Judiciary Committee – Week 6, 2020

February 23, 2020 Senate Staff Blog, Judiciary Committee, Votes 0

COMMITTEE ACTION:

SF 571 – Joint Physical Care

SF 571 relates to custody and physical care of children. Under current law, there are generally three types of custody awarded by courts. One is “legal” custody, which means both parents are entitled to be included in decisions regarding health care, schooling, etc., of the child. Thus, if joint legal custody is awarded, it relates primarily to decision-making and information regarding a child’s welfare.

“Physical” custody/care refers to where a child will be primarily residing. Thus, a parent can be awarded joint legal custody, but not physical custody.

Joint physical custody/care awards physical care equally to parents. So, under a joint physical care arrangement, a child will reside with one parent ½ of the time and the other parent ½ of the time, or some arrangement that is close to that.

In Iowa, either parent can request joint physical care, but there is no presumption that it will be in the best interests of a child. SF 571 creates a rebuttable presumption that when joint legal custody is awarded, joint physical care is favored; and the parents will submit a joint physical care parenting plan either individually or jointly. However, a finding of child abuse or neglect by one parent would rebut the presumption. If the court does not award joint physical care, it must cite clear and convincing evidence that it would be unreasonable to do so and would not be in the best interest of the child.
[2/19: 9-5, party line (Absent: Nunn]

SF 2286 – Invasion of Privacy

SF 2286 changes the elements required to prove the crime of invasion of privacy. Under current law, to prove invasion of privacy, a person must be viewing, photographing or filming another person for the purpose of arousing or gratifying the sexual desire of any person. The bill removes the requirement that the intent of the behavior is for arousing or gratifying sexual desire. Thus, to prove invasion of privacy under this bill, the following is required:

  • Knowingly viewing, photographing or filming another person under all the following circumstances:
    • The other person has not consented or is unable to consent to being viewed, photographed or filmed.
    • The other person is in a state of full or partial nudity.
    • The other person has a reasonable expectation of privacy while in a state of full or partial nudity.
      [2/17: short form]

SF 2287 – Establishing Veterans’ courts in every judicial district

SF 2287 establishes a veterans’ treatment court in every judicial district in Iowa and sets out requirements for the courts, including integrating alcohol and drug treatment and mental health services in the case processing, using a non-adversarial approach, monitoring abstinence by frequent alcohol and drug testing, and ongoing judicial interaction with the participants, among others.

For veterans’ treatment court purposes, a veteran is “a person who served in the armed forces or the reserve forces of the United States or who served in the national guard of any state.”

The bill requires the Iowa Supreme Court to prescribe rules for administration of the veterans’ treatment courts and to establish jurisdiction in consultation with the U.S. Department of Veterans Affairs, the Iowa Department of Veterans Affairs, the County Commissions, the Iowa Department of Human Services, the State Public Defender and the Iowa County Attorneys Association.
[2/17: short form]

SF 2288 – Liability protections for school volunteers

SF 2288 relates to corporal punishment in schools. Iowa law currently prohibits corporal punishment by a school employee. Corporal punishment is defined as “the intentional physical punishment of a student.” However, physical contact with a student will not be considered corporal punishment if it is “reasonable and necessary under the circumstances and is not intended to cause pain…or if the employee uses reasonable force…for the protection of the employee, the student or other students, or to obtain the possession of a weapon or other dangerous object within the student’s control or for the protection of property.” School employees who come into physical contact with students are granted immunity from civil or criminal liability if the contact is reasonable under those circumstances. SSB 3075 does the following:

  • Provides the same physical contact immunity protections to school volunteers.
  • Gives immunity to a school district, a school board, authorities in charge of a non-public school if the school employee or school volunteer is granted immunity from any civil or criminal liability.
  • Specifies that attorney fees are included in the monetary damages that a school employee, volunteer, school board or authorities in charge of an accredited public school will be awarded if wrongfully accused in a civil suit.
    [2/17: 13-2: (No: Hogg, Petersen)]

SF 2320 – Court Interpreters

SF 2320 is a Judicial Branch bill that will streamline the system for payment of court interpreters by having the state court administrator receive and review and pay fee claims for interpreters. The bill makes clarifying definitional and grammatical changes regarding court interpreters, including sign language interpreters.
[2/17: short form]

SF 2321 – Guardianship and Conservatorship “fixes”

SF 2321 does the following:

  • Makes technical and clarifying fixes to HF 610 and HF 591, two bills relating to guardianships and conservatorships that were passed during the 2019 legislative session.
  • Specifies the information that must be in guardians’ and conservators’ initial care plans and the annual reports relating to the protected person.
  • Codifies language from the Supreme Court supervisory order, which provides that guardianships and conservatorships in existence at the time of enactment of the bills would be allowed to transition into the new reporting requirements when the regularly scheduled annual reports are due.
    [2/18: short form]

SF 2322– Continuous Sexual Abuse

SF 2322 is an Iowa County Attorneys Association bill resulting from information learned about the difficulty children who are repeatedly abused have in articulating each specific instance of abuse.

The bill creates the crime of “Continuous Sexual Abuse of a Child,” which is committed when a person who is 18 or older does any combination of three or more sex offenses that include sex abuse in the second degree, sex abuse in the third degree, lascivious acts with a child and indecent contact with the same child, and at least 30 days must have elapsed between the first and last acts.

  • Continuous sexual abuse is a “B” felony punishable by up to 50 years in prison. Most “B” felony crimes have a maximum 25-year sentence.
  • A jury does not need to unanimously agree on which specific acts were committed or the exact date they were committed; the jury only needs to agree that three or more acts of abuse were committed with the same child and at least 30 days elapsed between the first and last sex offenses.
  • A person will be charged with one count of continuous sexual abuse unless there is more than one child involved in the offense. 
  • To be charged with “Continuous Sexual Abuse of a Child,” one of the three acts must be sex abuse in the 2nd degree or sex abuse in the 3rd degree.
    [2/17: short form]

SF 2323 – Guardianship and Conservatorship transitioning to the new law

SF 2323 provides for transitioning for guardians and conservators to Iowa’s new law. During the 2019 legislative session, bills that made significant changes to Iowa’s guardianship and conservatorship laws were enacted. The legislation applied to current guardianships and conservatorships, as well as those established after enactment. The legislation required initial care plans for all guardianships and conservatorships, including ones already in existence. The Supreme Court issued an order that provided for transitioning to the new law for current guardianships and conservatorships. SSB 3131 codifies the Supreme Court’s order, which allows that any guardianship or conservatorship in existence would not have to file an initial care plan until the date of the regularly scheduled annual report.
[2/18: short form]

SF 2324 – Sex Offender Registry

SF 2324 comes from the Department of Public Safety and makes changes to modification requirements for Iowa’s sex offender registry. The Department claims that Iowa is out of compliance with the federal “Adam Walsh” registry requirements, and these changes will help Iowa get an extra $100,000 for drug-enforcement-related efforts.

  • To request a modification of registry requirements:
    • Only those who were juveniles at the time of the offense can apply for a modification if they are on Tier II or Tier III. Nobody who was an adult at the time of the offense can apply for a modification.
    • A Tier II or Tier III offender must have been registered at least 25 years prior to filing an application.
    • No convictions for crimes of any type, other than traffic violations, during the period preceding the application.
    • A Tier I offender must have been registered at least 10 years prior to filing an application for modification.
      [2/18: 10-5, party line]

SF 2337 – Requirements for filing of civil claims relating to asbestos and silica

SF 2337 further tightens requirements for plaintiffs in asbestos cases, and adds that plaintiffs suffering a malignant condition (mesothelioma) would have to comply with strict requirements for filing a petition. The bill requires more specificity in a petition relating to a claim for damages from exposure to asbestos or a silica action. A plaintiff must identify all possible exposures to asbestos or silica, as well as each asbestos-containing product or silica product to which the plaintiff was exposed and the premises. The court must dismiss any asbestos action or silica action without prejudice for any defendant whose product or premises is not identified in the petition or other initial pleading.
[2/18: 10-5, party line]

SF 2338 – Hard caps on medical malpractice awards

SF 2338 places a hard cap of $750,000 on any non-economic damage award in medical malpractice cases.

Section 1: Iowa currently has what is called a “soft cap” of $250,000 on non-economic damages, often referred to as damages for pain and suffering, in medical malpractice cases. This means that generally in medical malpractice cases, if damages for pain and suffering are awarded, they are limited to $250,000. However, if a jury determines that there is substantial or permanent loss or impairment of a bodily function or substantial disfigurement or death, then a damage award can exceed $250,000 if otherwise limiting the award would deprive the plaintiff of just compensation for the injuries.

Section 2: Provides that evidence in a civil case offered to prove past medical expenses is limited to evidence of the amounts that were actually paid to satisfy bills that have been satisfied and to the amounts for services that have not been paid only up to what will be covered by the health insurer.
[2/19: 9-5, party line (Absent: Nunn)]

SF 2339 – Model Business Corporation Act

SF 2339 is proposed by the Business Law Section of the Iowa Bar Association. It is an update to Iowa’s business corporations law based on the Model Business Corporation Act.
[2/18: short form]

SF 2340 – Nonsubstantive Code Editor’s bill

SF 2340 is the bill commonly referred to as the Nonsubstantive Code Editor’s bill. This bill is submitted each year by the Iowa Code Editor to the Judiciary Committee to make Code changes that exceed the Code Editor’s editorial authority but are nonsubstantive and noncontroversial in nature. In some cases, the changes are within the Code Editor’s authority but are significant enough that public notice of the changes by means of this bill is considered important. Example of nonsubstantive changes would be separating paragraphs into subparagraphs but not changing any of the language, or changing grammatical mistakes.
[2/19: 14-0 (Absent: Nunn)]

SF 2341– Crimes against older individuals

SF 2341 is a proposed Attorney General bill. The Legislature, along with various interest groups have attempted to address the issue of elder abuse through assorted proposals over the years. Several years ago, proposed legislation similar to SF 2341 was trimmed down to a bill that provided for civil protective orders for older individuals who experienced abuse. SF 2341 revisits many of the proposals in the previously proposed legislation. The bill:

  • Enhances penalties for thefts from older individuals and for assaults against older individuals. For purposes of theft and assault penalty enhancements, “older individual” is defined as someone 60 or older.
  • Amends Code section 714.16A that provides for an additional civil penalty for consumer fraud committed against an older person. Current law allows additional civil penalties in an action brought by the Attorney General for consumer fraud of an older person. Current law defines an older person as someone 65 or older. The bill changes “older person” to “older individual,” someone 60 or older.
  • Creates a new crime of elder abuse of an older individual, however, the definition of “older individual” is not 60 or older for this crime. For a charge of elder abuse, “older individual” is someone 60 or older who is unable to protect himself or herself from elder abuse because of a mental or physical condition or because of a personal circumstance which results in an increased risk of harm.
  • Creates a new crime of financial exploitation of an older individual, in this case a person 64 or older.
  • Amends the Code section relating to dependent adult abuse and adds definitions, and allows the Attorney General to initiate charges of dependent adult abuse, which is not authorized under current law.
    [2/18: short form]

SF 2347 – Substantive Code Editor’s bill

SF 2347 is commonly referred to as the Substantive Code Editor’s Bill and is submitted annually by the Iowa Code Editor to the Judiciary Committee pursuant to Iowa Code Section 2B.6 and Joint Rule 11. The substantive Code Editor’s bill makes various changes throughout the Code, including, but not limited to, correcting language to conform to other Code language or current practices, eliminating conflicting language or ambiguous language, and repealing or striking redundant language.
[2/19: short form (Absent: Nunn)]

SF 2348 – Voting Rights

SF 2348 relates to the restoration of voting rights for those convicted of a felony. The bill requires that only after an individual has discharged their sentence would they be able to have their voting rights restored. The bill adds a new Code section that defines what “discharge of sentence” means. The following is required for a person to have his or her voting rights restored:

  • Completion of any term of confinement, parole, probation and any special sentence imposed pursuant to Chapter 903B. Chapter 903B establishes special sentences for various sex offenses. Depending upon the offense, a special sentence is either lifetime or 10 years. These special sentences begin after the individual completes the sentence for the underlying criminal offense.
  • Essentially no restoration of voting rights for a person convicted of any offense under Chapter 707, Homicide and Related Crimes, unless the Governor has granted a pardon or restored the person’s voting rights.
    • This includes involuntary manslaughter, homicide or serious injury by vehicle (which includes texting while driving and unintentionally causing the death of another).
  • All pecuniary damages must be paid. Pecuniary damages are paid to victims and are also referred to as “victim restitution.” The Code defines pecuniary damages as “…all damages to the extent not paid by an insurer on an insurance claim by the victim, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.” Without limitation, “pecuniary damages” includes damages for wrongful death and expenses incurred for psychiatric or psychological services or counseling for the victim as a direct result of the criminal activity.

The bill has a contingent effective date. It will take effect upon ratification of HJR 14 (or similar resolution), the proposed Constitutional amendment that restores voting rights to those who have discharged their sentence. HJR 14 passed the House during the 2019 session by a vote of 95-2.
[2/19: 13-1 (No: Hogg; Absent: Nunn)]

SF 2359 – Evidence of past medical expenses in tort cases

SF 2359 requires that evidence of past medical expenses in civil trials be limited to evidence of the amounts actually paid to satisfy the bills, regardless of the source of payment. In addition, evidence of the bills that have been incurred but not yet satisfied must be limited to what is covered by one’s health insurance.
[2/19: 9-5, party line (Absent: Nunn)]

SF 2362 – Guardians ad Litem for minor witnesses in criminal cases

SF 2362 provides that in certain criminal cases where the witness is under 18, the witness is entitled to have a guardian ad litem appointed by the court to protect their interests. The guardian ad litem must be a lawyer. The criminal cases where a guardian ad litem is authorized are:

  • 709 Sexual abuse cases
  • 710A Human trafficking
  • 726.2 Incest
  • 726.3 Neglect or abandonment of a dependent person
  • 726.6 Child endangerment
  • 728.12 Sexual exploitation of a minor
    [2/19: short form (Absent: Nunn)]

SF 2363 – Cannabidiol

SF 2363 makes changes to the cannabidiol bill that passed during the 2019 session but was vetoed by the Governor.

  • Adds autism and post-traumatic stress disorder to the list of debilitating medical conditions.
  • Replaces “untreatable pain” with “severe or chronic pain” on the list of debilitating medical conditions.
  • Adds licensed physician assistants, podiatrists, advanced registered nurse practitioners and advanced practice registered nurses to the list of health care practitioners that may issue written certifications for a medical cannabidiol registration card.
  • Removes the 3% tetrahydrocannabinol (THC) limit from the definition of medical cannabidiol. The bill instead prohibits a patient or a primary caregiver from purchasing more than 25 grams of THC in a 90-day period.
  • Allows medical cannabidiol dispensaries to access the registry of medical cannabidiol patients to verify that a patient or primary caregiver has not purchased more than 25 grams of THC in a 90-day period.
  • Allows a health care practitioner to access the registry of medical cannabidiol patients to monitor the amount of medical cannabidiol purchased by their patient or the primary caregiver of a patient.
  • Removes the Board of Medicine from the process of amending the acceptable form and quantity of medical cannabidiol.
  • Directs the Iowa Department of Public Health to adopt rules allowing a health care practitioner who has issued a written certification for a medical cannabidiol registration card to a patient to revoke that certification. The bill removes provisions preventing a patient or a primary caregiver from receiving a medical cannabidiol registration card if the patient or primary caregiver has been convicted of a disqualifying felony.
  • Directs IDPH to adopt rules for issuing a caregiver medical cannabidiol registration card to an institution, including but not limited to a school, university, nursing home, long-term care facility, correctional facility or jail, to allow employees of the institution to administer medical cannabidiol to patients in the care of the institution.
  • Permits IDPH to issue a medical cannabidiol registration card to a patient receiving hospice care without first receiving a written certification from a health care practitioner.
  • Changes the expiration date of medical cannabidiol registration cards from one year after issuance to two years after issuance.
  • Removes the Iowa Department of Transportation from the process of applying for and receiving a medical cannabidiol registration card.
  • Allows the Medical Cannabidiol Board to meet more than four times per year.
  • Requires IDPH to adopt rules to modify the list of debilitating medical conditions for which a certification for a medical cannabidiol registration card may be issued when the Medical Cannabidiol Board recommends such a change.
  • Removes the Board of Medicine from the process of adding debilitating medical conditions to the list of debilitating conditions for which a written certification for a medical cannabidiol registration card may be issued.
  • Makes changes with respect to medical cannabidiol manufacturers, medical cannabidiol dispensaries and medical cannabidiol product testing. A medical cannabidiol testing laboratory must report testing results to IDPH in addition to the manufacturer of the product being tested. The bill provides that an annual renewal fee for a medical cannabidiol manufacturer license or medical cannabidiol dispensary license will be $2,000. The State Hygienic Laboratory at the University of Iowa will not charge a medical cannabidiol manufacturer more than $50,000 per year for testing medical cannabidiol products.
  • Requires IDPH to establish a committee to review product matrices, testing protocols and testing procedures used by medical cannabidiol testing laboratories.
  • Requires IDPH to conduct a study on the efficacy of medical cannabidiol in treating patients with debilitating medical conditions upon receipt of funding.
  • Requires IDPH to request guarantees from federal agencies providing funding to educational and long-term care facilities that such facilities will not lose their funding for allowing patients to possess and use medical cannabidiol.
    [2/19: 13-1 (No: Dawson; Absent: Nunn)]

SSB 3032 – Statute of Limitations for Sex Abuse

SSB 3032 removes the criminal and civil statutes of limitations for sex abuse in the first degree, sex abuse in the second degree, sex abuse in the third degree, kidnapping and human trafficking. Thus, an action for damages can be brought any time after the commission of these offenses and, in addition, a criminal charge of sex abuse in the first, second or third degree, kidnaping and human trafficking can also be brought at any time after the commission of the offense.

This is not exclusive to children who have been victimized. It applies to any sex abuse, kidnapping or human trafficking, regardless of the victim’s age.

The bill is entirely prospective and has no “look back” provisions that would allow those who were previously victims of sex abuse whose statute of limitations has run out, to sue for damages.

In addition, the bill only addresses sex abuse in the first, second and third degree, kidnapping and human trafficking. Other sex offenses are not addressed in the bill, most notably an action for damages caused by sexual abuse or sexual exploitation by a counselor, therapist or school employee. The criminal statute of limitations for 709.15 (Sexual Exploitation by a Counselor, Therapist, or School Employee) is not extended.
[2/17: short form]