Judiciary Committee – Week 7, 2020

March 2, 2020 Senate Staff Blog, Judiciary Committee, Votes 0

FLOOR ACTION:

SF 2232 – Trust Code amendments

SF 2232 comes from the Iowa Academy of Trust and Estate Counsel (ITEC) and proposes amendments to Iowa’s Trust Code, which, according the members of ITEC, would provide more flexibility for Iowans creating trusts and would reduce the flow of trust business to South Dakota, which has more liberal trust laws. The bill:

  • Allows a trustee to create a new trust and place the first trust assets into a second trust to increase trust flexibility. This is intended to codify a practice called “decanting,” which is currently allowed per common law.
  • Changes the age at which beneficiaries must receive notices about the existence of a trust benefitting them along with copies of the trust and an annual accounting. Current law requires that any beneficiary 18 or older receive notices and accountings related to the trust. The bill changes the requirement to age 25. Trust beneficiaries between 18 and 25 will have a designated surrogate to receive the notices if the trust instrument or trust protector so directs.
  • Allows for “unbundling of trustee functions.” Thus, there would be the potential for a trust to have multiple trustees with different functions, such as “an administrative trustee” responsible for accounting and tax compliance, a “distribution director” to make distribution decisions, and an “investment director” to make investment decisions. In addition, the bill allows for a non-fiduciary “trust protector” to make other decisions that are not fiduciary in nature.
    [2/24: 50-0]

SF 2093 – Class “A” felonies and life sentences

SF 2093 defines a life sentence for the purposes of a class “A” felony as the defendant’s natural life, regardless of any life-sustaining procedures that may be used on the defendant during their sentence after technically being “dead.”
[2/25: 50-0]

SF 2337 – Civil actions involving asbestos and mesothelioma, and silica

SF 2337 is intended to further tighten the requirements for injured plaintiffs in asbestos cases and adds a malignant (mesothelioma) condition that would be subject to the law. The bill requires more specificity in a petition 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 they were exposed and the premises. The court must dismiss any asbestos action or silica action without prejudice for a defendant whose product or premises is not identified in the petition or other initial pleading.
[2/25: 30-19 (No: Democrats, Carlin; Absent: Zaun)]

SF 2338 – “Hard caps” on non-economic damages 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 there is substantial or permanent loss, impairment of a bodily function, substantial disfigurement or death, a damage award can exceed $250,000, if otherwise limiting the award would deprive the plaintiff of just compensation for the injuries.

SF 2338 places a “hard cap” of $750,000 on any non-economic damage award. Thus, regardless of the extent of the injury, no jury could exceed the $750,000 limit.

Sections 2 and 3 provide that evidence in a civil case offered to prove past medical expenses is limited to the amounts that were actually paid to satisfy bills that have been satisfied, and evidence relating to the amounts for services that have not yet been paid will be limited to what will be covered by the health insurer.
[2/25: 30-20 (No: Democrats, Carlin, Nunn)]

COMMITTEE ACTION:

SJR 2005 – Victims’ rights constitutional amendment

SJR 2005, as amended in Committee, proposes an amendment to the Iowa Constitution which would say, “The rights of a victim of crime, as provided by law, will not be infringed.”
[2/20: short form]

SF 2374 – Restitution and court debt

SF 2374 is an effort by Senator Dawson to clarify Iowa’s court debt and restitution code sections, and to address the Albright decision by the Iowa Supreme Court this past year. The pertinent part of the Albright decision related to a defendant’s ability to pay certain court costs, including the jail fees that are charged to defendants. The Court said that jail fees, along with a number of other fees, are subject to a determination about whether the defendant has a reasonable ability to pay those fees. Thus, the amount owed by the defendant could be reduced.

The bill:

  • Creates three categories of restitution
    • Pecuniary damages, which is victim restitution
    • Category A restitution, which is fines, penalties and surcharges
    • Category B restitution, which is contribution of funds to a local anticrime organization that aided law enforcement in an offender’s case, crime victim compensation reimbursements, restitution to public agencies that responded to an accident, etc., as a result of a person driving drunk, court costs, court-appointed attorneys fees, reimbursement to a medical assistance program.
  • Establishes that victim restitution (pecuniary damages) and Category A restitution are not subject to a defendant’s ability to pay.  
  • Category B restitution is subject to a determination about a defendant’s ability to pay and can be reduced based on that determination.
  • Requires that any payments made by a defendant pursuant to a court restitution order and payment plan first be put towards victim restitution. If there is more than one case where a victim is owed restitution, then payments are to be put toward victim restitution in all cases before any other restitution is paid down.
  • Requires that defendants fill out a financial affidavit form to provide information to the court about a defendant’s ability to pay Category B restitution. The bill directs the Supreme Court to create the form.
  • An offender who is not reasonably able to pay all or part of Category B restitution may be ordered to perform public service.
  • An offender is presumed to have the reasonable ability to pay all restitution.
    • Defendant must request a hearing about their ability to pay and provide the completed financial affidavit.
    • Defendant must prove by a preponderance of the evidence at a hearing about the inability to pay the full amount of Category B restitution.
  • Prohibits the sheriffs from filing the jail costs with the clerk in the criminal case to be paid as restitution. To recoup a defendant’s jail charges, a sheriff must file a civil suit.
    [2/20: short form]

SF 2376 – Tracking system for sexual assault examination kits

SF 2376 establishes an automated sexual assault evidence collection kit tracking system within the Crime Victim Assistance Division of the Attorney General’s Office. The system will allow victims, county attorneys and other entities that have custody of the kits to track their location and status.

  • Crime lab enters information relating to new, unused kits into the system and will document when a kit is provided to a health care provider.
  • Each health care provider will enter information relating to each kit into the tracking system within 48 hours of receipt.
  • When victims of sexual assault who consent to a forensic medical exam and preservation of the evidence, the health care provider contacts law enforcement to collect and store the kit.
  • The location of the kit will be updated at each step of the way.
  • When a kit is transferred to the lab, that information will be entered into the system
  • Results of the testing will be entered into the system and the kit returned to the law enforcement agency.
  • Victims will have decision-making ability throughout the process and will be apprised of their rights and ability to request notification about status of the kits.
  • The Victim Compensation Fund under the control of the Victim Assistance Division will pay for any health-care-related costs for the exams and for the lab fee.
    [2/20: short form]

SF 2377 – Officer discipline

Some county attorneys keep lists or records of peace officers who are not reliable witnesses and who have a history of bad behavior. These are called “Brady” lists or “Giglio” files. In a criminal case, if one of these officers is a prosecution witness, information about the officer’s past bad behavior can be used by the defense as impeachment evidence to attack the officer’s credibility. It is essentially exculpatory behavior that will help a defendant. Some in law enforcement claim that some of these records about “unreliable” peace officer witnesses are inaccurate and include some names that shouldn’t be on any list while excluding some that should be.

SF 2377 addresses this issue by:

  • Adding language to the Peace Officer’s Bill of Rights that an officer cannot be discharged, discipline, or threatened with discharge or discipline by a public law enforcement agency solely because the officer’s name is included on a Brady list.
    • A law enforcement agency can, however, dismiss, suspend, demote or take other disciplinary actions against an officer based on the underlying actions that resulted in the officer’s name being placed on a Brady list.
  • Requesting that the Legislative Council establish an interim committee to:
    • Study the disclosure of information contained in officer personnel files as that information relates to a Brady list.
    • Study the efficiency of implementing a statewide system for a Brady list, identifying impartial entities to conduct investigations about officers’ acts, etc.; and recommending appropriate procedures, due process protections and criteria for placement on a Brady list and removal of an officer’s name from the list.
    • Study other relevant issues.
      [2/20: short form]

SF 2378 – Peace Officers’ Bill of Rights

SF 2378 amends the Iowa’s Peace Officer, Public Safety, and Emergency Personnel Bill of Rights relating to an administrative investigation of an officer.

  • When a formal administrative investigation of an officer is initiated, it will be commenced without unreasonable delay from the date of the incident giving rise to the allegation and will be completed within reasonable time.
  • Upon request of the officer or the officer’s legal counsel, the employing agency will provide a complete copy of the officer’s incident reports, other statements, and video or audio recordings giving rise to the complaint without unnecessary delay prior to an interview of the officer and allowing at least 72 hours for review before the interview unless the officer agrees to a shorter time.
  • An officer will have the right to bring a private cause of action, including an action for money damages against a citizen arising out of a false complaint against them.
  • An officer’s home address, personal telephone number, personal email address, date of birth, social security number and driver’s license number will be confidential, and redacted from any record prior to it being publicly released by the employing agency.
  • An officer’s statement, recordings, or transcripts of any interviews or disciplinary proceedings, and any complaints made against an officer are confidential.
  • Officers and supervisors who investigate complaints against officers must complete training about investigations of officers. The Iowa Law Enforcement Academy will develop standards.
  • Upon request, an employing agency will provide to the requesting officer or their legal counsel a copy of their personnel file and training records regardless of whether the officer is subject to a formal administrative investigation.
    [2/20: short form]

SF 2379 – Officer involved critical incident

The bill creates a new Code Chapter relating to officer-involved critical incidents. It mandates specific rights of officers relating to the procedures following officer-involved critical incidents.

  • An officer-involved critical incident includes:
    • Use of a dangerous weapon by a peace officer against that causes serious bodily injury or fatal injury to a person.
    • The use of a motor vehicle by a peace officer that causes a physical injury, including a fatal injury.
    • The death of a person who is in law enforcement custody, not including a death that results from disease or natural causes.
  • An officer involved in a peace officer-involved critical incident will have the right to legal counsel present during any investigation, including an interview, interrogation, meetings or any criminal administrative proceedings related to the incident and will be allowed reasonable opportunity to obtain legal counsel prior to any interview, interrogation or proceeding.
  • The peace officer involved in the incident must be issued, upon request, all video or audio recordings related to the incident, including body camera video, radio traffic recordings and any statements by the peace officer. These records must be provided at least 48 hours prior to an interview, interrogation or grand jury proceeding.
  • A peace officer’s name will be kept confidential until the peace officer has been interviewed or interrogated as part of the criminal investigation, or until the peace officer declines a voluntary interview.
  • The law enforcement agency employing a peace officer involved in a critical incident must offer confidential peer support and confidential counseling to the peace officer.
    [2/20: short form]

SF 2380 – Consumable hemp products relating to the Hemp Act

SF 2380 relates to the manufacture, sale and consumption of consumable hemp products in Iowa.

  • The bill adds a definition of “consumable hemp product” to the Iowa Hemp Act. A “consumable hemp product” is a hemp product that is designed to be introduced into a human or animal body. 
  • People may only manufacture, sell or consume a consumable hemp product if it was produced in Iowa in conformance with the Iowa Hemp Act and complies with the labeling requirements established by the Department of Inspections and Appeals.
  • However, a consumable hemp product may be imported into Iowa for use by a consumer if the state from which the consumable hemp has been imported from a state hemp with a plan approved by the U.S Secretary of Agriculture and testing requirements are substantially similar to Iowa’s.
  • A person manufacturing consumable hemp products must register with Iowa’s Department of Agriculture and a person who sells consumable hemp products must register with the Department of Inspections and Appeals.
  • Political subdivisions are prohibited from adopting any ordinance rule, or regulation about the manufacture, sale or consumption of a consumable hemp product.
  • Consumable hemp products that comply with this legislation are not controlled substances.
  • Implementation takes effect upon the implementation date of the Iowa Hemp Act.
    [2/20: 14-1 (No: Whiting)]

SF 2381 – Sobriety and drug monitoring program amendments (24/7)

SF 2381 amends the requirements of the 24/7 sobriety program that was enacted two years ago. The initial legislation mandated that those who participate a sobriety and drug monitoring program (24/7) must obtain a temporary restricted license (TRL), which also required the installation of an ignition interlock device. Since implementation of the program in Woodbury County, it has become evident that offenders who were ordered into the program were not obtaining a TRL and thus said they couldn’t participate in the program. The bill:

  • Removes the requirement that participants in the 24/7 program obtain a temporary restricted license. They may apply for participation in the program and a court may order participation without the TRL requirement.
  • Adds a requirement that prior to the end of participation in the program, a participant must provide evidence to the law enforcement agency running the program that they installed an ignition interlock device on all motor vehicles owned or operated by them unless the court finds:
    • The participant is ineligible for a temporary restricted license upon completion of the program.
    • The participant does not have a motor vehicle registered in their name.
    • The court must specifically state the reason for not imposing the requirement for installation of an ignition interlock device.
      [2/20: short form]

SF 2382 – Age of consent amendment

SF 2382 makes it an aggravated misdemeanor when an individual who is 27 or older engages in sexual activity with a person who is 16 or 17. Under Iowa law, the age at which a person can legally consent to sexual activity is 16. This bill makes an exception to that and adds to Iowa’s statutory rape laws by criminalizing sexual activity between a 16 or 17-year-old and anyone who is 27 or older. An aggravated misdemeanor is punishable by up to two years in prison and a fine between $625 and $6250.

A person convicted under this new crime would not be subject to the 10-year special sentence (parole supervision) for sex offenders.
[2/20: 10-5, party-line]