Judiciary Committee Report – Week 11, 2019

SF 112 is a Bar Association proposal that would allow any current trustee or an attorney for a current trustee to sign off on and execute certification of trust documents in lieu of the requirement that all trustees sign off on the certification of trust documents. A certification generally is a summary or quotation of selected parts of the trust. Under the bill, the trustee or attorney for the trustee who signs the certification of trust must be sworn under penalty of perjury. A certification allows a person or entity to know the correct name of the trust and to be sure that the trust has power over its assets. A certification usually does not identify the beneficiaries or the assets, so that information is kept confidential. This legislation will streamline legal processes and facilitate transactions while maintaining privacy.
[3/21: 46-0 (Absent: Bisignano, Celsi, R. Taylor; Vacancy: Danielson)]

SF 343 – Traffic camera ban

SF 343 bans traffic cameras in Iowa. The bill prohibits the state or any political subdivision from using an automated or remote system for traffic-law enforcement. Provisions in the bill include:

Automated or remote system for traffic-law enforcement is defined as a camera or other optical device designed to work in conjunction with an official traffic-control signal or speed-measuring device to identify vehicles breaking the traffic laws and to issue citations by mail or electronic means.
Prior to July 1, 2019, local authorities must discontinue using automated or remote systems for traffic-law enforcement and must remove any equipment.
Effective July 1, 2019, all local ordinances authorizing the systems are void. However, any citation issued or mailed prior to July 1, 2019 is not invalid.
The bill is effective upon enactment.
[3/26: 30-19 (No: Bisignano, Bolkcom, Boulton, Celsi, Dawson, Dotzler, Giddens, Hogg, Jochum, Kinney, Kraayenbrink, Lykam, Mathis, Petersen, Ragan, J. Smith, T. Taylor, Wahls, Zumbach); Absent: Breitbach)]

SF 364 – Iowa sobriety and drug monitoring program – 24/7

SF 364 is intended to fix issues with the 24/7 Sobriety pilot program that passed in 2017. The bill sets a minimum of 90 days that a person must participate in the program. Current law does not set any minimum. In addition, the bill requires that the last 30 days of participation must be without a failed test. The bill also extends the sunset date for the pilot program by two years to July 1, 2024, as it has taken an extended time to get the program up and running. Woodbury County is the first pilot county and they are scheduled to begin their program this spring.
[3/25: 50-0]

SF 392 – Sexual misconduct by a peace officer

SF 392 makes it a crime for a peace officer to have sexual relations with an individual, including a juvenile, who is in the peace officer’s custody. Current law makes it a crime for a peace officer to have sexual relations with someone who has been placed in a juvenile detention facility, jail or prison, or under the supervision of community based corrections. However, there is no law that prohibits sexual relations with a detained person who has not yet been taken to a facility. The bill makes it a “D” felony, which is punishable by up to five years in prison and a fine.
[3/27: 48-0 (Absent: Breitbach, Nunn)]

SF 448 – Consent agreements for domestic abuse and sexual abuse civil protective orders

SF 448 authorizes a court to issue consent agreements for domestic abuse and sexual assault civil protective orders without a finding of domestic abuse or sexual assault. Iowa law has processes that allow those who have been victims of domestic abuse or sexual assault to obtain a civil protective order if the person proves by a preponderance of the evidence that they were a victim of domestic abuse or sexual assault. The civil protective order commands the individual who committed the abuse or assault to keep away from the victim/petitioner, and the order can contain other requirements that the perpetrator must also fulfill. The law currently requires there be a finding of domestic abuse or sexual assault. This bill provides that consent agreements can be issued in domestic abuse and sexual assault protective order cases without a finding of domestic abuse or sexual assault. It is believed that this will do away with the necessity for hearings in a number of cases, thus avoiding the necessity of extremely difficult situations where the victim and perpetrator are both present.
[3/25: 50-0]

SF 449 – Purple paint as notice of trespass

SF 449 changes Iowa’s trespassing law. If a property owner places purple paint around the owner’s real property on trees or fence posts as specified in the bill, that constitutes notice of no trespassing. Anyone entering property marked with purple paint commits trespassing. The bill becomes effective July 1, 2020. Purple paint notice of trespassing does not apply to property located in a city with a population of 60,000 or more. The state departments of Agriculture and Natural Resources must conduct an information campaign to educate the public and property owners about this law.
[3/27: 31-17 (No: Bolkcom, Boulton, Celsi, Dotzler, Giddens, Hogg, Jochum, Kapucian, Lykam, Mathis, Petersen, Quirmbach, Ragan, J. Smith, R. Taylor, T. Taylor, Wahls; Absent: Breitbach, Nunn)]

SF 458 – Liability of the homestead for mechanic’s liens

SF 458 relates to mechanic’s liens and the homestead. Under Iowa law, a homestead (generally protected from debtors) may be subject to a judicial sale to satisfy some debts, including those incurred for work done or material furnished exclusively for the improvement of the homestead, usually when a mechanic’s lien is filed. The bill clarifies that sale of the homestead would go to pay debts secured by a mechanic’s lien, including principal, interest, attorney fees and costs, or those otherwise incurred for work done or material furnished exclusively to improve the homestead.
[3/27: 35-13 (No: Bisignano, Bolkcom, Boulton, Celsi, Dotzler, Giddens, Hogg, Jochum, Petersen, Quirmbach, R. Taylor, T. Taylor, Wahls; Absent: Breitbach, Nunn)]

SF 523 – Non-consensual termination of or injury to a human pregnancy (“Personhood”)

SF 523 relates to termination of a pregnancy without the pregnant person’s consent. The Republicans offered a complete strike-after amendment to the bill that changed the language used in Code Section 707.8 and essentially created a “personhood bill.”

Section 707.8 is in the homicide and related crimes chapter of the Code. Section 707.8 specifically deals with a nonconsensual termination or serious injury to a human pregnancy and imposes criminal penalties when an individual engages in behavior that injures or terminates a human pregnancy. Current Code language titles the section as “Nonconsensual termination – serious injury to a human pregnancy.” In their amendment, Senate Republicans titled it “Nonconsensual cause of death – serious injury to an unborn person.” They inserted that language throughout the entire section. In addition, the amendment added a definition of “unborn person” to mean “an individual organism of the species homo sapiens from fertilization to live birth.” That is essentially “personhood” language.

The bill also increased penalties in certain situations when a person “causes the death of an unborn person” without the consent of the pregnant person:

Increased the penalty for “causing the death of an unborn person” without the consent of the pregnant person during the commission of a forcible felony from a “B” felony to an “A” felony.
Increased the penalty for “causing the death of an unborn person” without the consent of the pregnant person during the commission of a felony or felonious assault from a “C” felony to an “A” felony.
Increased the penalty for a person who intentionally “causes the death of an unborn person without the knowledge and voluntary consent of the pregnant person from a “C” felony to a “B” felony.
Increased the penalty for a person who unintentionally “causes the death of an unborn person” while operating a vehicle while intoxicated.

An “A” felony is punishable by life in prison. A “B” felony is punishable by up to 25 years in prison.
[3/27: 31-18, party line (Absent: Breitbach)]

SF 526 – Creating a blue alert program

SF 526 creates an alert program, which will be a cooperative effort between the Department of Public Safety and local law enforcement agencies, to aid in searching for a suspect of a crime involving death or serious injury of a peace officer in the line of duty or a peace officer who is missing. Upon notification from a law enforcement agency of the death or serious injury of a peace officer, the Department of Public Safety communications center will activate a blue alert under all of these circumstances:

The suspect has not been apprehended.
A law enforcement agency believes that the suspect may be a serious threat to the public.
Sufficient descriptive information is available for the public to assist in locating the suspect.

There are liability protections for an individual or entity that initiates or terminates a blue alert if acting reasonably and in good faith.
[3/27: 48-0 (Absent: Breitbach, Nunn)]

SF 569 – Series limited liability companies

SF 569 creates the Uniform Protected Series Act relating to limited liability companies (LLCs). Iowa law currently provides for business entities called “series limited liability companies.” This legislation is a product of the Uniform Law Commission and has been developed over several years of study. It expands upon Iowa’s current law, provides creation, filing, reporting and record keeping provisions. A series is like an unincorporated division or “cell” established within a limited liability company by its operating agreement.

In addition to “vertical liability shield,” which shields shareholders of corporations and members of limited liability companies generally from personal liability for debts and obligations of the corporation or LLC, a series established by an LLC in conformity with the law will qualify for “horizontal liability shield” that shields the series’ assets if the LLC complies with the law, from debts and liabilities of the LLC and other series it has established.

The Bar Association indicates that the benefits of the bill will include:

Requiring a filing to establish a protected series to ensure accurate and available information at the Secretary of State’s office regarding how many series LLCs have established protected series. Currently, there is no way of knowing how many have been established in Iowa.
Requiring a more specific description of what records must be created, maintained and preserved for the series to be a protected series.
Allowing for disregarding of the liability shields that are consistent with law.
Providing a more thorough definition and description of the nature of a protected series, which will facilitate business transactions.
[3/26: 49-0 (Absent: Breitbach)]

SF 590 – Indigent Defense Fund payment to privately hired attorneys

SF 590 sets out requirements that must be followed for indigent defense funds to be paid to privately retained attorneys in criminal cases. There are times when a criminal defendant will hire a private attorney to represent him or her, and the defendant will give the attorney a retainer. However, the defendant may not have the money to continue paying the private attorney as the case progresses, so an application is made to the court to have the state pay for the costs of the privately retained attorney. For the state to grant an application and authorize payment to the privately retained attorney, the court must find:

That the defendant is indigent.
The costs are reasonable and necessary for the representation of the indigent person in a case for which counsel could have been appointed.
The moneys paid or to be paid to the privately retained attorney by or on behalf of the indigent person are insufficient to pay all or a portion of the costs.

The calculations to be used by the court must be the hourly rate that is currently authorized by Code for indigent defense cases, not the privately retained attorney’s hourly rate. If the court finds that the costs incurred by the privately retained attorney are reasonable and that the state should pay some or all of the fees, the state public defender will review the amount that the court has authorized. This requirement will apply to payments to witnesses, evaluators, investigators and certified shorthand reporters, and other costs incurred by a privately retained attorney in the legal representation.
[3/26: 32-17 (No: Bisignano, Bolkcom, Boulton, Celsi, Dotzler, Giddens, Hogg, Jochum, Lykam, Mathis, Petersen, Quirmbach, Ragan, J. Smith, R. Taylor, T. Taylor, Wahls; Absent: Breitbach)]

HF 266 – Civil Commitment of sexually violent predators

HF 266 is a proposal from the Attorney General that makes changes to Iowa’s sexually violent predator law in Chapter 229A. Sexually violent predators are those who have been convicted of more than one sexually violent crime as defined in Chapter 229A, and through a process set out in Code, it has been determined that they are highly likely to engage in repeated acts of predatory sexual violence, and that the existing involuntary commitment procedure under chapter 229 is inadequate to address the risk they pose to society. Consequently, after serving any criminal sentence, these individuals are civilly committed to the sexually violent predator unit administered by the Department of Human Services for rehabilitation. The bill:

Defines the term “presently confined,” which currently lacks a definition in the Code. Presently confined will include those who are incarcerated, detained, or placed in a correctional facility, jail or comparable facility.
Provides that all forms of sexual exploitation of a minor, including possessing child pornography, are “sexually violent offenses.” Under current law, possessing child pornography is not considered a sexually violent offense.
Clarifies that the notice provisions relating to sexually violent predators do not limit who may be subject to commitment as sexually violent predators.
Provides that fact-findings made by an administrative law judge may be admitted into evidence at a sexually violent predator trial.
[3/26: 49-0 (Absent: Breitbach)]

FLOOR ACTION:

SF 112 – Certification of trust