Aggravated Misdemeanor Convictions DO NOT Disqualify Voters!

About four weeks ago, I was sent a link to a brochure prepared by the IA Chapter of the ACLU to assist Iowans convicted of felonies in navigating the unnecessarily complex process of applying to the Governor for a restoration of their voting rights. This seemed like a great idea; however, upon opening the link I was unpleasantly surprised to find several statements  on the IA-ACLU’s website and in their brochure declaring that any Iowan convicted of an aggravated misdemeanor cannot legally vote, and referencing information set out inthe Governor’s website’s FAQ section (see the 2nd FAQ on the first page) to support this assertion.

When I say “unpleasantly surprised” I actually mean “horrified,” since I practice criminal law, and since it is my understanding that only a felony conviction triggers loss of voting rights, I don’t inform clients pleading guilty to an aggravated misdemeanor offense (e.g.,  Driving While Barred) that in doing so, he or she is effectively and permanently forfeiting his/her constitutional right to vote. I do explain the loss of voting rights to clients who are entering a guilty plea to a felony offense, and in accepting a plea to a felony, the judge always goes through it again, on the record, to make sure that the defendant understands exactly what he or she is giving up – but since I was under the impression that only a felony conviction triggers disenfranchisement (loss of voting rights), I don’t tell my clients otherwise, nor has any judge in any aggravated misdemeanor case I have ever handled.

So I was more than a little freaked out, and immediately turned to Secretary of State Matt Schultz’s website, since it is Iowa’s Secretary of State who is tasked with supervising Iowa’s 99 county auditors and enforcing Iowa’s election laws. I was relieved to discover that it very clearly states on the SOS website’s voting eligibility information page that only a felony conviction triggers loss of voting, and that Iowa’s official voter registration form  only requires an applicant to certify that he or she has never been convicted of a felony – no questions about aggravated misdemeanor convictions. And after spending way too many hours researching and deconstructing the Iowa law controlling voting rights, I can unequivocally state that while there are many issues on which Matt Schultz and I do not agree (e.g., the need for overly burdensome voter ID regulations to control Iowa’s non-existent voter fraud problem), on this issue — and quite possibly only on this issue —  I am 100% in the Secretary of State’s corner. (Quite a red letter day for Matt, I am sure).

But while I am thrilled to have found reassurance that Iowans with aggravated misdemeanor convictions can legally vote in Iowa, I am not thrilled about what appears to be a complete and total disconnect between Iowa’s Governor and Secretary of State on such a straightforward, yes or no issue. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”Reynolds v. Sims, 377 U.S. 533, 555 (1964), and Iowans have a right to be provided with clear, concise, and – most importantly – consistently correct information about those rights by Iowa’s leadership.

So if the Secretary of State is correct and Iowans convicted of an aggravated misdemeanor offense are eligible to vote under Iowa law (and he is, and they are), then it is a travesty that our Governor (unfortunately with the help of the IA-ACLU) is disseminating information indicating just the opposite, since by doing so he is misleading tens of thousands of Iowans about their right to participate in the democratic process (unintentionally misleading, I am sure, but still misleading). And if the Secretary of State is wrong (which he isn’t, on this issue at least, but let’s just suppose) then Iowans with an aggravated misdemeanor conviction who rely upon the SOS’s website, and do vote, could be charged with a felony offense under Iowa Code §39A.2(3) — and how ridiculous would that be? So clearly, everyone needs to be on the same page, and they need to be on the correct page, and for the reasons set out below I propose that the correct page is the page that definitively declares that in Iowa, it is a state or federal felony conviction, and only a state or federal felony conviction, that acts to disqualify an otherwise eligible Iowan from voting.

Iowa’s Constitution and Iowa’s laws support the Secretary of State’s position that it takes a felony conviction to disqualify Iowans from voting.  Article II, Section 5 of Iowa’s Constitution, tells us that “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” Thus, according to our Constitution, Iowans convicted of an “infamous crime” can’t legally vote – so what constitutes an infamous crime?

The dictionary definition of infamy is “an evil reputation brought about by something grossly criminal, shocking, or brutal” or “an extreme and publicly known criminal or evil act.”  Some synonyms for infamous include abominable, atrocious, corrupt, degenerate, detestable, heinous, foul, loathsome, monstrous, odious, perverse, shocking, vile, and wicked. So common sense would suggest that an infamous crime is an extremely serious crime — one that normal people would find shocking, foul, wicked, etc.

Obviously, reasonable people can disagree on whether a specific crime reaches the level of shocking/foul/wicked, so who gets to decide whether or not a crime reaches that level? The Iowa legislature gets to decide — and in 1995, the legislature created a more specific definition: under IA Code §33.3(8), an infamous crime is “a felony as defined in section 701.7, or an offense classified as a felony under federal law.” And this definition of infamous crime was incorporated into Iowa Code §48.6(1), which states that in Iowa, a disqualified voter is a person who has been either “convicted of a felony as defined in Iowa Code §701.7″ OR “convicted of an offense classified as a felony under federal law”. That’s it, in a nutshell — if you don’t fall into one of those two categories, then you are legally eligible to vote in Iowa (at least as far a criminal convictions are concerned — there are some other rules having to do with age and mental status, but they aren’t relevant to this discussion).

So…. is a person convicted of an aggravated misdemeanor “convicted of a felony as defined in 701.7,” so as to fall into the first category of disenfranchised voters created by 33.3(8) and 48A.6(1)? 

Absolutely not. Iowa Code §701.7 states that “A public offense is a felony of a particular class when the statute defining the crime declares it to be a felony.”  This is a fancy way of saying that a person convicted of a state felony — whether it’s a felony conviction from Iowa or a felony conviction from Illinois or a felony conviction from Alaska etc —  is convicted of a felony for purposes of disqualification of voting rights in Iowa, and cannot vote in Iowa unless and until the Governor restores his/her right to do so (which under our current administration is an extremely iffy proposition, but that’s a rant for another day). Under the full faith and credit concept, this makes sense — if a sister state declares a certain crime to be a felony, then as far as Iowa is concerned, it’s a felony. But clearly, an aggravated misdemeanor conviction would not be a felony conviction under this prong of 48A.6(1).

OK, then, is a person convicted of an aggravated misdemeanor “convicted of an offense classified as a felony under federal law?” so as to fall into the second category of disenfranchised voters created by 33.3(8) and 48A.6(1)?

Again, no. A conviction for “an offense classified as a felony under federal law” means, in my opinion, a conviction for a federal felony offense. I.e., it means what it says. Simple, right? And since an Iowa aggravated misdemeanor offense (or a misdemeanor offense from any state) is obviously not a federal felony offense, then an aggravated misdemeanor conviction does not trigger loss of voting rights.

I will acknowledge that the drafting of this prong of 48A.6(1) is sloppy, and that ideally, instead of “or convicted of an offense classified as a felony under federal law” the second prong of 48A.6(1) should read “or convicted under federal law of an offense classified as a felony.”  Because the subordinate clause “under federal law” was stuck at the end of the sentence instead of after “or convicted,” which is where it belongs, the phrase is rendered somewhat ambiguous, and it is this slight ambiguity upon which the Governor has staked his claim that aggravated misdemeanor convictions trigger loss of voter rights. But more about the Governor’s convoluted analysis of the law shortly.

Under my analysis, Iowa Code §48A.6(1) – which incorporates the definition of “infamous crime” set out in Iowa Code §33.3(8) – clearly disqualifies people from voting in Iowa ONLY if they have been convicted of a felony in a state court OR if they have been convicted of a felony in a federal court, period. It does not disqualify people who have been convicted of aggravated misdemeanor offenses. That’s what the plain language of the law says, and this interpretation is certainly clear and consistent with the common sense, dictionary definition of infamous crime (a shocking/ foul/wicked crime), since while most Iowa felony offenses can, arguably, be considered shocking/foul/wicked, most (if not all) Iowa aggravated misdemeanor offenses simply cannot.  (Here’s a chart that lists every Iowa criminal offense — check out the third column to spot the many many aggravated misdemeanors). 

Best of all, this reasonable interpretation of the law doesn’t result in loss of voting rights for the tens of thousands of Iowans who have been convicted of aggravated misdemeanors or who have discharged aggravated misdemeanor convictions in the eighteen months since Gov. Branstad took office. It would be a horrible injustice for all of these non-felons to suddenly be informed, for the first time, just weeks before the extremely important upcoming election, that they will not be allowed to participate in this election — and thus I am very glad that the Secretary of State apparently agrees with my interpretation of Iowa voting law, and has been allowing and (I assume) will continue to allow Iowans convicted of aggravated misdemeanors to vote.

But if it’s so obvious that under Iowa law, only felony convictions trigger loss of voting rights, then what the heck are the Governor (and the IA-ACLU, unfortunately) doing taking the opposite position? I certainly don’t speak for the Governor, but I have engaged in some dialogue with the IA-ACLU rep, and here’s my best synopsis of my understanding of the rationale behind the assertion that a conviction for an aggravated misdemeanor does trigger loss of voting rights (and again, I may well be missing something or mistating their analysis and if so, hopefully someone will correct me): 

1.  That the first prong of 48A.6(1) – a conviction for “a felony as defined in 701.7″- means an Iowa felony conviction only, and does not refer to a felony conviction from any other state. I do not agree, since 701.7 clearly does not require that the public offense take place in Iowa, or that the statute declaring the public offense a felony be an Iowa statute. So I continue to maintain that a conviction for “a felony as defined in 701.7″ means a felony conviction from any state.

2.  That the second prong of 48A.6(1) – “or convicted of an offense classified as a felony under federal law” – does not, in fact, refer to a conviction for a federal felony offense (which is certainly what it seems to refer to), it means instead a conviction for any crime, whether in state or federal court, that carries a maximum sentence of more than one year. 

The argument is that (1) under federal law – federal, not state law – an infamous crime is defined as a crime that upon conviction carries a maximum period of incarceration of more than a year (which is true), and that (2) all federal crimes that carry a maximum sentence of more than a year in prison are classified as felonies (which is true), and thus (3) an Iowa aggravated misdemeanor conviction, which carries a maximum indeterminate two year prison sentence, is, in fact, a “felony” for purposes of taking away an Iowan’s right to vote (?).

My first reaction to this (confusing and convoluted, in my opinion) argument was “Seriously?” We are dealing with an interpretation of our STATE law here, folks, not federal law, and in enacting IA Code §33.3(8), the Iowa legislature specifically declined to define “infamous crime” as “a crime carrying a possible maximum sentence of incarceration in excess of one year” –  i.e., the legislature did not simply adopt the federal definition of infamous crime for purposes of Iowa’s voting rights law, which it certainly could have done if that’s what it intended the law to be. 

And the reason I assume the legislature didn’t just parrot federal law on this issue is because our Iowa “indeterminate” criminal sentencing structure is extremely different from that of the Federal “determinate” criminal sentencing structure. Under Federal law, a person convicted of a federal felony and sentenced to serve a (determinate) two year federal prison sentence is going to serve out almost all of that time locked up in federal prison; under Iowa criminal law, a person convicted of an aggravated misdemeanor and sentenced to an (indeterminate) two year state prison sentence is eligible for parole immediately upon entering prison, and if not paroled sooner, will completely discharge the sentence in about ten months, due to the fact that prison inmates are given 1.2 days of good time for every day that they serve.

In other words, while in theory an Iowa aggravated misdemeanor conviction carries a maximum sentence of more than a year, it would be extremely rare for a person serving a prison sentence due to an aggravated misdemeanor conviction to serve more than ten months in state prison, and thus in reality the sentence for an Iowa aggravated misdemeanor conviction is very much not the equivalent of the sentence for even the lowest level of federal felony conviction — which is why it’s problematic to interpret the second prong of 48A.6(1) in such a way as to elevate Iowa aggravated misdemeanor convictions to the same level of “infamy” as federal felony convictions. 

And that’s what the Governor’s interpretation of 48A.6(1) does — it treats an Iowa aggravated misdemeanor conviction as the equivalent of a federal felony conviction for purposes of disenfranchising Iowans, even though this interpretation makes no sense in light of the different sentencing structures (i.e., it’s equating apples to oranges), and even though aggravated misdemeanors are not felonies and thus the plain language of 48A.6(1) could not possibly put any normal, non-attorney Iowan on notice of the fact that an aggravated misdemeanor convictions results in loss of voting rights.

Having said that, I’m an attorney, and because I handle criminal cases in state court and have some familiarity with federal criminal law, and because of the aforementioned problematic drafting on the part of whomever drafted 48A.6(1), I’ll acknowledge that there is an argument, however specious, to be made on behalf of the above position. But the fact that an argument can be made doesn’t mean that it’s a good argument, or that it’s an argument that should be made, and it’s my opinion that it is completely untenable for the Governor to embrace an interpretation of a state statute that ignores common sense and that requires reliance on definitions pulled from federal law, instead of on the plain language of the applicable Iowa law. Particularly when there is a much more reasonable and rational interpretation available that does not disenfranchise tens of thousands of Iowans convicted of  crimes like driving while barred, possessing small amounts of drugs for personal use, operating while intoxicated for the 2nd timein 12 years, stealing less than $1,000 worth of stuff, or all sorts of other crimes which are certainly serious but which are certainly not serious enough to disqualify a person from voting for the rest of his or her life.

And just in case you aren’t yet convinced that under Iowa law, aggravated misdemeanor convictions don’t trigger loss of voting rights, let me point out a big problem with the Governor’s take on this issue – it’s redundant as all heck. Which is a problem because when a disagreement arises concerning the manner in which a specific code section should be interpreted – i.e., when the language in a statute is ambiguous and could arguably mean two different things – ultimately it’s up to an appellate court (in Iowa, either the Court of Appeals or Supreme Court) to decide which interpretation is the correct one.  And when engaging in statutory construction, appellate courts frown on interpretations that result in redundancy within a specific code section (much less within a specific sub-section of a specific code section), which is the case with the Governor’s interpretation of 48A.6(1), as follows:

Both sides agrees that under 48A.6(1) you can’t legally vote in Iowa if you fall into either Category A or Category B, but there is disagreement as to the occupants of the respective categories. Under one analysis (mine, and I believe the Secretary of State’s), Category A consists of everyone convicted of a state felony offense, and Category B consists of everyone convicted of a federal felony offense – no redundancy there, right?  Under the Governor’s theory, however, Category A consists of everyone convicted of an Iowa felony offense, and Category B consists of everyone convicted of any criminal offense carrying a sentence in excess of one year – which would include everyone convicted of an Iowa felony offense, right? 

So under the Governor’s interpretation, the phrase “convicted of a felony as defined by 701.7″ is completely redundant and serves as mere surplusage. This may seem like a technicality, but in the world of statutory interpretation, it’s a big no-no of a technicality, and in my humble opinion pretty much seals the deal in favor of the following interpretation of Iowa Code §48A.6:

That in Iowa, a person convicted of either a state felony or a federal felony, cannot vote unless and until his or her voting rights are restored by the Governor, and that since a person convicted of an aggravated misdemeanor has not been convicted of either a state felony or a federal felony, a person convicted of an aggravated misdemeanor can legally vote in Iowa.

I may be wrong — I have been before, and I no doubt will be again — but for the sake of the (at least) 30,000 Iowans who will be ineligible to exercise a fundamental constitutional right if I am wrong, I sure hope that this time I have it right, and that the Secretary of State has it right, and that the Governor has it wrong.  What do you think? 

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We’re Done – Here’s What We Did …

The Iowa House adjourned earlier this morning (Thursday, May 1st) at about 4:30 a.m., after passing more bills in 12 hours than we had passed during the prior three months (ok, not really, but that’s sure how it seemed). It was the first time the “no voting in the House after midnight” rule has been waived since it was instituted four years ago, so everyone was giddy w excitement. Also w exhaustion.

The big drama was the last minute passage of Senate File 2360, the Medical Cannabidiol bill  – the House did a strikeafter amendment that made it even narrower than the Senate’s original bill, but its passage is still a big victory for the 100 or so Iowans suffering from intractable epilepsy (most of whom are children, since people diagnosed with this incredibly destructive disorder tend to die young).  Both the House and Senate also passed SF 2297, a bill addressing Iowa’s overly punitive and largely nonsensical HIV transmission laws, which was quite a surprise since until yesterday, that bill was presumed DOA in the House.

And we passed many many other bills, most of which I could go on about in great detail pointing out each one’s pros and cons but I need a nap so for now, here’s a comprehensive list of bills passed by the 2014 IA General Assembly, arranged by subject matter (i.e., by the committee in which the bill started out). This was prepared by the (fabulous) Iowa House Democratic Research Staff, but it’s totally nonpartisan … just sets out a brief description of each bill, as well as whether or not the bill has been signed into law by the Governor (and if so, when the new law becomes effective).

In the best of all possible worlds, this list would contain hyperlinks to each bill, but … it doesn’t, and while I could probably make it happen it would take me waaaay too long. So here’s a link to the Iowa General Assembly home page: https://www.legis.iowa.gov/ –  just plug in the bill number (eg, HF2459, which increases the income tax credit for volunteer fire fighters and EMS providers) into the search engine on the left hand side and it’ll come right up.

A lot of things I would have like to see pass didn’t pass, but so did a lot of things I didn’t want to see passed. In the end, the good hopefully outweighed the bad – and there’s always next year.

Thanks for all the support, past/future/present.

 

 

 

 

 

 

 

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If you’re a teenager with a coaching authorization (or the parent of one) – YOU WANT TO READ THIS.

So last night the Iowa House unanimously passed House File 2474: An Act expanding the criminal offense of and related penalties for sexual exploitation to include persons issued a school coaching authorization. This is a leadership bill intended to address a specific problem raised in an April 11th Iowa Supreme Court ruling – State of Iowa v Patrick Ryan Nicoletto – in which the Court held that a 30 year old assistant high school girls’ basketball coach who had engaged in an ongoing consensual sexual relationship with one of his 16-year-old players could not be convicted of the crime of “Sexual Exploitation by a School Employee” because he did not, in fact, meet the statutory definition of “school employee” – since unlike many school coaches whose are also licensed teachers, Mr. Nicoletto was… just a coach, and coaches aren’t issued licenses, they’re issued coaching authorizations. The Court’s ruling resulted in Mr. Nicoletto’s conviction for Sexual Exploitation being overturned – he’s no longer a sex offender, or a felon, which many members of the general public find troubling. And since the Court’s ruling included several variations on the theme of “hey, we don’t write the laws, we just interpret them,” there appears to be a general consensus that we (i.e., the legislature) need to fix this “loophole” right away, before we adjourn next week.

Which is where House File 2474 comes in, and we’ll get to that, but first, some background.  Actually, first I must point out that the Court’s ruling in Nicoletto did not serve to declare open season on Iowa’s children (which is certainly the way some people have been spinning it). It’s really only relevant to high school students over the age of 16, because had the player with whom Nicoletto engaged in consensual sex been under the age of 16, Nicoletto could have – and no doubt would have – been charged with and convicted of Sex Abuse 3rd degree, a Class C felony sex offense carrying a lifetime parole and sex offender registry requirement, pursuant to Iowa Code section 709.4(1)(b)(3)(d) (the “statutory rape” provision) . So the Court’s ruling does NOT give school coaches carte blanche to engage in sexual acts with the majority of Iowa’s school children – that’s already a crime, and it’s a more serious crime than Sexual Exploitation by a School Employee, and thus Iowa’s children under the age of 16 are currently protected from sexually predatory coaches (at least to the extent that criminalizing sexually predatory behavior actually deters sexual predators from engaging in that behavior, about which I have my doubts).

Now, back to the background of 709.15 (titled  “Sexual Exploitation by a Counselor, Therapist or School Employee,” but we’re only interest in the “School Employee” portion of the statute). As defined by the statute itself, a “school employee” is a “practitioner,” and a “practitioner” is defined by Iowa Code 272.1 as an “administrator/teacher/other licensed professional … who provides educational assistance to students.” So for all practical purposes, currently the crime of Sexual Exploitation of a School Employee can only be committed by a licensed teacher or school administrator (pretty much) … and since most defendants charged with the crime of Sexual Exploitation by a School Employee are teachers, for purposes of this discussion I’m just going to reference teachers.

What behavior on the part of teachers does 709.15 actually criminalize? Well, if a teacher engages in any “sexual conduct” w/a student (note that a student is defined as a student in elementary/secondary school, including an eighteen or nineteen year old high school senior and/or a person who has graduated from high school w/in the past 90 days), the teacher commits a Class D felony sex offense, w/a sentence of up to 5 years in prison, a ten year “special sentence” of parole after that, and (if the student is under 16) lifetime sex offender registry (if the student is 16 or older, it’s only ten years on the sex offender registry).

“Sexual Conduct” includes but is not limited to kissing (yes, kissing!), or touching of the clothed or unclothed inner thigh/ bust/groin/buttocks, or an actual sex act, if these actions are done for the purpose of arousing or satisfying the sexual desires of the teacher or student. It doesn’t matter if the sexual conduct is with a student from some other school district who hasn’t been, isn’t currently, and never will be the teacher’s student  – e.g., a 2nd grade teacher cannot legally date an 18-year-old senior from a high school in another county (assuming the date includes kissing).

I certainly understand the rationale behind making it a felony sex offense for a high school teacher to engage in sexual conduct w/a student attending the high school at which the teacher works – even if the teacher has never personally taught the student, and even if the student is over 16 and thus could legally “consent” to sexual conduct w/non-teacher adults. A teacher’s position of authority over students in general makes any sexual conduct between a teacher and a student attending the school at which the teacher is employed inherently coercive … i.e., it’s not a level playing field. And besides, teachers and students should be focused on teaching and learning, and not on hooking up w/each other.

Having said that, I’m not so clear on the rationale behind making it a sex offense for, say, an elementary teacher to engage in sexual conduct w/her 18-year-old boyfriend from the next county over just because that boyfriend happens to still be a high school student. Maybe better safe than sorry? Or concerns about the appearance of impropriety?  Whatever the rationale (or lack thereof) I can live with the blanket prohibition, since I’m pretty sure that all licensed teachers are at least 21, and that they’ve gone to school for a long time to learn how to be teachers, and that during that extended period of education/training one of the things that is drilled into their heads is that they should never, ever engage in any type of sexual conduct w/any student, no matter the student’s age or location, and that if they disobey this rule they will be guilty of a felony sex offense. I.e., I am confident that licensed teachers are provided with clear and repeated notice of the fact that (a) the law exists and (b) the law applies to them and (c) if they violate the law, they commit a felony sex offense … and thus by choosing to become teachers they effectively give “informed consent” to being subject to the provisions of 709.15.

So that’s the background of the crime of Sexual Exploitation by a School Employee, which the Court held did not apply to Mr. Nicoletto . And because Mr. Nicoletto was let off the hook because he didn’t meet 709.15’s definition of school employee, I’m pretty sure that the primary intent of House File 2474 was to amend  709.15’s statutory definition of “school employee”  in such a way as to ensure that in the future, if a high school coach chooses to engage in sexual conduct with a member of his team (again, the focus is on high school students and specifically high school students over the age of 16 because it’s already a more serious sex offense for a coach – or any adult – to engage in sexual relations with students under the age of 16) that coach can be prosecuted for a felony sex offense. Which makes sense – a high school coach is by definition an authority figure to the members of his team, and the balance of power between a coach and a player is at least as uneven as the balance of power between a teacher and a student, and thus any sexual relationship between the two is inherently coercive. Plus, coaches and players should be focusing on coaching and playing, and not on hooking up with one another. So yes, I agree we need to fix the Nicoletto loophole.

Unfortunately, the “fix” we passed out of the House last night (and which was passed out of the Senate today, and which will become law immediately upon being signed by the Governor within the next few days) is not, in my opinion, the best fix; like many criminal justice bills we pass, it’s a little too broadly drafted, and thus once enacted will criminalize Nicoletto-type behavior (which is good) but will also criminalize behavior that simply is not and should not be a crime (which is bad).

The problem, as it often is, is in the drafting.  HF 2474 amends Iowa Code section 709.15(1)(f)(2014) – the statutory definition of “school employee” – as follows:f. “School employee” means a practitioner as defined in section 272.1  or a person issued a coaching authorization under section 272.31, subsection 1Since all school coaches who aren’t licensed teachers must have a coaching authorization, under the bill, a high school coach will be considered a “school employee,” and if s/he engaged in sexual conduct with one of his/her players, s/he could be prosecuted for/convicted of the crime of Sexual Exploitation of a Minor. That’s the good part.

Here’s the bad part: Under the bill, it’s not just high school coaches like Mr. Nicoletto who are now considered school employees. As soon as the Governor signs HF 2474 into law, it’s anyone who has (ever?) obtained a coaching authorization pursuant to Iowa Code 272.31 who will immediately be considered a “school employee” for purposes of prosecution under 709.15. Regardless of when the person was issued the coaching authorization, and regardless of whether or not the person has ever actually been employed by a school in any type of capacity, coaching or otherwise.

And because it’s not particularly difficult or time-consuming to obtain a coaching authorization -a person must complete four semester hours of specific classes, which can be done online or through a local community college ( http://www.kirkwood.edu/coaching) –  there are a whole lot of Iowans with valid  coaching authorizations  including 170 teenagers, all of whom will be subject to prosecution as “school employees” as soon as the Governor signs HF 2474 into law.

Which creates a serious problem for these kids, since I assume that at least some, if not most, of these 170 teenagers with coaching authorizations have a boyfriend or girlfriend who is still in high school – in fact, I assume some of these kids are themselves still high school students.  And once House File 2474 becomes law, if one of these kids so much as kisses his/her high school student girlfriend/boyfriend, s/he is guilty of the crime of Sexual Exploitation by a School Employee. Period. No question about it. Even if the only coaching s/he does is on a part-time basis at the elementary school in the next county.  Even if s/he’s no longer doing any coaching at all, or has never done any coaching. If s/he’s been issued a coaching authorization, any sexual conduct (including kissing) with any high school student (even an 18 or 19-year-old high school senior) is a felony sex offense.

So overnight, enactment of this bill is going to criminalize normal teenage consensual sexual conduct (e.g., kissing) between two teenagers over the age of 16 who have never had, and never will have, any type of coach/student relationship, based solely on the fact that one of the teenagers has been issued a coaching authorization. This is clearly a ridiculous result, and it’s one that could have been avoided with a few minor tweaks to the language in HF 2474. But this was a leadership bill, on a (kind of bizarrely) fast track, and only about eight hours elapsed between the time the bill was filed and the time it was passed out of the House, so there really wasn’t much opportunity to negotiate tweaks to the bill.

I did, however, have a brief opportunity to discuss my concerns re. the over broad scope of the bill prior to final passage with a few proponents of the bill. Their response was basically that I was being silly, that yes, while many of the teenagers who have been issued coaching authorizations no doubt have significant others who are still in high school, and thus are presumably engaging in sexual conduct with a high school student on a regular basis, there’s no way that any of those kids will be prosecuted for the crime of Sexual Exploitation by a School Employee, even if they openly and repeatedly commit the crime by kissing their high school significant other in public – because of course prosecutors will choose to exercise their prosecutorial discretion and leave these kids alone. So no worries, it’s all good, no need for concern. Right?

Wrong – because assuming that all prosecutors will look the other way and ignore all violations of a specific law by a specific group of people just because it’s obviously a stupid law as applied to the specific group of people is an extremely irresponsible way to handle this problem, and I was pretty appalled that the people with whom I discussed my concerns (non-legislators, btw) even suggested it as a viable option. Prosecutorial discretion is a good thing, and an important tool, and I sure wish prosecutors would exercise it more often, but the key here is that it’s completely discretionary – and the idea that every county attorney in the state will be willing to ignore the fact that a legal adult (albeit a teen age legal adult) is committing a felony sex offense (albeit a harmless one) with a high school student on an ongoing basis is just crazy.  And of course, prosecuting a teenager as a sex offender for making out with his teenage girlfriend is also crazy, but just as the IA Supreme Court Justices like to point out (a lot) that they don’t write the laws, they just interpret them, most prosecutors tend to take the position that they don’t write the laws, they just prosecute violations of the laws. Which is a pretty legitimate position, imo.

So neither I nor any other legislator nor any other attorney should be suggesting to any teenager (or any 20 – 21-year-old for that matter) who has both a coaching authorization and a significant other still in high school that s/he should or can safely maintain this status quo once the Governor signs off on HF 2474 – since to do so would be to suggest that (1) it’s OK to commit a serious crime – i.e., to break the law –  if there appears to be a general consensus that the criminalized behavior shouldn’t be a crime, and that (2) there will be no negative legal repercussions if one chooses to do so. The first proposition is morally problematic (at least coming from a state legislator); the second is simply untrue.

So it’s all kind of a giant mess, at least for these 170 kids and their families. And, full disclosure, I share responsibility for this mess, since I voted yes on this bill (just like every other member of the legislature), despite being aware of its shortcomings, because ….  I don’t know why, exactly. I guess partly because the bill had been worked out and agreed upon in advance by both House and Senate leadership, and partly because the bill could have been (and almost was) a lot worse,  and partly because the bill actually does “fix” the Nicoletto loophole. Mostly that last one, since in the days following the Nicoletto ruling I received several emails and calls from folks back home urging me to “protect Iowa’s children” by fixing the Nicoletto loophole … and while it was pretty clear to me that these folks were being fed a somewhat ginned up/misleading version of the whole situation by someone or some organization, none of them seemed particularly interested in listening to my explanation re why the majority of Iowa’s children – those under 16 years old – were already “protected” from predatory school coaches, and why it’s important not to pass a bill that hasn’t been fully vetted just to pass a bill, because that way be dragons (aka negative collateral consequences). The folks who contacted me just wanted something done, right now, and I’m sure that was the same message that leadership was getting, only more so  – and so, we did something. Yay. And while what we did solved one problem, it created others, including this really big problem for many teenagers across Iowa.  

So: if you are a young man or woman with both a coaching authorization and a sweetie in high school, you are faced with a very difficult choice due to the imminent ratification of House File 2474 – and it’s a choice that you need to make fast. You can either (1) keep your coaching authorization or (2) keep your sweetie. You can’t keep both, at least not legally. That’s it – it’s that simple, and while it’s incredibly unfair that for no rational reason you are being forced to make this (probably extremely difficult) choice, if you don’t make the choice (which, I suppose, is also a choice), you risk prosecution for a felony sex offense. Seriously, you really do. So talk to your parents and your sweetie, and do what you need to do. Or talk to a lawyer about this and follow his or her advice. Unless he or she tells you you’ve got nothing to worry about, in which case find a different lawyer. Or call me.

Of course, those of you reading this probably don’t fall into the relevant category, because for some reason I don’t seem to have a big following amongst the young adult crowd. And since so far there’s been very little publicity about this bill and this problem (although I suspect that’s going to change quickly), I’m worried about the possibility of teenagers being charged with committing a serious crime despite the fact that they have no way of knowing that they are doing anything illegal. So if those of you who are reading this can pass this along to any young people you know who you think might have a coaching authorization (or if you can pass it along to their parents or friends) that would be great.

Bottom line, to say that this is not a good situation is an understatement, but I know that the intent of the bill was never to jam these kids up like this, and I know many of my colleagues are as concerned as I am about this situation – thus, I sincerely believe that we will be provided the opportunity to “fix the fix” next year. But until then, it’s all about mitigating and minimizing potential damage to innocent teenagers – so thanks for any help with getting the word out.     

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Why I Voted No on the Kidnapping Bill (SF 2201)

So … yesterday the Iowa House passed Senate File 2201, An Act Relating to Kidnapping and Providing Penalties. I was one of three NO votes on the bill, and my mom told me I darn well better explain to everyone back home why I voted the way I did – so here goes:

There is a tendency for us – and by us I mean the Iowa legislature – to deal with our criminal justice system and the laws that make up that system in a largely reactive fashion – i.e., a horrible crime takes place and we quickly legislate a purported “fix” that is intended to prevent a similar horrible crime from happening in the future, or at least reduce the likelihood that a similar horrible crime will happen in the future. We draft and pass these bills in good faith, with the very best of intentions, often at the request of or with the support of a victim of one of these horrible crimes, or the family of a victim. Unfortunately,  as a result of operating in crisis mode so much of the time, over the years our criminal code and sentencing structure has evolved (or devolved) into an overly complicated, convoluted and often inconsistent entity – one that (in my opinion) focuses primarily on locking people up for as long as possible and ignores the fact that sooner or later, for better or worse, the vast majority of prison inmates are released back into the community.

Across the country, state legislatures have begun to accept that this type of strict “tough on crime” stance isn’t necessarily the best way to keep their people safe. Here’s a very detailed overview of early (2011) efforts at “smarter safer sentencing” reform; here’s a recent February 2014 article with updates re various states’ sentencing reform successes. Over the past several years it’s become relatively widely accepted that by focusing on an evidence based approach to criminal justice and sentencing laws, states can achieve  lower crime rates without increasing (and in many cases actually reducing) their Department of Corrections budget appropriations.

However, the only way this type of success story can happen is if all of a state’s relevant players – leaders from the legislative, executive & judicial branch, as well as reps from the DOC, DPS, law enforcement & community based corrections etc. – are willing to make a good faith, long term commitment to working together in a nonpartisan manner and (and this is crucial) promise to refrain from throwing each other under the bus at the first hint of problems. As a first step (kind of) towards such a partnership, the Iowa General Assembly, during its 2010 legislative session, created the  Public Safety Advisory Board (PSAB).

The PSAB is a nonpartisan organization made up of representatives from the judicial, executive, and legislative branches, as well as representatives of law enforcement, the Attorney General and County  Attorneys Association, the Public Defender, the Department of Corrections, the Department of Drug Enforcement, citizens, victims’ rights advocates, and others w/specialized knowledge of the criminal justice system. The PSAB’s statutory purpose- it’s raison d’etre – is to provide the General Assembly with research driven, evidence based analysis and evaluation of current and proposed criminal code provisions, in order to facilitate improvement in the criminal justice system in Iowa in terms of public safety, improved outcomes, and appropriate use of public resources.  I am a big fan of the PSAB – its very existence is an acknowledgement on the part of the General Assembly that being elected to public office doesn’t suddenly make one an expert on everything, and that when it comes to something as important as public safety, it makes sense to ask the experts for their opinion, and to give the experts’ opinions at least some consideration.  Of course, in the end the legislature can pass what it wants to pass, regardless of any recommendations by the PSAB – but at least we’ll have a better idea of the pros/cons/possible long term collateral consequences of whatever path we choose to take.

So anyhow, back to the Kidnapping bill …. in July of 2012, in response to the horrific crimes carried out by Michael Klunder (who abducted two little girls and murdered one of them), the Iowa Legislative Council (made up of the leadership of the Iowa House and Senate) asked the PSAB to evaluate the effectiveness of Iowa’s current kidnapping laws, and also to provide specific proposals for legislation to increase the DOC’s ability to keep predators like Klunder locked up. At the time, I was impressed and encouraged by the fact that instead of drafting up a bunch of bills that simply quadrupled the penalty for all kidnapping offenses, leadership was willing to seek nonpartisan, evidence based advice on how to best improve the system, and I really looked forward to reading the PSAB’s report.

Which I was able to do in January of this year, when the PSAB submitted its 35 page report on Iowa’s kidnapping laws to the Legislature. (It starts on page 84 of this PDF document)   The report contains a detailed analysis of Iowa’s kidnapping laws as well as an interesting discussion of the Klunder case; it also contains several recommendations re possible options for amendments to current law, which recommendations are supported by extensive data and research and which were approved by vote of the PSAB after considerable discussion.  Two of these recommendations are embodied in Senate File 2201 – increasing the penalty for non-custodial child kidnappings (from a C felony to a B felony) and enhancing the penalty for repeat kidnappings. Now, I’m not convinced that simply bumping penalties up a level is the best way to keep Iowans safe, but …. I recognize that SF 2201 is the product of a nonpartisan, evidence based attempt to address a serious problem, and so I was prepared to vote yes on the bill when it came over to the House after being voted out of the Senate unanimously.  (Here’s the Senate’s version of SF2201).

Unfortunately, when SF2201 ran in the House, an amendment was attached that, among other things, contains a provision that eliminates earned time for some prison inmates convicted of some crimes, but only if the victim is below the age of 16.  This was NOT a recommendation set out in the PSAB report, probably because it really doesn’t have anything  much to do with kidnapping;  thus, the effectiveness of such a change in the law – and the possible negative collateral consequences of instituting such a policy on a piecemeal basis – has not been researched or evaluated by anyone.

And that vetting process really needs to happen, because several years ago a majority of the Iowa General Assembly voted in favor of creating the current DOC earned time policy, and the Governor signed off on it – and I have to assume all those public servants acted in good faith and for valid reasons. I don’t know all of those reasons, and I don’t know whether or not those reasons are still valid, and neither does anyone who voted in favor of the amendment, because no one who would have that information was ever asked to comment on the amendment, at least not officially. What I do know is that Iowans would be better served if we allow the PSAB to do its job, and provide the legislature with a nonpartisan evidence based analysis of the pros and cons of Iowa’s current earned time policy, as well as recommendations as to whether and in what manner it should be changed.  Because as much as I wish it wasn’t the case, when it comes to the criminal justice system, sometimes the easy fix isn’t the best fix, or even a good fix. Sometimes straightforward “common sense” policies actually end up making Iowa a less safe place to live –  e.g., the 2000 foot residency restriction for sex offenders, which was eventually amended based on evidence that the law actually made sex offenders more difficult to monitor

So that’s why I voted no on the Kidnapping bill – not because I don’t agree that we need to protect our children from predators, but because the House’s version of the Senate’s bill contains an amendment that hasn’t been vetted by anyone who actually works in, or with, or has any level of expertise re, our criminal justice system … and I believe that we owe it to everyone involved (including the people of Iowa) to do our due diligence before we do away with (kind of, sort of, for some inmates) a major component of DOC policy.

And hopefully we’ll have an opportunity to do our due diligence: SF2011, as amended by the House, has been sent back to the Senate, and the Senate can either accept the amended bill or “insist” on its own version (i.e., the one that doesn’t include the provision eliminating earned time for a limited number of inmates/crimes). If the Senate insists on its version,  the bill will eventually end up in a conference committee composed of members of the House and Senate, who will try to reach an agreement as to what the ultimate bill should/shouldn’t contain.  Assuming that happens, I hope what emerges is the Senate’s version of the bill, with the addition of a provision directing the PSAB to provide the General Assembly with a detailed report that analyzes and evaluates  Iowa’s current DOC earned time policy and its efficacy, including recommendations re what changes, if any, should be made to Iowa’s laws dealing with earned time.

And I assure you of this: if that PSAB report concludes that Iowa’s earned time policy is no longer serving any valid purpose, I’ll be the first one to vote to eliminate it – but for all inmates, not just those inmates that victimize children. Because like every other member of the General Assembly, I want to pass responsible laws that make Iowa a safer place to live for everyone  – after all, everybody is somebody’s child, right?

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Last Night I Dreamt that Clinton Had a TV Station …

It was a good dream! And actually,  we do have a TV station, kind of – Mediacom Public Access Channel 18.  But as far as I can tell, there’s not much in the way of regular programming, right?  I know that the City Council meetings are televised, and some of the political forums, but today’s (Sunday’s)  lineup seems to consist of a constantly repeating notice of Clinton’s 2013 Large Item Pickup (and fyi, if you live on Route 4 – all residences North of and including Main Avenue – collection starts tomorrow, so set your dismantled swing sets and above ground pools out by your curb, but don’t even think of throwing an old refrigerator or giant TV into the pile). Large Item Pickup is important, no doubt – but there is so much more going on in Clinton, and how great would it be if Channel 18 programming was full of weekly segments featuring up to date info on local activities, kids, businesses, recreational opportunities, restaurants, people, volunteer groups, news, opinions … you get the idea.

We are always talking about the need to do a better job of selling Clinton to potential new residents/businesses – a local TV channel offering an ever changing variety of programs about Clinton people, places, activities, etc would be a great showcase for our town! Plus I bet lots of Clintonians would love to watch TV shows featuring people, kids, organizations,  and places they know – I sure would! And in a world where almost everyone seems to carry a video camera (aka cell phone) in his/her pocket/purse, acquiring current content shouldn’t be too difficult to arrange. Although I realize that the quality of cell phone video is often less than ideal, so perhaps Ashford or Clinton Community College or our local high schools’ AV teams would all be willing to provide part time access to quality equipment/lighting.

There are so many possible topics for programs! Maybe a bi-weekly 15 minute segment on a different Clinton County business. A weekly local restaurant review. A “shop local” segment featuring a local retail establishment, or a local farm that provides food to local restaurants.  A weekly (or daily) short segment on a local Clinton student who deserves recognition for whatever reason. A  weekly segment about a local Clinton County person of interest  – a “meet your neighbor” kind of thing. How about a weekly segment on “things to do this weekend in Clinton County”? Perhaps a short weekly segment from each (or at least some) of Clinton County’s elected officials answering a specific question or addressing a specific issue? Maybe a weekly segment on one of Clinton’s many volunteer groups – to give these groups some justified recognition but also to encourage more members. A segment on local school and club sports teams/players/coaches/etc would be interesting.  A segment on Clinton’s historical buildings/landmarks, featuring a different one each week (lots of possibilities on this Facebook page…) A weekly segment on local music and musicians, and/or one on local artists of all types.  A weekly segment on upcoming events for kids and adults at our fabulous public library would be great.

Clinton residents with expertise on a specific topic could volunteer to be in charge of the weekly segment on that specific topic _ e.g., the Teglers could do the weekly segment on local music/musicians (haven’t asked them, just an example – but they’d be great, right?).  We could have a Channel 18 Facebook page with current info on programs and schedules, and info on how to get involved, and links to the program segments themselves, and a place to leave feedback. People love to leave feedback!

Someone, or a group of someones, or a specific organization, would have to be in charge, I suppose – in charge of working w/Mediacom, setting up the programming schedule, approving topics, arranging for studio time – maybe CCC or Ashford could help with that (I’d think running this type of project would provide great real world experience for students interested in going into broadcasting and related fields). Since I’m in Des Moines working at the State Capitol about half of the time I’m just not in a position to take the lead on this  – but I really want it to happen, and I do want to help! So I’m throwing the idea out into the blogosphere in the sincere hopes that  many of my fellow Clintonians will give it some thought, and that maybe those of us who are interested in helping to make something like this happen can all get together sometime in the not too distant future. What do you think? Good idea? Bad idea? An idea that you want to help make happen? My friend Tim Gunn’s on board! (OK, not really, I just find this picture amusing …)

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Nov. 12th Clinton Town Hall Meeting with Iowa Insurance Division

This Tuesday, November 12th, at Clinton Community College beginning at 6 p.m., I will be co-hosting a town hall  meeting with the Iowa Insurance Division (IID) focusing on the Affordable Care Act (aka the ACA, aka OmabaCare) and how it might impact actual real-life Clinton County residents.  Originally, the IID wasn’t scheduled to do a community meeting here in Clinton – the closest one was in Davenport – but I called and asked and (somewhat to my surprise) they immediately said “Sure, no problem” … so big props to the IID for that.

Representatives from the IID will discuss new health care coverage requirements, the Insurance Marketplace/Exchange, tax credits and subsidies that may be available,  and other related topics. A representative from the Department of Human Services will discuss the transition from IowaCare to the Iowa Wellness and Marketplace Choice Plan  – Iowa’s version of  “Medicaid expansion” – which go into effect January 1st.  A Clinton County representative of the Marketplace Navigator program will explain how a certified navigator can help you figure out which of the health care plans available on the Exchange is best/most cost effective for you and your family.

So if you do not currently have health insurance coverage, or if you are covered by Iowa Care (which for all intents and purposes no longer exists), you should definitely attend this meeting, because (1) the ACA requires that you have health insurance coverage as of January 1st and (2) depending on your income, coverage may cost you little or nothing.  If you do currently have health insurance coverage through a private (non-employment related) plan, you should also definitely attend this meeting – you’ve likely received a letter warning you about the big increase in premiums you can expect due to the ACA, and the IID will have information about this, and about alternative (possibly better/less expensive) options available to you through the Exchange.

What if you currently have health insurance coverage through your employer  – does the ACA impact you? Any reason for you to attend this meeting? Yes and yes, probably .  Depending on the cost of the least expensive self-only coverage available to you through your employer, you may be able to find better, less expensive coverage through the Exchange. And even if that’s not the case, one never knows what the future may bring – information learned at this meeting will be helpful if your employment related insurance coverage suddenly becomes unavailable.

I really hope that a lot of  Clinton County residents attend this meeting. There has been so much understandable fear/confusion/anger surrounding the ACA – some of it due to real problems that desperately need to be fixed (here’s one), some of it due to misinformation and/or deliberate fabrication that is being disseminated by people on both sides of the issue (there’s an example of that). The speakers at Tuesday’s presentation won’t have all the answers – no one does, at this point – but they have more expertise on these issues than most of us do, so I am really looking forward to their presentation.

Finally, to avoid any misunderstandings, let me clarify that this meeting is NOT intended to be a debate on the pros and cons of  ObamaCare – e.g., whether the ACA is a good law, whether it should be repealed, whether the rollout of the Marketplace Exchange was mishandled (that’s a given), whether there are provisions of the ACA that desperately need to be amended (also a given). The ACA is a federal  law, not a state one, and no one has to like it but everyone has to live with it, at least for now, and that’s what this meeting is about – how to live with the ACA. This meeting is intended to explain some of the most important rules, and to provide accurate information about some of the benefits of the ACA and how to access those benefits, so that the Clinton County folks who are eligible to take advantage of these benefits are able to do so in a timely manner.

There are many problems with the ACA and with the Exchange website that need to be resolved quickly, in order for the ACA to be viable, and there are thousands of people in DC and across the country working on doing just that. But ultimately, it will be up to the federal  leadership of both parties to ensure that the necessary curative amendments move forward. Congress can make the ACA better and make it work, or they can refuse to fix it and let it blow up  – personally (like Tim Gunn), I prefer the “make it work” option, and I sure hope that a majority of Congress agrees with me.

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Why I voted YES on the (much) less than perfect Medicaid Expansion compromise

NOTE:  I actually wrote this way back on May 24th, the day after we passed the so-called “Medicaid Expansion” compromise bill.  But I never finished it, because I was waiting until we got more information on exactly how the whole mess plan would work – but we are still waiting on that, and waiting on approval from the Feds, so I decided to go with what I have. Which isn’t much.  Although here are links to two summaries of the plan – and while one is by the Iowa Medical Society and the other is by DHS, neither of which are particularly objective reporters, I found them somewhat informative:

Health and Wellness Plan Summary.pdf

DHS Health and Wellness Plan overview.pdf

_______________________________________________________________________

Yesterday (May 23rd) the Iowa Legislature passed Senate File 446, which started out as the Health and Human Services Budget bill but which was amended to include legislation creating a state-wide “Health and Wellness Plan” – let’s call it the HeWeP for short – that is intended to provide health insurance coverage to approximately 158 thousand low-income Iowans who cannot currently afford private health insurance coverage but who for some reason do not qualify for Medicaid coverage.  The HeWeP was the result of  last minute, closed door negotiations between members of House and Senate leadership and the Governor – the Senate was provided with info on the compromise early Wednesday afternoon and most of House didn’t get the details until about 9:30 p.m. Many of us were  shocked and dismayed to discover that the basic structure of the “compromise” plan is much more akin to the Healthy Iowa plan (aka TerryCare) originally proposed by the Governor than to strict Medicaid Expansion, which is what the Senate (and the majority of health care and social justice type organizations) had originally supported.

I have many concerns with the HeWeP, and I have absolutely no doubt that simply expanding Medicaid would have resulted in more Iowans being covered at a lower cost to the State – but I voted Yes on SF 446 anyhow – in short because, at the end of the day, it does some very good things (see below) and because it was better than letting the Governor negotiate Iowa’s response to the ACA mandate directly with the Federal government, which is what could have happened had the Legislature gone home without passing anything.

So … Tell me all about the Iowa Health and Wellness plan!

Sorry, no can do, because even though I insisted on reading the all of the portion of the HHS bill that sets out the structure of the HeWeP before voting on it (seriously, there was a big push for the House to debate/vote on the bill Wednesday night, even though we were provided with the sixty page summary of the bill – not the bill itself, just a summary – less than two hours prior to our midnight voting deadline! I.e., before any of us had actually read the summary! Much less the bill!), it’s short on details and parts of it just don’t make sense. But I’ll tell you what I (kind of, sort of) know:

Is the Health and Wellness Plan actually Medicaid Expansion?

Yes and no. The HeWeP is being billed as “Medicaid Expansion” because even though the folks covered under the HeWeP aren’t going to be covered by “regular” Medicaid, Iowa is accepting Medicaid dollars to fund the plan. So unlike the Governor’s original proposal (TerryCare), which would have required a lot of State money and which would have triggered an increase in  property taxes state-wide, the HeWeP takes full advantage of the federal funds available under the ACA – during the first three years the plan is in operation, the Feds will pick up 100% of the cost of expanded coverage (after that it’s a 90/10 federal/state split, which is still better than regular Medicaid). So that’s a good thing – but one of the primary “pluses” of covering this group of people by simply expanding Medicaid eligibility was the fact that we know how Medicaid works and the state wide mechanism to deliver Medicaid benefits is already in place. In contrast, the HeWeP’s delivery mechanism is complicated, confusing, and parts of it don’t even exist yet.

So – the HeWeP expands the number of Iowans who are eligible to access federal Medicaid dollars to cover health insurance coverage, but the coverage they are able to access, and the conditions they will have to comply with in order to maintain that insurance, will be different.

Who Will be Covered under the Health and Wellness Plan?

1.   The HeWeP will provide health insurance coverage “comprable to what State employees get” (whatever that means), free of charge, to the approximately 68,000 uninsured Iowans whose household income is less than 100% of poverty (about $11,000 for a one person household) and who are currently ineligible for Medicaid (because they aren’t caring for a child, pregnant, over 65, or blind or disabled). This is a really big deal, both for Iowa and for Clinton County.

2.  The HeWeP will also provide access to health insurance coverage to an Iowan – say, Bob- who has household income between 101-138% of poverty (up to about $15,500 for one person). Bob will hypothetically be able to choose between various health insurance plans offered through Iowa’s Insurance Exchange (hypothetically because so far no the insurance exchanges aren’t yet operating) and for the first year of coverage, Bob’s premiums will be paid by the government using federal Medicaid funds.  And IF Bob participates in certain “wellness activities,” Bob’s insurance premium will continue to be paid in full during the second year of coverage. Probably.

What are these “wellness activities”? Nobody knows … but presumably they’ll include things like annual check ups, maybe a requirement that smokers quit smoking, maybe a requirement that obese people lose weight or participate in a fitness program.  If Bob does NOT participate in the recommended wellness activities, then in order to maintain insurance coverage Bob will have to pay a monthly  premium, which can equal no more than 2% of Bob’s annual household income (So if Bob earns $15,000 annually, his annual premium couldn’t exceed $300 – or $25 a month). Presumably if Bob doesn’t pay the premium, he will lose his coverage – how soon, and for how long, is unclear.

So unlike true Medicaid Expansion, which would have utilized the delivery mechanism already in place to provide all Iowans under 138% of poverty with the same coverage provided to current Medicaid participants, and which would have provided that coverage free of charge, the HeWeP creates a new and complicated program that could potentially provide coverage to the same number of Iowans, but the majority of those Iowans (it’s estimated that 80,000 to 120,000 of eligible Iowans will fall into the 101-138% group) will be required to either accomplish unknown wellness goals or pay a small monthly premium in order to maintain coverage.

The Governor refers to this requirement as “having skin in the game,” and insists that it will result in an overall healthier Iowa – the theory being that all of the folks in the 101-138% group will faithfully participate in the wellness activities (which will presumably make them healthier) because they’ll want to avoid being required to pay a monthly premium. Makes sense, right?

Well…. maybe it makes sense on paper, but I have concerns as to whether it will translate to real life.  We all know that we should work out regularly, and eat better, and stop smoking, and lose weight – but the majority of the general population doesn’t consistently do any of those things, right? Despite the fact that we know that by not doing these things, we are risking all sorts of unpleasant health and quality of life consequences. I tell myself all the time that if I just started working out on a regular basis, I would feel better and be healthier – but I don’t work out, ever. Even though I have a relatively flexible work schedule, and I belong to a gym, and own all sorts of shoes and clothing specifically designed to facilitate working out, and I know that I would feel physically and emotionally better if I worked out, and thus my quality of life would improve. I intend to do it, I really do – in fact, almost every day I tell myself that tomorrow is going to be the day I start working out – but … I don’t.

And the people who will be required to jump through the as yet undefined hoops so as to be able to continue to be eligible for health insurance coverage are the working poor – i.e., they are employed and earning more than 100% of poverty but less than 138% of poverty. The majority of folks that I represent in court fall into the “working poor” category, and let me tell you – these people live hard lives, and they often have not very enjoyable jobs at which they have to work really hard to make not very much money, and they are often dealing with extremely stressful home lives (because limited financial resources tend to make everything more stressful) – and they tend to be pretty darn exhausted most of the time. And sometimes when one is really exhausted one doesn’t pay as much attention as one should to things like routine medical check ups and monitoring one’s blood pressure. So I really wish that I could tell this group of people “Hey, guess what, you are going to be covered by Medicaid starting January 1st!”  instead of “Hey, guess what, starting on January 1st you may be able to purchase health insurance coverage online, and the government will pay for it for a year or two so long as you follow all the rules, but if you don’t follow all the rules the government won’t pay for it – and by the way, we’re not sure what the rules will be, but we’re working on them.”

So, in summary:  I voted for the Health and Wellness Plan because when and if we are able to fix the problems with it and get it up and running, it will provide health insurance coverage for a lot of Iowans who would otherwise find it difficult if not impossible to obtain coverage. It is far from perfect, and it could have been so much better, but it is the best we could do –  and in the coming session, I promise to work with my colleagues to  do what I can to help make it better.

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Sallee v. Stewart and Iowa’s Recreational Land Use Immunity Doctrine

There have been many questions/concerns raised by the Iowa Supreme Court’s recent ruling in Sallee v. Stewart, in which the Court was asked to interpret Iowa’s Recreational Land Use Immunity doctrine. Like most of my colleagues, I’ve read the relevant court cases and studied the applicable statutes, and I’ve reviewed  House File 605, the Farm Bureau’s proposed bill intended to fix the “crisis” allegedly created by the Sallee ruling – and like many others, I’ve concluded that the actual impact of the Sallee ruling on Iowa’s recreational land use immunity doctrine is minimal, and that the Farm Bureau’s proposed legislation is an over-reaction to Sallee’s extremely narrow holding.

What is Recreational Land Use Immunity

Ordinarily, if you invite people onto your land, you have a duty to use reasonable care to either ensure that the premises are in a reasonably safe condition, or to warn your guests about any dangerous condition that isn’t obvious to them but of which you are, or should be, aware. And if you don’t do that, and someone gets hurt on your property, and if they sue you and can prove that their injury is due to your failure to use reasonable care – i.e., your negligence – then most likely your homeowner’s premises liability policy is going to be paying out for their damages. Mistakes happen, and that’s why we have insurance, right?

But back in the seventies, in order to encourage private landowners to make their land/water areas available to the public for outdoor recreational purposes, the Iowa legislature passed Iowa Code Chapter 461C, which decreed that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” 461C.2 defines “recreational purposes” as: hunting, trapping, horseback riding, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycling, nature study, water skiing, snowmobiling, other summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites while going to and from or actually engaged therein.

So the general idea behind Iowa’s Recreational Land Use Immunity Doctrine is that if folks choose to take advantage of a landowner’s generosity and enter onto his (generally unfamiliar to them) land to engage in any of the “recreational activities” set out in 461C.2, they do so at their own risk, and the landowner cannot be held responsible for any injuries related to a dangerous condition of the land (e.g., if a hunter trips over a hidden tree stump) unless the landowner acts “willfully or maliciously” (e.g., invites a group to set up camp in a specific field and fails to warn them of the fact that the field is known by the farmer to be completely infested with a rare and very poisonous type of tiny ant).

OK – so what happened in the Sallee v. Stewart case?

 The Stewart family owns a dairy farm in Northeast Iowa, and often provided groups of students with (free of charge) guided tours of their farm. In May of 2010, Ms. Sallee was a chaperone for one such guided student tour, which ended with a visit to the barn’s hayloft to allow the children to play on and around the bales of hay stored in the hayloft.

Mr. Stewart accompanied the group to the hayloft – he assisted them up the ladder, and warned the children not to climb too high. Mr. Stewart did not warn or mention to the group the fact that some of the hay bales were placed on top of large holes in the floor, totally covering the holes from view (these “hay drops” were normally used to push hay down to the cows in the barn below). There was testimony that earlier in the day, while inspecting the hay loft, Mr. Stewart had stood on each of the bales of hay covering a hay drop to ensure its sturdiness; unfortunately, when Ms. Sallee (who was described in the ruling as a “large woman”) stood on one of these bales of hay, it collapsed under her weight and she fell through the floor, sustaining serious injuries.  Eventually, Ms. Sallee sued the Stewarts, and the Stewarts’ insurance company moved for summary judgment, citing Iowa’s recreational land use immunity doctrine.

How did the District Court rule in the Sallee v. Stewart case?

The District Court ruled in favor of the Stewarts’ insurance company, finding that Ms. Sallee was present at the Stewarts’ farm for a recreational purpose, and thus the Stewarts owed her no legal duty to ensure her safety and/or to provide her with any warning of the possible danger posed by the holes in the hayloft floor, even though Ms. Sallee couldn’t see the holes since the Stewarts had covered them up with bales of hay.

How did the Court of Appeals rule in the Sallee v. Stewart case?

Ms. Sallee appealed the District Court’s ruling to the Iowa Court of Appeals; its ruling  agreed with the District Court that in their capacity as landowners, the Stewarts enjoyed immunity from liability for Ms. Sallee’s injuries – but then went on to rule that nonetheless, Ms. Sallee had a cause of action against the Stewarts under a “negligent supervision” liability theory. The Court reasoned that by putting themselves in charge of where the tour group went and what the tour group did while on the farm, the Stewarts voluntarily assumed the role/status of “tour guides,” and as such they had a duty to warn Ms. Sallee about possible dangers associated with the tour-related activities of which the Stewarts were or should have been aware but which Ms. Sallee could not reasonably be expected to have anticipated.

How did the Iowa Supreme Court rule in the Sallee v. Stewart case?

The Stewarts appealed this ruling to the Iowa Supreme Court, which, somewhat surprisingly, issued a majority opinion that specifically declined to adopt the Court of Appeal’s “tour guide” liability theory, and instead held that Ms. Sallee had a right to move forward with her premises liability claim against the Stewarts for the simple reason that  “playing in the hay” was not one of the “recreational activities” set out in Iowa Code section 461C.2 –  and thus the recreational land use immunity doctrine did not apply under the specific facts of the case. And that’s really the complete sum and total of the Sallee holding: that “playing in the hay” isn’t a recreational activity for purposes of Iowa’s recreational land use immunity doctrine. Period.

Does Sallee reduce landowners’ protection under the recreational land use immunity doctrine?

In a word – NO. It’s true that in the long and somewhat rambling discussion of the origins and nature of the recreational land use immunity doctrine leading up to its holding, the Sallee opinion cites several appellate rulings in which courts from other states chose to interpret their own recreational land use immunity statutes in ways that restricted the scope of protection offered by those statutes –  but the Sallee opinion also cites rulings from states in which the appellate courts went the other way. And most importantly, in the end, our Court specifically declined to adopt any of the policy based holdings set out in any of these cases, instead issuing a very narrow ruling based solely on the unusual set of facts and circumstances surrounding Ms. Sallee’s injury. Thus, despite assertions to the contrary, the holding in Sallee in no way restricts or reduces a landowner’s protection under the recreational land use immunity doctrine if the landowner is allowing public entry onto his land for the primary purpose of engaging in one of the recreational activities specifically spelled out in 461C.2.

Do farmers have recreational land use immunity for guided farm tours?

After Sallee, there remains a question as to whether Iowa’s recreational land use immunity doctrine affords farmers immunity from liability for injuries that take place during a guided farm tour –  since while the Iowa Supreme Court declined to adopt the Court of Appeal’s holding that a landholder who chooses to guide a group of persons on a tour of his/her farm automatically forfeits this immunity, the Court also didn’t explicitly reject this theory. Seeking to do away with this uncertainty, the Farm Bureau has sponsored House File 605, which defines a “guided farm tour” as a “recreational activity” under 461C, and further clarifies that a landowner cannot be held liable for any injury incurred by a person participating in such a guided tour unless the injured person can prove that the injury was due to willful or malicious actions on the part of the farmer. The bill also expands the scope of a “recreational activity” to include “any activity undertaken for recreation, sport, exercise, relaxation, education or pleasure” – which pretty much encompasses all non-employment related activities, right?

What’s the problem with House File 605?

I’ve received many emails from many farmers urging me to pass HF 605 without amendment, and warning me that if we don’t pass it exactly as drafted,  children across the state will forever be deprived of the fun and educational experience of a field trip to a local farm. But I can’t vote in favor of HF 605 in its current form, and I sincerely believe that the majority of Iowans – including the majority of Iowa’s farmers – aren’t in favor of a bill that seeks to hold a farmer (or actually, the farmer’s insurance company) completely immune from liability even if a farmer leads a group of children or dependent adults directly into contact with a dangerous condition of which they could not possibly be aware, and then fails to provide them with any warning of, or protection from, the dangerous condition.

Following are just a few scenarios in which a farmer would be held immune from liability as a matter of law under HF 605:

1.         A farmer owns a dog who doesn’t like children, who has bitten a child in the past, and who generally hangs out in the barn in hot weather. The farmer knows all this, and thus typically locks the dog up when students visit the farm, but in the confusion surrounding the arrival of a large group of first graders it slips his mind – and so he marches the children into the barn to watch a cow being milked without first checking to see if the dog is in the barn and/or warning the kids to stay away from the dog. When some innocent little first grader goes to pet the nice doggy sitting next to the cow and gets her face eaten off, do we really want to tell her parents that sorry, the farmer can’t be held liable for their child’s permanent and severe disfigurement?

2.         Imagine the same facts as in the Sallee v. Stewart case, except this time it’s a kindergartener who suffers severe brain injury when the bale of hay on which he is playing (under the direction and supervision of Mr. Stewart) collapses, causing him to plummet through the hidden hay drop. Under HF 605, the fact that the child wouldn’t have fallen through the hay drop but for the fact that Mr. Stewart disguised it by putting a bale of hay on top of it and then instructed the child to jump on the bale of hay would be irrelevant – Mr. Stewart would have complete immunity, since he didn’t intend for the child to be injured.

3.         Finally, imagine a farm couple has invited a group of high school kids to tour their apple orchard and make apple cider. The farmer mistakenly sets the heating element on the cider pasteurizer way too high, and it explodes, blinding several of the teens. Again, even though it’s clear that the sole reason for the injuries is a major screw up on the part of the landowner, HF 605 would hold him immune from financial liability.

The common thread in the above examples is that the landowner has led or directed the child into contact with a dangerous condition created by the landowner of which the child could not possibly have been aware, and while I am sure that none of us would deliberately create a dangerous condition and then lead a group of children into the middle of it, mistakes do happen. And when a mistake has tragic consequences and causes permanent injury or death to a child or dependent adult, the insurance company representing the person responsible for making the mistake should be held financially liable for the mistake.

Is a compromise/resolution possible?

Absolutely! While legislating away any and all responsibility for our children’s safety is an unacceptable public policy, farmers who allow student groups the opportunity to visit a working farm provide a wonderful service to Iowa’s children, and in order to encourage farmers to continue to provide this service it’s appropriate to shield them from liability for injuries due to circumstances outside of their control (e.g., a child is bitten by a pig after ignoring the farmer’s warning not to pet said pig). To that end, legislators from both parties have been working together to pass a bill that will clarify a landowner’s rights and responsibilities with regards to guided farm tours, and clear up any confusion generated by the Sallee ruling and the (over) reaction to it. Like most compromises, I don’t anticipate that it will make everyone (or even anyone) particularly happy, but it should provide all relevant parties with adequate guidance and protection.

In the meantime, please don’t hesitate to contact me if you have questions, comments, or suggestions about any of this – it’s a complicated issue and I certainly welcome any and all input!

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