(dissenting).
I respectfully dissent.
The majority decides this case on the basis that an alleged child abuser has no right to clear his name, only a “privilege.” That “privilege,” not coextensive with rights granted the State as prosecutor, according to the majority, is merely a procedure designed to prompt an evidentiary hearing. Because of the odious nature of child abuse, numerous reasons are cited why the already presumed guilty person is not given the same opportunity for a hearing as is the department of human services. These reasons are that (1) Reynolds failed to follow the statute by asking for a hearing within six months; (2) Reynolds failed to try to assert a right not granted by the statute but not denied either, i.e., to defer his hearing until conclusion of the juvenile proceedings; and (3) Reynolds failed to appeal the denial of the request he failed to make, although no appeal right is mentioned in the statute. With so many failures to preserve error, little prejudice on the merits could be found by the majority.
The majority decides that since Reynolds did not have a hearing in six months, the allegation thus hardened into a founded child abuse listing supported by a preponderance of the evidence. As such, giving Reynolds more time to have a hearing on what had become fact would be of questionable value. Thus, has the majority transmuted a statutory right to a “privilege” that when not timely exercised by an accused converts accusations to findings of fact.
With the heavy emphasis by the majority on the procedural non acts of Reynolds, one might forget what he did ask for and never got. A hearing to try to clear his name, he could not have. The agency could delay a hearing until conclusion of a pending juvenile or district court case relat*817ing to the information or findings but the accused could not. No rational reason is suggested for giving this right to the agency sitting as investigator, accuser, judge and jury while denying it to the accused.
The equal protection analysis in our recent decision Shortridge v. State, 478 N.W.2d 613, 615 (Iowa 1991), applies in this case. In Shortridge, we struck down a legislative amendment to a postconviction relief statute. The amendment limited a prisoner’s right to direct appeal in prison disciplinary cases by allowing appeal only by writ of certiorari. The State’s right to direct appeal was not limited by the amendment. Id. We declared the amendment unconstitutional, stating:
It is true that the right of appeal is purely statutory, not constitutional, and may be granted or denied by the legislature as it determines. Boomhower v. Cerro Gordo County Bd. of Adjustment, 168 N.W.2d 75, 76 (Iowa 1968); In re Chambers, 261 Iowa 31, 33, 152 N.W.2d 818, 820 (1967). This court has held, however, that once a right of appeal is provided “[i]t may not be extended to some and denied to others.” Chambers, 261 Iowa at 33, 152 N.W.2d at 820. When procedures enacted by the State serve to deny one person the right of appeal granted to another, equal protection of the law is denied. Waldon v. District Court, 256 Iowa 1311, 1316, 130 N.W.2d 728, 731 (1964).
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In fairness, however, whatever avenue of appellate review is deemed appropriate by the legislature, that right of appeal must be reciprocal. People v. Sholem, 238 Ill 203, 208, 87 N.E. 390, 392 (1909); Caddell v. Fiscal Court, 238 [258] Ky. 114, 116, 79 S.W.2d 407, 408 (1935); Forston v. Heisler, 341 P.2d 252, 256 (Okla.1959); Texas Liquor Control Bd. v. Lanza, 129 S.W.2d 1153, 1154 (Tex.Civ.App.1939). Iowa Code section 663A.9 plainly casts prisoners and the State in unequal roles insofar as appeal from adverse disciplinary decisions is concerned. Under the Chambers and Waldon decisions cited above, that inequality cannot be permitted.
Shortridge, 478 N.W.2d at 615.
In the present case, a substantial imbalance results from the appeal procedures that grant the right to delay proceedings to one party and deny that right to the other. The department of human services argues that administrative efficiency is served by this imbalance because a finding of guilt by clear and convincing evidence or beyond a reasonable doubt in other judicial proceedings would mandate a finding of culpability under the department’s preponderance standard. On the other hand, if the accused was found not guilty of abuse by a more onerous burden of proof, the department could still find guilt by a preponderance. Therefore, the department argues, no benefit is gained if an accused delays an administrative hearing until the conclusion of other judicial proceedings.
I do not agree that there is no prejudice to the accused. Failure to establish innocence in other judicial proceedings does not deny an accused the opportunity to be heard on appeal of adverse agency action. Section 235A.19 grants the right to an evi-dentiary hearing pursuant to chapter 17A to all accused abusers whose request for correction or expungement is denied. Involvement in other judicial proceedings does not abridge this right. Moreover, a juvenile or district court finding that the accused cannot be proven culpable of abuse may be advantageous to an accused in a later administrative hearing. The right to delay the hearing until after conclusion of other judicial proceedings could be at least as beneficial to the accused as it is to the department of human services.
No rational reason exists to afford an unfair advantage in the appeal process to the department of human services. The portion of Iowa Code section 235A.19(2) that grants the department the option to defer an administrative hearing on a request for correction or expungement until the conclusion of a related juvenile or district court case is an unconstitutional denial of equal protection. The failure of the statute to provide to the accused an equiva*818lent right to defer the hearing for correction of the report has the correlative effect of extending the time to request a correction beyond the six-month period referred in section 235A.19(2). I would construe section 235A.19(2) to permit an accused to file and have processed a request for correction within a reasonable time after the conclusion of a pending juvenile or district court case relating to the information or findings in the child abuse report.
McGIVERIN, C.J., joins this dissent.