court considered the loss of this conditional liberty a grievous one requiring that the parolee be accorded due process. Id. at 482, 92 S.Ct. at 2601, 33 L.Ed.2d at 495. The Court then detailed the minimum requirements of due process for parole revocation, including but not limited to, notice of the claimed violations of parole and an opportunity to be heard at two hearings. Id. at 484-89, 92 S.Ct. at 2602-04, 33 L.Ed.2d at 496-99. The two hearings referred to include (1) a preliminary hearing at the time of the parolee’s arrest and detention to determine whether there is probable cause to believe that the parolee has committed a violation of his parole and (2) if a probable cause finding is made, a revocation hearing to determine whether the facts show that a violation occurred and that revocation of parole is warranted. Id. at 485-88, 92 S.Ct. at 2602-04, 33 L.Ed.2d at 496-98.

The Court in Morrissey left open the question whether the parolee is entitled to the assistance of retained counsel or appointed counsel at the two hearings. Id. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. One year later, in Gagnon v. Scarpelli, the Court answered the question as to appointed counsel in the context of a probation revocation. 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Recognizing that probation revocation, like parole revocation, is not a stage of a criminal prosecution, the Court held that a probationer would be entitled to the same minimum due process rights accorded a parolee in a parole revocation. Id. at 782, 93 S.Ct. at 1759-60, 36 L.Ed.2d at 661-62. Given the critical differences between criminal trials and probation or parole revocation hearings, the Court opted for a due process requirement of appointed counsel at state expense on a case-by-case basis:

We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.

Id. at 790, 93 S.Ct. at 1763, 36 L.Ed.2d at 666.

Although the Court in Gagnon refused to adopt precise and detailed guidelines for courts to follow in determining whether to appoint counsel at state expense, it did provide some guidance:

The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

Id. at 790-91, 93 S.Ct. at 1764, 36 L.Ed.2d at 666-67; accord Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 795-96 (Iowa 2004).

A hearing to determine penalties applicable under Iowa Code section 610A.3 is more akin to a disciplinary hearing involving loss of earned time credits than to a parole or probation revocation hearing. The legislature in passing section 610A.3 underscored this similarity by allowing the court to enter an order deducting the earned time credits or allowing the credits to be deducted pursuant to a disciplinary hearing under Iowa Code chapter 903A at the facility where the inmate is held. See Iowa Code § 610A.3(2) (2003).

Iowa Code section 903A.3(1) further emphasizes the similarity:

Upon finding that an inmate has violated an institutional rule, or has had an action or appeal dismissed under section 610A2, the independent administrative law judge may order forfeiture of any or all earned time accrued and not forfeited up to the date of the violation by the inmate and may order forfeiture of any or all earned time accrued and not forfeited up to the date the action or appeal is dismissed, unless the court entered such an order under section 610A.S.

Id. § 903A.3(1) (emphasis added). Again, this provision makes clear that the inmate may be penalized for the inmate’s actions in violation of section 610A.2 either in a court proceeding or a disciplinary proceeding at the correctional facility. The difference relates to the limit the statute places on the amount of accrued earned time that an administrative law judge can order forfeited. No such limit is placed on a district judge.

As with the disciplinary hearing, what is at stake in a section 610A.3 penalty hearing is loss of earned time, a liberty interest that does not rise to the level of importance that Morrissey; Gagnon, and Green-holtz attribute to the liberty interest a parolee and probationer possess and that McNabb attributes to one facing jail time in a contempt action. Because there is no due process requirement for appointment of counsel at state expense in a disciplinary hearing, we similarly hold there is no due process requirement for appointment of counsel at state expense in a section 610A.3 penalty proceeding.

That brings us to Maghee’s contention that the loss of earned time should be set aside.

IV. Propriety of the Sanction.

Maghee contends, as he did at the penalty hearing, that the court-ordered sanction amounting to a loss of 2000 days of earned time credits was too severe because it was disproportionate to the offense. For that reason, he argues we should set aside the sanction.

As mentioned, Iowa Code section 610A.3(l)(a) allows the district court to impose as a sanction for filing frivolous civil actions “[t]he loss of some or all of the earned time credits acquired by the inmate.” (Emphasis added.) Because this provision does not mandate a set penalty, the sanction must rest in the discretion of the district court. Cf. Harpster v. State, 569 N.W.2d 594, 598 (Iowa 1997) (“In criminal cases, sentences are upheld on review unless the judge exercised his discretion on grounds or for reasons clearly untenable or unreasonable. When a sentence is not mandated, a trial court must exercise discretion in determining the sentence to be imposed.” (Citations omitted.)). Maghee must therefore show an abuse of discretion to warrant our setting aside the sanction.

As mentioned, Maghee’s only complaint at the hearing was that the sanction was disproportionate to the offense. Maghee offered no evidence as to what sanctions are actually imposed for other offenses. So there is in this record no basis for comparison to support Maghee’s contention. Moreover, the loss of earned time credits here was within the “some or all” authority of section 610A.3(l)(u). Finally, Judge Huscher recognized he could have ordered forfeited all of Maghee’s earned time credits but exercised his discretion not to do so. We conclude Maghee has failed to show an abuse of discretion.

V. Disposition.

In sum, we hold Maghee is not entitled to appointed counsel at state expense. In addition, Maghee has failed to show that the district court abused its discretion in ordering a deduction of 2000 days of earned time credits for filing a frivolous civil action. We therefore affirm.

AFFIRMED.