Judiciary Committee – Week 9, 2020

March 16, 2020 Senate Staff Blog, Judiciary Committee, Votes 0

FLOOR ACTION:

SJR 2005 – Constitutional Amendment regarding the rights of crime victims

SJR 2005 proposes an amendment to the Iowa Constitution which would say, “The rights of a victim of crime, as provided by law, shall not be infringed.” To amend Iowa’s Constitution, a proposed amendment must pass at least one session of two consecutive General Assemblies. Then the proposed Constitutional amendment goes to a vote of the people.
[3/10: 48-0 (Absent: Breitbach, Feenstra)]

SF 571 – Joint physical care of children

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.
[3/10: 30-18 (Yes: Republicans, Kinney; No: Democrats, Carlin; Absent: Breitbach, Feenstra)]

SF 2321 – Guardianships and conservatorships

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.
    [3/11: 46-0 (Absent: Breitbach, Brown, Feenstra, Hogg)]

SF 2341 – Crimes against older individuals

SF 2341 is a proposed Attorney General’s 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 that results in an increased risk of harm. 
  • Creates a new crime of financial exploitation of an older individual, in this case a person 60 or older.
  • Places the current dependent adult abuse law found in 235B.20 into Chapter 726, Protection of Families and Dependent Persons, and allows the Attorney General to initiate charges of dependent adult abuse, which is not authorized under current law.
    [3/11: 46-0 (Absent: Breitbach, Brown, Feenstra, Hogg)]

SF 2374 – Restitution and court debt

SF 2374 is an effort to clarify Iowa’s criminal court debt and restitution code sections and to address the Albright decision, which was decided 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 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 of reasonable ability to pay. Thus, the amount owed by the defendant could be reduced if they aren’t able to pay. 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 or 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 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 towards victim restitution in all cases before any other restitution is paid down.
  • Requires that defendants fill out a financial affidavit regarding 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 on ability to pay and provide the completed financial affidavit.
    • Defendant must prove by a preponderance of the evidence at a hearing their inability to pay the full amount of category B restitution.
  • Prohibits a sheriff from filing jail costs in the criminal case with the clerk to be paid as restitution.
  • To recoup defendant’s jail charges, a sheriff must file a civil suit.
  • A sheriff’s office can do its own filings in a civil action for jail fees, which is currently prohibited under Code Section 331.659.
  • Enactment date will be delayed to October 2020.
    [3/10: 32-16 (Yes: Republicans, Kinney, Ragan; Absent: Breitbach, Feenstra)]

COMMITTEE ACTION:

HF 2219 – Guardian ad litem duties

In juvenile proceedings, the court will appoint a guardian ad litem (GAL) to represent the best interests of a child in court proceedings in which the child is a party. A guardian ad litem includes a court appointed special advocate. Code Section 232.2 lists the responsibilities of a guardian ad litem when appointed to ensure the best interests of the child. HF 2219 adds the requirement that a guardian ad litem file a report prior to any dispositional hearing, permanency hearing or review hearing. The report is to include:

  • The nature and number of contacts the GAL has had with the child and others involved with the child’s case since the last hearing.
  • Information about the child’s education, health and well-being.
  • The GAL’s position on issues to be addressed at the hearing, including but not limited to legal custody, placement, visitation, the case plan, and the child’s wishes and requests.
  • Whether there is a conflict between the child’s wishes and the GAL’s position.
  • Any other information related to the best interests of the child.
    [3/9: 15-0]

HF 2361 – Microchipping of employees

There have been news stories and articles about certain businesses researching the idea of microchipping their employees, and some may have already initiated the practice. One reason some businesses may believe this is advantageous is to protect a company’s sensitive data, etc. They believe microchipping employees would provide added security. However, Legislatures have begun to place limits on a company’s ability to chip employees. HF 2361:

  • Prohibits any employer from requiring that an employee have a microchip or other device implanted or inserted in the employee’s body.
  • An employer cannot provide an incentive or privilege to an employee for agreeing to have a microchip or other device implanted or inserted in the employee’s body if that same incentive is not available to employees who do not agree.
  • An employee may voluntarily agree to have a microchip or other device implanted or inserted in the employee’s body if not required or offered an incentive or privilege to do so by the employer.
    [3/9: 15-0]

HF 2366 – Parenting time

HF 2366 replaces the term “visitation” with the term “parenting time” throughout the Code relating to rights awarded a parent when there is a custody decision. So, rather than saying a parent will have “visitation,” that time will be referred to as “parenting time.”

[3/9: 15-0]

HF 2502 – Preemption of local governments weapons laws

HF 2502 is a bill that preempts local control of weapons laws.

  • Sections 1 and 2 prohibit counties, including county zoning commissions, and cities, including a city zoning commission, from enforcing any zoning regulations relating to the establishment, use or maintenance of a shooting range that are more stringent than those imposed by state law. However, there are really no state laws that impose regulations on shooting ranges.
  • Section 3 adds language to current law relating to political subdivisions enacting ordinances regarding weapons.  Current law says that a political subdivision cannot enact an ordinance that regulates the ownership, possession, legal transfer, lawful transportation, registration or licensing of firearms if otherwise lawful under state law. Section 3 adds that a political subdivision cannot enact an ordinance regulating the modification of weapons, firearms attachments or other weapons if otherwise lawful under state law. In addition, the bill states that any person adversely affected by any ordinance, measure, enactment, rule, etc. may file suit. A court must award the prevailing party reasonable attorney fees and court costs.
  • Section 4 says that if political subdivision wants to regulate the carrying, possession or transportation of firearms or other dangerous weapons in buildings or physical structures located on political subdivision property, the political subdivision must screen people for firearms or other dangerous weapons and must provide armed security inside the building or physical structure. The cost will be prohibitive for cities and counties that believe that public safety requires them to restrict weapons in certain public buildings.
  • Section 5 says a political subdivision must not enact an ordinance, motion, resolution or amendment regulating the storage of weapons or ammunition.
  • Section 6 mandates that the Judicial Branch not prohibit anyone from lawfully carrying, possessing or transporting a weapon in a county courthouse or other joint-use public facility unless the court order applies only to a courtroom or court office or a courthouse used only for judicial branch functions.
    [3/9: 10-5, party line]