Dems: Judiciary Committee Report – Week 9, 2019

March 13, 2019
By

FLOOR ACTION:

SJR 18 – Firearms constitutional amendment

SF 237 – Changes to judicial nominating commissions

SF 272 – Educational loan debt management services

SF 344 – Jury service excused if age 72 or over

SF 346 – Criminal offense of female genital cutting

SF 377 – Municipal tort liability for nonprofits that provide emergency services

COMMITTEE ACTION:

SF 11 – Joint physical care

SF 68 – Liability protections for disaster volunteers

SF 179 – Expanding statutory rape

SF 296 – Death penalty

SF 363 – Intent to steal a motor vehicle

SF 381 – Violent repeat offenders

SF 382 – Domestic abuse screening

SF 405 – Criminal omnibus legislation

SF 406 – Tracking and keeping data regarding non-U.S. resident crimes

SSB 1007 – County attorneys obtaining professional permits to carry weapons

SSB 1135 – Indigent defense payments when there is a privately hired attorney

SSB 1220 – Liability shield for employers who negligently hire an offender

SSB 1233 – Exploitation of a student with a disability

 

FLOOR ACTION:

SJR 18 – Firearms constitutional amendment

SJR 18 proposes an amendment to Iowa’s Constitution relating to firearms. Iowa’s Constitution currently does not have any language relating to the right to possess firearms. SJR 18 proposes an amendment to the Iowa Constitution conferring the right of the people to keep and bear arms. In addition, the resolution says, “The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right will be subject to strict scrutiny.”
[3/13: 33-16 (Yes: Republicans and R. Taylor; Vacancy: Danielson)]

 

SF 237 – Changes to judicial nominating commissions

SF 237 is a Republican proposal that makes drastic changes to the way judges in Iowa will be chosen, primarily through changes to the judicial nominating commissions. Currently, judicial nominating commissions recommend nominees whose names are sent to the Governor to fill judge vacancies on the Iowa Supreme Court, the Iowa Court of Appeals and district courts. Currently, the Governor appoints half the members of the commissions and Iowa attorneys elect half the members. This bill does away with the election of members to the state judicial nominating commission by resident attorneys. Instead, the House and Senate majority and minority leaders, will appoint members to the state judicial nominating commission. The bill also requires the Iowa Supreme Court to appoint one member to the State Judicial Nominating Commission. That appointee cannot be a federal or state employee (essentially, ensuring that no judges are appointed). There is one State Judicial Nominating Commission and 14 District Judicial Nominating Commissions. The 14 district commissions will continue to have appointed and elected members. In addition, under the bill, the Supreme Court will appoint one member to each of the commissions. This appointee cannot be an employee of the federal or state government. This bill politicizes Iowa courts and is a power grab by Republicans who want control of the Judicial Branch. This process could result in extremist individuals being appointed as judges.
[3/12:  32-17, party line (Vacancy: Danielson)]

 

SF 272 – Educational loan debt management services

SF 272 is an Attorney General proposed bill that that relates to debt management services in connection with educational loans. The Attorney General worked with the Division of Banking to craft this legislation. Under current law, the banking division of the Department of Commerce, licenses and regulates those engaged in the business of debt management. This bill requires those who serve as intermediaries between debtors and creditors or loan servicers of the debtor for the purposes of modifying an educational loan to be licensed and subject to the requirements of Chapter 533A relating to Debt Management.

A licensee will not receive any compensation in connection with educational loan debt management services until the licensee has fully performed all services under the contract. Debtors have an unconditional right to cancel a contract prior to midnight of the third business day following the date of the contract and cancellation will occur when the debtor delivers by any means, a written notice of cancellation to a specified address supplied by the licensee, this includes by mail, e-mail and personal delivery.

The bill establishes requirements for contracts for educational loan debt management services, including the size of the type and a disclosure statement regarding the debtor’s rights of cancellation. In addition, the bill sets out behaviors and prohibitions that licensees may not engage in relating to the educational loans debt management services. Violations of provisions of the bill will be consumer fraud pursuant to Code section 714.16.
[3/12: 49-0 (Vacancy: Danielson)]

 

SF 344 – Jury service excused if age 72 or over

SF 344 permits anyone who is 72 or older to be exempt from jury service if they wish to be exempt and notify the court.
[3/12: 49-0 (Vacancy: Danielson)]

 

SF 346 – Criminal offense of female genital cutting

SF 346 makes “female genital mutilation” of a minor a crime. Under the bill, a person who performs female genital mutilation of a minor commits a “D” felony. It will not be a violation of the law when a licensed medical professional in Iowa performs the surgical procedure when necessary to protect the health of the minor on whom the procedure is performed; or when the procedure is performed on a minor who is in labor or who has just given birth and is related to the labor or birth. The bill makes it a “D” felony to knowingly transport a minor inside or outside of Iowa for female genital mutilation. This past November, a U.S. District Judge found that the federal law banning female genital cutting was unconstitutional. As a result, a number of states have begun to criminalize it.
[3/12: 49-0 (Vacancy: Danielson)]

 

SF 377 – Municipal tort liability for nonprofits that provide emergency services

SF 377 extends immunity from tort liability that is currently granted to municipalities for claims based upon or arising out of an act or omission in connection with emergency response services, to nonprofit corporations providing the same services pursuant to a written contract with a city, county, township or benefitted fire district.
[3/12: 49-0 (Vacancy: Danielson)]

COMMITTEE ACTION:

SF 11 – Joint physical care

SF 11 relates to custody and care of children. Under current law, there are generally three types of custody awarded by courts when custody of children is being decided. One is “legal” custody, which means both parents are entitled to be included in decisions regarding healthcare, schooling, etc., of the child. Thus, if joint legal custody of a child is awarded, it relates primarily to decision-making and information regarding a child’s welfare. “Physical” custody/care is another type of custody and refers to where a child will be primarily residing. Thus, a parent can be awarded joint legal custody, but not physical custody of a child. Joint physical custody/care is an award of physical care of a child equally divided between the parents. So, under a joint physical care arrangement, a child will generally reside with one parent half of the time and the other parent half of the time.

In Iowa, either parent can request joint physical care, but there is no presumption that joint physical care will be in the best interests of a child. Senate File 11 creates a rebuttable presumption that when joint legal custody is awarded to both parents, joint physical care is favored. However, a finding of child abuse or neglect by one parent would rebut the presumption. If the court does not award joint physical care, the court must cite clear and convincing evidence that it would be unreasonable to do so and would not be in the best interest of the child.
[3/7: 10-5, party line]

 

SF 68 – Liability protections for disaster volunteers

SF 68 provides protection from civil liability to any volunteer, whether part of a recognized volunteer organization or not, who enters upon or in property pursuant to a disaster. Immunity from civil liability for acts or omissions exists if the volunteer, while upon or in the property, is acting in good faith, unless such acts or omissions constitute recklessness, willful misconduct or gross negligence. To enter property pursuant to a disaster, the following must apply:

  • The governor has issued a proclamation of a disaster emergency.
  • An emergency exists on the property or is directly affecting the property.
  • Reasonable effort has been made to contact or locate the owner or person in lawful possession of the property to obtain consent to enter. However, if circumstances require immediate mitigation to prevent harm to life or property, contacting the owner may be made after entrance upon or in the property.
  • Entry is made in good faith.

Immunity does not apply if the volunteer has been told not to enter or to leave the property by federal authorities, emergency management personnel, a peace officer, state military called to help with the disaster or the owner.
[3/7: short form]

 

SF 179 – Expanding statutory rape

SF 179 will make it a “D” felony when a person engages in sexual activity with a 16 or 17 year old and the person is 10 or more years older than the teen and they are not married. Under Iowa law, the age at which a person can legally consent to sexual activity is 16. This bill makes an exception to that and adds to Iowa’s statutory rape laws by criminalizing sexual activity between a 16 or 17 year old and anyone 10 or more years older. A “D” felony is punishable by up to five years in prison and a fine.
[3/7: 10-5, party line]

 

SF 296 – Death penalty

SF 296 proposes to bring the death penalty back to Iowa. The bill provides that a person convicted of “capital murder” may be put to death upon conviction or a guilty plea when certain criteria are met. Eligibility for the death penalty means when a person is convicted of the multiple offenses of murder in the first degree, kidnapping and sexual abuse with respect to the same victim and the victim is a minor. The defendant must be 18 years old or older, not intellectually disabled and not mentally ill to be subject to a possible penalty of death.
[3/7: 8-7 (No: Bisignano, Hogg, Kinney, Nunn, Petersen, Sinclair, R. Taylor)] 

 

SF 363 – Intent to steal a motor vehicle

SF 363 relates to a showing of intent to steal a motor vehicle. Under Iowa law, theft is defined as taking “possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof.” SF 363 says that in the case of a motor vehicle, depriving another of the possession or control of the motor vehicle for six or more hours establishes the intent to deprive another of possession or control of the motor vehicle.
[3/7: 10-5 (party line)]

 

SF 381 – Violent repeat offenders

SF 381 relates to earned time allowed for those who commit certain crimes as specified in the bill. The bill:

  • Requires a presentence investigation to include a risk assessment when the offender has been found guilty of or pled guilty to serious misdemeanor domestic abuse or serious misdemeanor harassment.
  • Requires all presentence investigations that are ordered by the court to include a risk assessment if the offense for which the defendant has been convicted of or pled guilty to is domestic abuse assault, harassment or stalking.
  • Creates a new category of offender called “violent repeat offenders.” These are defendants convicted of a felony offense of homicide, assault, sex abuse, kidnapping, robbery 1st or 2nd degree, or burglary, and have two previous felony convictions for any of the those same offenses. A violent repeat offender will only be permitted to accumulate earned time while in prison at a rate of 15/85ths of a day for each day of good conduct. Most other offenders are eligible for a reduction of sentence equal to one and two tenths days for each day of good conduct. The 15/85ths is equal to a 70 percent mandatory minimum.
    [3/7: short form]

 

SF 382 – Domestic abuse screening

SF 382 requires that a peace officer who is called to a disturbance and believes that domestic abuse has occurred to conduct a validated, evidence-based domestic abuse lethality screening assessment with the abused person to identify the likelihood of the victim being killed in the future. The results of the assessment must be provided to the county attorney. To determine the pre-trial conditions of release for the defendant, the court must consider the results of a domestic abuse lethality screening assessment.

In addition, the bill requires that if a defendant is charged with domestic abuse and is determined to be at high risk to reoffend, the court must require the defendant to be supervised by electronic monitoring to be released pre-trial. The bill also requires a person who is serving a sentence for class “D” felony domestic abuse to be electronically monitored upon release if not confined in a secure area of a community-based corrections facility.
[3/7: 14-1 (No: R. Taylor)]

 

SF 405 – Criminal omnibus legislation

SF 405 makes changes to multiple areas of the criminal law, including:

  • Expungement: allows for expungement of various misdemeanor convictions.
  • Robbery: reduces the potential mandatory minimum sentence for robbery in the first degree with the court deciding what the mandatory minimum will be, between the range of 50 percent and 70 percent.
  • Theft, fraud, forgery and other property crimes: increases the value of the property stolen that qualifies for specific criminal charges thus making the penalties more commensurate.
  • Criminal proceedings: makes various changes to current criminal procedure, particularly upon criminal appeals and post-conviction relief.
  • Medical Examiner investigations: expands what information a medical examiner can use when making a determination on cause of death.
    [3/7: 13-2 (No: Hogg, R. Taylor)]

 

SF 406 – Tracking and keeping data regarding non-U.S. resident crimes

SF 406 requires all state and local law enforcement agencies to collect data relating to the commission of public offenses by nonresident aliens defined as:

  • Any person who is not a citizen of the United States, or
  • Any person not lawfully admitted into the U.S. for permanent residence by the U.S. Immigration and Naturalization Service. An individual is lawfully admitted for permanent residence, regardless of whether the individual’s lawful permanent resident status is conditional.

The data collected must include:

  • Whether a citation was issued or an arrest was made.
  • The type of citation issued or the basis of the arrest.
  • Whether the offense a misdemeanor or felony.
  • If the offense was committed against another person.
  • Any injuries sustained by another person or a law enforcement officer.
  • Any property seized pursuant to an arrest.

The nonresident alien public offense data will be submitted to the Division of Criminal and Juvenile Justice Planning (CJJP), which must establish and maintain a nonresident alien public offense research project to analyze and evaluate the public offense data relating to nonresident aliens. CJJP must submit an annual report to the Legislature by January 31 of each year.

Note: The definition of nonresident alien would seem to include all those who are not U.S. citizens who are vacationing and travelling in the U.S., as well as others legally present in the United States but not admitted for permanent residence. One obvious problem with the bill will be the issue of how to obtain the information regarding an individual’s status, especially when a citation is issued.
[3/7: 10-5, party line]

 

SSB 1007 – County attorneys obtaining professional permits to carry weapons

SSB 1007 allows county attorneys and assistant county attorneys to be eligible for  professional permits to carry weapons, which would authorize them to go armed anywhere in the state at all times, except on the grounds of  schools; or beyond a security screening station at a courthouse, subject to the rules, directives and procedures of the Judicial Branch and the judicial district.
[3/7: 13-2 (No: Bisignano, R. Taylor)]

 

SSB 1135 – Indigent defense payments when there is a privately hired attorney

SSB 1135 sets out requirements that must be followed for indigent defense funds to be paid to privately retained attorneys in criminal cases. There are times when a criminal defendant will hire a private attorney to represent him or her, and the defendant will give the attorney a retainer. However, the defendant may not have the money to continue paying the private attorney as the case progresses, so an application is made to the court to have the state pay for the costs of the privately retained attorney. For the state to grant an application and authorize payment to the privately retained attorney, the court must find:

  • That the defendant is indigent.
  • The costs are reasonable and necessary for the representation of the indigent person in a case for which counsel could have been appointed.
  • The moneys paid or to be paid to the privately retained attorney by or on behalf of the indigent person are insufficient to pay all or a portion of the costs.
  • The calculations that are to be used by the court must be the hourly rate that is currently authorized by code for indigent defense cases, not the privately retained attorney’s hourly rate.

If the court finds that the costs incurred by the privately retained attorney are reasonable and that the state should pay some or all of the fees, the state public defender will review the amount that the court has authorized. This requirement will apply to payments to witnesses, evaluators, investigators and certified shorthand reporters, and other costs incurred by a privately retained attorney in the legal representation.
[3/7: 10-5, party line]

 

SSB 1220 – Liability shield for employers who negligently hire an offender

SSB 1220 prohibits a cause of action for damages against a private employer, general contractor or premises owner for negligently hiring an employee, agent or independent contractor who has been convicted of a public offense. However, a cause of action for negligent hiring based on evidence that the employee, agent or independent contractor has been convicted of a public offense is not prohibited if all of these criteria are met:

  • The employer knew or should have known of the conviction.
  • The employee was convicted of any of these crimes:
    • A public offense that was committed while performing duties substantially similar to those to be performed taking into consideration these factors:
      • Nature and seriousness of the public offense.
      • Extent and nature of employee’s past criminal activity.
      • Age of employee when offense was committed.
      • Amount of time that has elapsed since the last criminal activity.
    • A sexually violent offense.
    • First-degree murder.
    • Second-degree murder.
    • First-degree kidnapping.
    • Robbery first degree.
    • Manufacture or possession of a controlled substance on school grounds and other public properties.
    • A felony offense involving the use of a dangerous weapon.

The protections provided in this bill will not apply in a suit concerning the misuse of funds or property of a person other than the employer by an employee if, on the date the employee was hired, the employee had been convicted of a public offense that included fraud or the misuse of funds or property as an element of the public offense, and it was foreseeable that the position for which the employee, agent or independent contractor was hired would involve discharging a fiduciary responsibility in the management of funds or property.
[3/7: 14-1 (No: Garrett)]

 

SSB 1233 – Exploitation of a student with a disability

SSB 1233 creates the crime of sexual exploitation of a child with a disability by an employee of a community college. The bill provides that a community college instructor who provides “4+ services” at the community college can be charged with sexual exploitation by a community college employee if that employee engages in grooming behavior or engages in any sexual conduct with a student with a disability for the purpose of arousing or satisfying the sexual desires of the employee or the child. For purposes of this offense, “4+ services” are secondary planning and transition services intended to give students vocational and life skills to increase independence in adulthood and which are part of a student with a disability’s secondary schooling and are included in the child’s individualized education program (IEP). Child with a disability is defined as a person between 18 and 22 who has a disability in obtaining an education because of a head injury, autism, behavioral disorder, or physical, mental, communication or learning disability, as defined by the rules of the Department of Education. The penalty will be a “D” felony or an aggravated misdemeanor, depending upon the severity of the behavior.
[3/7: short form]

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