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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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

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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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House Judiciary Bills update – first week of February

Hi there. Last week I posted all of the pending House Judiciary bills that have been assisgned to a subcommittee through January 31;  here are the House Judiciary bills assigned to subcommittees the first week of February:

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Iowa House Judiciary Bills assigned to subcommittees first week of February

HF 109 [Beth Wessell-Kroeshell]:  A bill for an act relating to consideration of the educational setting of a minor child in a child custody proceeding

–  Creates a rebuttable presumption that it is in a child’s best interests to remain in the same educational setting if the parents (i.e. parents in a divorce/custody dispute) cannot agree otherwise.  Currently the judge ruling in a custody dispute is required to take all relevant factors into consideration when determining the child’s best interests, and the child’s educational setting would certainly be a relevant factor, so it appears that this specific concern is already addressed by current law.

HF 104 [Mark Smith]:  A bill for an act relating to the payment of reasonable attorney fees relating to an appeal of a termination of parental rights order

–   Currently, if a parent files a private termination of parental rights action and the Court appoints an attorney to represent the other parent (i.e., the parent who is in danger of having his/her parental rights terminated), then the parent who filed the termination action can be ordered to reimburse the State for the attorney fees paid to the attorney representing the other parent (unless the Court determines that the parent who filed the private termination action is indigent, which is usually not the case).  Under this bill, if the parent whose rights were terminated appeals the termination, the parent who filed the action would not be required to reimburse the State for the appellate attorney fees incurred by the other parent (but would still be required to reimburse the State for attorney fees incurred in the original termination proceeding).

HSB 100 [Tyler Olson]:  A study bill relating to the boards of directors of public corporations

–  This bill simply repeals the scheduled repeal of a current law that allows for the management of a public corporation by its board of directors.  If you’d like additional info on this bill, please contact Rep. Tyler Olson

HSB 104 [Rick Olson]:  An Act concerning prescription drug or controlled substance medication defenses in operating=while=intoxicated cases

–  Requires a defendant charged with operating while under the influence of drugs  to give notice to the State if the defendant intends to argue at trial that s/he had a valid prescription for the drugs in his/her system. I assume most defense attorneys already provide this information to the county attorney in advance of trial, in the hopes that the county attorney will then do the reasonable thing and dismiss the case without requiring the expenditure of time/money inherent in a jury trial.

HSB 105 [Mary Wolfe]:  A study bill relating to the sentencing of a minor who commits murder in the first degree, providing penalties, and including effective date provisions

–  Similar to HSB 33, except it creates a mandatory minimum sentence of 50 years before a person who committed a 1st degree murder as a juvenile would be eligible for parole (as opposed to the 60 year sentence proposed by HSB 33), and throws in some additional factors to be considered by the judge.

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House Judiciary Bills Assigned to Subcommittee through 1/31/2013

Greetings.

It’s three weeks into the 2013 legislative session, and so far there have been 35 bills assigned to House Judiciary subcommittee groups.  Each subcommittee is made up of three legislators – since the Republicans hold the majority in the House, Judiciary Chairman Chip Baltimore appoints two Republican judiciary committee members to each subcommittee and I (as the Judiciary ranking minority member) appoint one Democratic judiciary committee member to each subcommittee.  [Note that occasionally with very controversial or complicated bills the subcommittees are made up of five legislators - three Rs and two Ds - but no five person Judiciary subcommittees have been appointed to date].

[Slightly off topic, here's a picture of the entire House Judiciary Committee - although I am sure not fond of my photo and we just got new photos taken earlier this week so I'm looking forward to posting the revised version of this montage in the near future]

Normally each subcommittee meets at least once to discuss the proposed bill and to hear from interested parties. “Interested parties” include members of the group that sponsored the bill, members of the press, and lobbyists that represent any groups/businesses/ organizations that might be impacted – negatively or positively – by the bill.  E.g.,  lobbyists from the Iowa State Bar Association and the Iowa Association of Justice attend most Judiciary subcommittee meetings, and depending on the subject of the bill we might also have representatives from the Department of Corrections, the various state-wide law enforcement organizations, the Iowa Association for Civil Liberties, the Iowa Business Association, OneIowa, and the Iowa State Association of Counties, among many others.

After the three legislators on a bill’s subcommittee listen to whatever anyone has to say about the bill and (try to)  get answers to any questions he or she may have about the bill, each of them either signs the form moving the bill forward for full debate in the House Judiciary Committee, or declines to do so.  It takes two signatures to move a bill forward, and since House subcommittees are made up of 2 Rs and 1 D, any bills that the Rs want to move forward move forward, and any bills that they don’t want to move forward, don’t move forward (same thing happens in Senate subcommittees, only the Ds control over there so it’s reversed). That’s just the way it goes, and luckily, at least some of the bills that we deal with in Judiciary are non-partisan, so not all of the votes end up 2-1.

A list of all House Judiciary Committee bills assigned to subcommittee can be found here; it’s updated on a daily basis.  Note that there are bills that the Speaker of the House has assigned to the Judiciary Committee which Representative Baltimore has not yet assigned (and may never assign) to a subcommittee – the list of all bills assigned to the Judiciary Committee can be found here.

The subcommittee chart lists the bill number (with a hyperlink to take you directly to the bill), the name of the bill, the names of the Judiciary members assigned to the bill’s subcommittee, and the date(s) of any scheduled subcommittee meetings. Normally notice of a subcommittee meeting has to be posted at least 24 hours in advance so that lobbyists/special interests monitoring a specific bill have a chance to be present – however, it doesn’t always happen that way, which is unfortunate.

You will note that not all of the assigned bills have, as yet, been scheduled for a subcommittee meeting – there’s still plenty of time, but some of those bills may never get that far. The subcommittee’s chairperson (in the House, it’s almost always a Republican, in the Senate,  a Democrat) has a lot of power, since he or she can effectively “kill” a bill by simply refusing to schedule it for a subcommittee meeting – this is frustrating for legislators/special interests who really want the opportunity to have a public discussion/debate on a particular bill … but that’s politics.

March 8th (the Friday of the 8th week of session) is the first “funnel” date – this means that any House Judiciary bill that has not been passed by both its individual subcommittee and the Judiciary Committee as a whole is arguably “dead” for this session – i.e., it’s not eligible to be voted on by the entire House.  However, there are ways around that, so at least hypothetically no bill is ever truly dead until the Speaker declares the session over (which is supposed to take place on or before May 3rd, but which likely will take place several weeks later).

FYI, here’s a list of all bills assigned to a House Judiciary subcommittee through the end of January – I’ve included the name of the Democratic legislator I assigned to the bill, and if you want to know what happened to that bill or have any questions/suggestions/concerns about a particular bill you can contact him/her/me or comment below.  You can find contact info for individual legislators here; please put the bill number in the heading of your email.

Thanks for your support!

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BILLS ASSIGNED TO HOUSE JUDICIARY SUBCOMMITTEES THROUGH 1/31

HSB 5 [Dave Dawson]:  An Act providing access to child abuse record in juvenile court and the prosecution of certain juvenile offenders

-        Expands youthful offender program eligibility to include juveniles 16 and 17 charged with a forcible felony – currently only juveniles 15 and under are eligible. Sponsored by the Judicial Branch, and should be fairly non-controversial. Hopefully.

HSB 6 [Marti Anderson]:  An Act relating to interpreters and translators

-        Makes Iowa law conform w/federal Civil Rights Act by authorizing payment for interpreters in many types of proceedings and clarifying that this is free of cost to the person needing the interpreter (e.g., can’t be assessed as court costs against a criminal defendant). Non-controversial, probably.

HSB 7 [Dave Dawson]:   An Act relating to immediate return of seized property

-        Requires claimant requesting return of property (usually money, car, or a phone) seized by law enforcement to sign the application under penalty of perjury. This has already passed out of the Judiciary Committee 20-1

HSB 8 [Rick Olson]:  An Act relating to conducting condemnation proceedings

-        Relieves county attorneys from obligation to conduct condemnation proceedings involving “school corporations.” Since apparently there is no longer any such legal entity. This is what is called a “clean up” bill, intended to just bring code in line with reality.

HSB 9 [Beth Wessel-Kroeschell]:  An Act relating to authority of cities to regulate and restrict the occupancy of residential rental property

-        Enjoins cities from passing zoning laws that would restrict occupancy of rental property on the basis of familial relationships – i.e., a city couldn’t pass an ordinance that required landlords to restrict renters to family members only. Apparently some cities have passed such zoning ordinances, with the intent (I believe) of avoiding situations in which, say, ten students (with ten cars) rent out a two bedroom house in a family neighborhood and take over all the parking spots on the entire street and/or trash the house and thus lower the surrounding property values. It is completely understandable why cities/home owners would want such zoning laws ; however the concern is that such an ordinance might be written too broadly (e.g., might enjoin a family from hiring a live in nanny, or enjoin a single mom w/two kids from allowing her boyfriend to move in), and/or have a disparate impact on minority populations, who sometimes have a fairly loose definition of “family.”

HSB 10 [Vicki Lensing]:  An Act relating to the discharge of a firearm near buildings or feedlots by certified law enforcement officers for training purposes and providing penalties

-        This bill is basically intended to address a Cedar Rapids police department outdoor firing range (that is also used by surrounding cities/counties and the feds) that may or may not be located within 200 yards of some private homes, which may or may have been in existence prior to the existence of the firing range.  The bill would create an exemption from existing zoning laws for this firing range and any other law enforcement outdoor firing ranges currently in existence that is within 200 yards of a residence/feedlot (of which there aren’t any, as far as we could ascertain).

HSB 11 [Mary Wolfe]:  An Act relating to the waiting period before the granting of a decree dissolving a marriage

-        Iowa law requires a 90 day waiting period from the date the Respondent in a divorce is served with notice that a divorce petition has been filed, unless a judge waives the waiting period for good cause shown (which is usually some type of unavoidable emergency). This bill would allow (but not require) a judge to waive the 90 day waiting period upon agreement of both parties. Makes sense to me; however, we had the subcommittee meeting on this earlier this week and I predict that this bill is dead.

HSB 12 [Mark Smith]:  An Act relating to the possession of alcohol by certain minors and juvenile court jurisdiction

-        Addresses penalties for juveniles who provide alcohol to a person under 21.

HSB 13 [Jo Oldson]:  An Act relating to statute of limitation period in executing a judgment in an action on a claim for rent

-        Eliminates two-year statute of limitations for executing small claims judgment against renter for unpaid rent…. i.e., if you don’t pay your rent, and your landlord sues you and gets a judgment against you, the landlord can attempt to collect it forever (I think).

HSB 14 [Dave Dawson]:  An Act relating to county attorney duties when representing the dept. of human services in juvenile court

-        County Attorneys are currently required to represent the “state” in Child in Need of Assistance proceedings, with the state being defined as the Department of Human Services – this bill would remove DHS as a party to a CINA case and thus allow county attorneys discretion to prosecute CINA cases as they see fit. This bill has already passed the full Judiciary Committee, and will probably pass the House (it did last year), but may or may not move forward in the Senate (it didn’t last year).  Note that newly elected Rep. Dave Dawson helped draft this bill a few years ago in his (then) capacity of  county prosecutor, and did an excellent job of explaining the somewhat complicated bill to the full Judiciary Committee.

HSB 15 [Vicki Lensing]:  An Act relating to the administration of the judicial branch    including provisions pertaining to shorthand reporters and the practice of law

-       This is a clean-up bill that makes it clear that interpreters are required at every level and in every type of court proceeding if they are necessary, and that the cost of employing an interpreter cannot be assessed against the person utilizing the interpreter – the State has to pay

HSB 16 [Marti Anderson]:  An Act relating to the nomination and appointment of district judges

-        Requires district court judge to be a resident of the judicial district where the nomination occurred before assuming office.

HSB 17 [Dave Dawson]:   An Act relating to the appointment and removal of clerks of the district court

-        Allows the chief judge of a judicial district to appoint the district clerk of court (currently district court judges elect clerk) and fire the clerk (currently takes a majority vote of district court judges).

HSB 25 [Marti Anderson]: An Act relating to forfeiture of bail in criminal case

-        Increases time granted to whomever posted bail to set aside bail forfeiture from sixty days to ninety days – i.e., if a criminal defendant fails to show up for court, his/her family and/or the bondsman now has 90 days to hunt him/her down before the court clams the bail money posted by the family or bondsman. This bill has already passed Judiciary.

HSB 28  [Jo Oldson]:   An act relating to residential landlord/tenant laws and related forcible entry and detainer actions and providing penalties

-      Increases late  rent payment fees, re-defines various terms, amends several provisions in ways that benefit landlords.

HSB 31  [Vicki Lensing]:  An act requiring in-state construction contracts and disputes thereof to be governed by Iowa law

-      Voids any provisions in in-state construction contract that make contract subject to laws of another state or requires litigation in another state … makes sense to me.

HSB 32  [Mark  Smith]:  An act relating to penalties for the criminal offense of sexual exploitation of a minor by the purchases/possession of child pornography

-      Increases penalty for first violation of this crime from an aggravated misdemeanor to a Class D felony, second violation from Class D felony to Class C felony.  Defendant convicted of 2nd offense would now be subject to lifetime special sentence pursuant to 903B.1. The legislature sure does enjoy enhancing criminal penalties, even in the absence of any data that the enhancement will do anything whatsoever to make Iowa a safer place to live.

HSB 33 [Mary Wolfe]:   An act relating to the sentencing of minors convicted of murder in the first degree

-      Creates a mandatory minimum sentence of 60 years for a person who is convicted of Murder 1 for a murder committed prior to age 18; also allows judge to impose sentence of life without parole after making certain findings of fact as to why this is appropriate.  Note that the ISBA has a bill proposing a 45 year mandatory minimum.

HSB 34 [Mary Wolfe]:   An act relating to the practice/procedures of state public defender

-      Public defender’s omnibus bill; among other provisions, it includes one that would require local judges to at least take into consideration the proximity of an attorney to a defendant when appointing contract attorneys to represent indigent defendants.

Each county has a list of attorneys who have contracted with the State Public Defender’s office to represent indigent criminal defendants (at a rate of $60 an hour) in cases the Public Defender cannot handle. An attorney isn’t required to have an office in the county seat (i.e., the city where the county courthouse is located) or even in the county itself to be eligible for the list, and under current law the judge is supposed to appoint the attorneys on a strict rotational basis, taking into consideration only “the experience of the lawyer and the difficulty of the case.”  In some counties this means that there are dozens of attorneys on the list that live and work outside of the county, who must drive sometimes long distances to meet with their clients and/or attend court hearings, and who are appointed to cases at the same rate as attorneys who live and work in the county.

This bill would require judges to at least consider giving local counsel priority when appointing an attorney for an indigent defendant, which is a good thing for several reasons. First, it’s fiscally responsible give priority to local contract attorneys, when local counsel is available. Out-of-county attorneys bill the State .39 for each mile they drive to/from the county in which they were appointed to meet w/their client or attend a court hearing/deposition or any other case related proceeding.   This adds up — in 2012 the Public Defender paid contract attorneys over $700,000 in mileage reimbursement alone. Since defendants are required to reimburse the State for all fees paid to their court appointed attorneys,  indigent (i.e., poor) defendants given out of county contract attorneys get hit with an additional mileage fee that defendants provided with local contract attorneys aren’t required to pay -  sometimes this amounts to hundreds of dollars over and above the fee for legal services. And since the Public Defender’s Office estimates that only about 10% of all contract attorney fees are actually collected (which isn’t too surprising, since we’re talking about poor people here), in the end it’s the State that is on the hook for all that mileage – i.e., for at least $630,000 of the $700,000 plus paid out in 2012 mileage reimbursement.

Appointing local counsel when possible is also more conducive to effective attorney/client communication. I am sure that out-of-county attorneys do the best they can to initiate and maintain contact with their clients, but again, people who have court appointed attorneys are generally poor, and they can’t afford to be driving 30/50/100 miles to/from meetings with their attorney. Sometimes a phone conference can be arranged – but a phone conference is simply not the same as a face to face meeting, not to mention that sometimes the defendant doesn’t have a phone, or has a phone number that is frequently not in service, or can’t reach the attorney by phone. And when a defendant is sitting in jail, s/he needs to meet with his/her contract attorney ASAP – a local attorney can get to the jail within a few hours of being appointed, while due to logistics it can take an out-of-county attorney considerably longer to make the trip.

Finally, Iowa’s rural and small town attorneys are a threatened species, and allowing the court to at least consider giving local counsel priority in court appointed cases should provide them with some much-needed support.  Back when I graduated from law school (1992), judges generally didn’t appoint out of county attorneys to criminal cases, and the fact that I knew that there weren’t many attorneys in Clinton handling court appointed criminal cases and thus  I would be able to obtain a lot of trial experience handling a lot cases while earning (just barely) enough money to pay my overhead was one of the reasons I decided to return to practice law in small town Clinton after I  graduated from law school – the other (bigger)  reason is that it allowed me to work with my mom and dad, but I wouldn’t have done it if I hadn’t been sure of a fairly steady source of income from court appointed cases. Currently, a new attorney can set up shop in Davenport or Dubuque and pick up just as many court appointed cases as, say, my dad, who has live and worked in Clinton forever – so there’s a lot less incentive for a new attorney to set up shop in Clinton, or other rural county seats.  So along with being fiscally responsible and fostering improved attorney/client communications, the provision in this bill requiring judges to at least consider giving priority to local counsel in court appointed cases will hopefully provide a little support for those attorneys who have chosen to live and work in Iowa’s more rural areas, and might just encourage a few new attorneys to do the same.

HSB 35 [David Dawson]:  An act relating to conformity with federal law concerning unemployment insurance employer charges and claimant misrepresentation

-      This is a Workforce Development bill that hits employers w/certain penalties if they don’t cooperate with and/or if they misrepresent info during  Department’s investigation into  payment of benefits. Designed to encourage employers to take the Departments requests for info seriously, which will arguably allow the Department to process unemployment claims in a more timely and efficient manner.

HSB 36 [Rick Olson]:  An act relating to certificate of merit affidavits

-      (One of ) the Governor’s proposed tort reform bill(s); would require that within a certain relatively short time after filing a medical malpractice suit, the plaintiff (i.e., injured party, or the family of the injured party if the injury was fatal) would be required to file a statement by a doctor swearing that the lawsuit has merit. This is, realistically, a doctors vs. lawyers bill, and various versions of it have been filed in prior years, and representatives from both sides have been working for at least a few years to try to come up with a compromise. Maybe this is the year. Probably not, but maybe.

HSB 37 [Marti Anderson]:  An act relating to transmission of court records by the clerk of district court to clerk of supreme court in an appeal

-      This is a clean up bill clarifying who does what when an appeal is filed

HF 57 [Mary Wolfe]:  A bill for an act relating to the justifiable use of reasonable force and providing a remedy

-   The infamous “Stand your Ground” bill – last session this passed the House on a straight party line vote (except for maybe Brian Quirk), then died in the Senate – as it would if it moves out of the House this year.  Here’s a post I did on last session’s version of the bill; if it moves forward this year I’ll update that analysis to incorporate any new info/data.

HF 58 [Marti Anderson]: A bill for an act relating to child support obligations and neglect or abandonment of a child based on nonsupport, and providing penalties

-  A non-custodial parent who is $2,000 behind on child support could be convicted of an aggravated misdemeanor, $10,000 or more behind would be a Class C felony. Also creates a mandatory minimum support obligation of $100 a month.

HSB 60 [Jo Oldson]: A study bill relating to the failure to wear a motor vehicle safety belt or safety harness or use a motor vehicle child restraint system

-    This is a tort reform bill – currently a defendant in an auto accident personal injury case is not allowed to bring up the fact that the plaintiff wasn’t wearing a seat belt at trial – instead, if the plaintiff was not, in fact, wearing a seatbelt at the time of the accident, the judge automatically deducts 5% from whatever damages the jury awards to the plaintiff.  This bill would allow defendant to argue that plaintiff was at least in part responsible for his/her injuries if s/he wasn’t wearing a seatbelt, if the defendant can first prove to a judge that the fact plaintiff wasn’t wearing a seatbelt was a contributing factor in plaintiff’s injuries. The concern is that at least some members of a jury would be inappropriately prejudiced against an injured automobile accident victim if they were informed that the victim wasn’t wearing a seatbelt, and “punish” the victim by not awarding any damages, even if it’s clear that the defendant was primarily at fault and thus the victim is clearly entitled to at least some recovery.

HF 67 [Dan Dawson]:  A bill for an act relating to elimination of the authorization for a court to order the payment of a postsecondary education subsidy in dissolution of marriage proceedings

- This bill, which I sponsored along with Rep. Rick Olson, does away with the provision in current Iowa law that allows a judge to order the divorced parents of an adult child to pay up to 1/3 of the cost of his/her secondary education expense. I filed the same bill last year and it went nowhere; there’s no subcommittee meeting scheduled yet, so that doesn’t bode well for the bill’s future this session.   Here’s a post from last year explaining my position; I could do a better job now but don’t want to waste my time if the bill is dead.  So stay tuned.

HF 72 [Jo Oldson]:  A bill for an act providing for an exception to municipal tort liability for claims arising from sledding on municipality-controlled property

-  This bill grants cities immunity for injuries that occurr on “sledding hills” under certain circumstances.

HF 73 [Vicki Lensing]:  A bill for an act relating to optional permits to acquire firearms and to permits to carry weapons and providing a penalty

OK, here’s what the official summary says about at least part of this bill:  Current law provides that any person who intends to purchase a pistol or revolver is required to first obtain an annual permit to acquire pistols or revolvers unless the person is otherwise exempt from obtaining such a permit.  The bill eliminates this type of mandatory permit and provides instead for an optional permit to acquire firearms in order to satisfy the requirements of federal law allowing the holder of such a permit to acquire firearms from a federally licensed firearms dealer.  A person is not required to obtain a permit to acquire firearms to purchase firearms from a federally licensed firearms dealer if the person possesses a valid permit to carry weapons issued in accordance with Iowa law or if the person has otherwise completed a satisfactory national instant criminal background check required by federal law to purchase firearms from a federally licensed firearms dealer.

I have not yet worked through quite what all that actually means, and whether it makes the law better or worse, or makes Iowa a safer or more dangerous place to live.  Vicki and I will work on figuring it out prior to any subcommittee meeting , and we’d certainly appreciate any assistance from any of you.

HF 74 [David Dawson]:  A bill for an act relating to the regulation of firearms and ammunition in a state of public emergency and providing a remedy

-    under current law, if the Governor delcares a state of emergency he has authority to   restrict the use of firearms and even confiscate firearms from private citizens; this bill removes the Governor’s authority to do this.  I’m actually good with this bill, I do believe. Or at least most of it. If for no other reason than I don’t want my brother the police officer to be required to attempt to collect guns from folks who have absolutely no intention of allowing them to be collected. Because Kevin has four children and a lovely wife and they would prefer to have him stay alive, as would I.

HF 75 [Marti Anderson]:  A bill for an act relating to the disposition of legal firearms and ammunition seized by a law enforcement agency

-   if I’m reading it correctly, this bill allows the seizing agency (e.g., the local police or sheriff department) to keep any legal weapons seized and/or to sell them and keep the money. Currently, if seized firearms/ammunition are worth more than $500 they have to be turned over to the Dept. of Public Safety, and if they are sold the money has to be turned over to the State general fund. So … on the one hand, I’d just as soon keep things local, but would this bill encourage local law enforcement to seize more firearms, since now they can keep them all? Hmmm…..

HSB 80 [Beth Wessell-Kroeschell]: An Act relating to the transfer of real estate and the filing of a mortgage release certificate, providing for a fee, and making remedies applicable

-   this bill has something to do with real estate transfers …. to be honest, at the moment that is the best I can do.  I note that the Bar Association has registered in favor of the bill and the Bankers are undecided …. whatever that means.

HF 81 [Mark Smith]: A bill for an act concerning the confidentiality of certain information relating to holders of nonprofessional permits to carry weapons and permits to acquire pistols and revolvers

-   This bill would require County Sheriffs to keep the lists of folks granted permits to carry weapons and/or acquire firearms confidential. Would appreciate constituent feedback on this one.

HJR 4 [Rick Olson]: A joint resolution proposing an amendment to the Constitution of the State of Iowa relating to an individual’s right to acquire, keep, possess, transport, carry, transfer, and use arms

-    So called “2nd Amendment” bill – language of bill is much broader than US 2nd Amendment and would arguably render any restrictions on firearms unconstitutional. This bill has not yet been scheduled for a subcommittee meeting.

Last year the House Public Safety Committee (which is the committee in which all the gun bills ran last year, and in which none of the gun bills are running this year – go figure), of which I was and am a member,  actually passed an amended version of this bill with language identical to the “real” 2nd Amendment, and which would have passed in the Senate and presumably have been signed into law by the Governor. However, when the bill ran in the full House the majority party stripped out that language and substituted their original, broader language, despite the fact that they were well aware that by doing so, they were killing the bill in the Senate. Their choice, I suppose – maybe they’ll make a different one this time around.  Here’s a post explaining that whole mess in a little more detail.

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