Judiciary Committee – Week 5, 2021

February 11, 2021 Senate Staff Blog, Judiciary Committee, Votes 0

COMMITTEE ACTION:

SF 6 – Officer Discipline – Brady Lists

SF 6 adds language to Chapter 80F, the Peace Officers’ Bill of Rights. The bill:

  • Adds a definition of “Brady list” to the code. It is a list of officers maintained by the county attorney’s office, including officers who may have impeached themselves as witnesses and officers who may have violated the pretrial discovery rule requiring officers to turn over all evidence that might be used to exonerate a defendant.
  • Prohibits an officer from being discharged, disciplined, or threatened with discharge or discipline by a state, county or municipal law enforcement agency solely due to inclusion on a Brady list. 
  • However, an agency may dismiss or discipline based on the underlying actions that resulted in the officer’s name being placed on a Brady list. If a collective bargaining agreement applies, agency action must comport with requirements in the agreement.
  • The bill requests the legislative council to establish a “Brady list” interim committee to:
    • Study disclosure of information in an officer’s personnel file
    • Study the possibility of implementing a statewide system for a Brady list, identifying impartial entities to conduct investigations regarding an officer’s acts, recommending appropriate procedures, due process protections, etc.
    • Study any other relevant issues
    • The legislation establishes the membership of the interim committee.
      [2/10: short form]

SF 31 – Guardianships and Conservatorships

SF 31 clarifies and fixes some issues relating to major legislation that was passed in 2019 relating to guardianships and conservatorships. 

DIVISION I – RELATING TO MINOR GUARDIANSHIPS, includes these fixes:

  • Clarifies that if there is a minor guardianship proceeding in juvenile court, no action relating to the minor who is the subject of the guardianship may be brought in another court.
  • Adds a new section that juvenile guardianship proceedings are confidential and not public records.
  • Clarifies that an interested party in a juvenile guardianship proceeding includes an adult who had primary care of the minor in the six months immediately preceding the filing of the guardianship petition, not any six- month period in the minor’s life.
  • Parents are entitled to legal representation.
  • In required reports, guardians must share any plan they have for applying for and receiving benefits that the minor may be entitled to.
  • Hearings may be recorded if no court reporter is used.
  • Adds language in some sections to avoid any confusion regarding intent of the language.

DIVISION II – ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS, includes these fixes:

  • Ensures that district courts have access to the dependent adult abuse registry for purposes of background checks of guardians.
  • Specifies the information that a petition for appointment of a guardian and appointment of a conservator must include.
  • Clarifies that to be appointed as a court visitor, the person must demonstrate knowledge of guardianships and conservatorships.
  • A court visitor is discharged from further duties upon the appointment of a guardian or conservator unless the court orders otherwise.
  • Background checks of proposed guardians and conservators done within the six months prior to the filing of the petition qualify as a background check and must be provided to the court.
  • Clarifies what must be in a petition for emergency appointment of a temporary guardian or conservator.
  • Temporary guardianship or conservatorship may be extended for good cause.
  • Adds language specifying the powers of a conservator upon appointment and the duties of a conservator.
  • Specifies what information must be included in the guardian’s initial care plan and annual reports, and that a deadline for filing any report may be extended for good cause.
  • Specifies what must be included in a conservator’s initial financial management plan, annual reports and final report relating to the protected person.

DIVISION III – CONFORMING CHANGES

The entirety of Division III consists of changing the word “ward” to “protected person” throughout the guardianship and conservatorship chapters.
[2/10: short form]

SF 84 – E-Verify

SF 84 requires that an employer not knowingly employ an unauthorized alien. Employer is defined as any person who transacts business in Iowa and has a license issued by an agency of this state. It includes public employers and self-employed individuals.

After hiring or rehiring an employee, an employer will verify their eligibility through E-Verify and keep the record of verification for the duration of employee’s employment or at least three years, whichever is longer. To receive any economic development incentives from government entities, the employer must register with and participate in E-Verify. Iowa Workforce Development will investigate complaints regarding employers having unauthorized employees. 

If Workforce Development determines there has been a violation, it will bring an action against the employer in district court:

  • First violation – The employer is subject to a three-year probationary period for the business location where the unauthorized alien performed work. During this period, the employer must file quarterly reports with Iowa Workforce Development for each new employee hired. The employer will file a signed sworn affidavit within three business days after the order is issued, stating they have terminated all unauthorized aliens and will not knowingly employ an unauthorized alien. If the employer doesn’t file the sworn affidavit, its business licenses will be suspended.

  • Second violation – The court will order the appropriate agencies to permanently revoke all licenses held by the employer for the business location or at the employer’s primary place of business.

A violation is considered a first violation if it doesn’t occur during the probationary period. A violation is considered a second violation if it occurs during the probationary period.

The Secretary of State (SOS) must maintain a database of the employers and business locations that have committed violations, which will be available on the SOS’s website. SOS will also keep a database of employers that participate in E-Verify and make that list available on the SOS’s website.

The federal government’s determination that the employee is an unauthorized alien creates a rebuttable presumption of the employee’s unauthorized status.
[2/10: 10-5, party-line]

SSB 1006 – Mechanic’s Liens

SSB 1006 requires that a perfected lien will be limited to the county or counties in which the building, land or improvement to be charged is situated. Current law only refers to the singular “county.” Currently, when property is located in more than one county, the lien must be filed more than once for each county, and a contractor at times must post a bond for each lien filed relating to the same property. In addition, the bill adds that in an action brought upon a bond given in lieu of a mechanic’s lien, the prevailing plaintiff may be awarded reasonable attorney fees.

The bill has a delayed effective date of January 1, 2022. This is in response to a request by the Secretary of State to delay implementation because of software changes that need to be made.
[2/10: short form]

SSB 1053 – Unauthorized Disclosure of Intimate Images – Civil Damages

SSB 1053 creates the “Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act,” which will provide a civil cause of action for an individual who has been harmed by the unauthorized and intentional sharing of an intimate image of the individual. Unauthorized dissemination of explicit images is a ubiquitous problem. Many states have passed criminal laws penalizing unauthorized sharing of such images, including Iowa. This bill provides a remedy that the criminal law does not.

A cause of action can be pursued under the following circumstances:

-The person disclosing the image knew or acted with reckless disregard because:

  • The depicted individual did not consent to the disclosure
  • The intimate image was private
  • The depicted individual was identifiable

-It is not consent to disclosure if:

  • The depicted individual consented to creation of the image
  • The depicted individual previously consented to disclosure of the image
  • The depicted individual had a reasonable expectation of privacy even if the image was created in a public place

-Exceptions to liability include:

  • In law enforcement
  • A legal proceeding
  • Medical education or treatment
  • Made in good faith in the reporting or investigation of:
    • Unlawful conduct
    • Unsolicited and unwelcome conduct
    • Related to a matter of public concern or public interest
    • Reasonably intended to assist the depicted individual
  • A parent or guardian is not liable for disclosure of the images unless the disclosure of the image is prohibited by law or unless the image was made for inappropriate purposes as listed in the Act.

An action brought under this Act entitles the Plaintiff to exclude or redact from the pleadings any documents with identifying characteristics.
[2/10: short form]

SSB 1090 – Statute of Limitations for Claims of Veterinary Malpractice

SSB 1090 adds a new section to Code Chapter 169 relating to veterinary practice. The bill provides a statute of limitations for an action brought for professional negligence or malpractice against a veterinarian. A person will have two years after the date the claimant knew, or should have known, or received notice of the injury for which damages are being sought, to bring an action against a veterinarian.
[2/10:  short form]

SSB 1102 – Access to Certain Confidential Records

SSB 1102 comes from the Iowa Department of Corrections. It is a fix that will ensure that the Department of Corrections staff, Community Based Corrections staff and Board of Parole staff have statutory authorization to access confidential information regarding offenders.

The bill provides that employees of the Department of Corrections and employees of the Judicial Community Based Corrections Districts have access to certain confidential information when authorized by the respective directors. This includes:

  • Substance abuse diagnosis and treatment commitment information records
  • Mental health information
  • Confidential arrest warrant information
  • Presentence Investigation reports

Employees of the Board of Parole will also have access to presentence investigation reports when authorized by the chair or a member of the board.
[2/10: short form]

SSB 1109 – Juvenile Detention

This bill comes from the Division of Criminal and Juvenile Justice Planning (CJJP) of the Iowa Department of Human Rights. The Division is charged with monitoring juvenile detention facilities relating to the Juvenile Justice Delinquency Prevention Act, which was reauthorized in 2018. The federal law includes a new provision that prohibits states from placing a youth being prosecuted as an adult in an adult jail. This bill is intended to bring Iowa into compliance with the federal law.

  • A judge or magistrate may authorize detention in an adult facility for a period of time in excess of six hours but less than 24 hours only if the facility serves a geographic area outside the standard metropolitan statistical area as determined by the US Office of Management and Budget.
  • A child who is being charged in adult court will not be detained in an adult detention facility unless the court determines in writing after a hearing that it is in the best interest of the child and the community considering:
    • The age of the child
    • The child’s physical and mental maturity
    • Present mental state of the child, including whether the child is at risk of harm to the child’s self
    • Nature and circumstances of the alleged act
    • Prior delinquent acts
    • Availability of facilities to meet the needs of the child, protect the community, and other detained children
    • Any other relevant factor
  • If it is determined that it is in the best interest of the child and the community for the child to be held in an adult facility, the following must apply:
    • Child will not have sight or sound contact with adult inmates
    • The court will hold a hearing not less than 30 days, or not less than 45 days in a rural area, to review whether it is still in the best interest of the child and the community
    • A child will not be detained in an adult facility for more than 180 days except for good cause or the child waives the limitation.
      [2/10: short form]

FLOOR ACTION:

SF 235 – Claims in Probate

SF 235 relates to claims made against an estate in probate. When an individual dies and the estate goes through probate for ultimate distribution, those who believe the deceased owed them money can file a claim against the assets in the estate. The bill:

  • Does away with the requirement that a claimant mail a copy of a request for a hearing on a claim against the estate to the personal representative and the attorney of record by certified mail. Since court files are all electronic now, it will be sufficient for the claimant to file the request for a hearing with the clerk on the electronic data management system.

  • Removes the requirement that the Notice of Disallowance of a Claim include language regarding a requirement to mail a copy of a request for a hearing to the personal representative and the attorney for the estate, if any.

  • Allows the probate court to hear claims up to $6,500. Under the current Code, if a claim in probate exceeds $300, either party can demand a jury trial. This will only allow a party to demand a jury trial for a claim in probate if the amount in contention exceeds $6,500. However, the court may in its discretion submit the matter to a jury if the amount is less than $6,500.

  • Provides that a judgment against any interested party may be deducted from any amounts the estate owes to the interested party.
    [2/9: 48-0 (Excused: Hogg, Nunn)]

SF 239 – Causes of Action that Survive a Person’s Death

SF 239 provides that when a cause of action survives a deceased person and such action is allowed to be continued, the court will appoint a personal representative for the deceased as defined in the probate code, or a successor as provided for in 633.356 relating to small estates and distribution by affidavit.
[2/9: 48-0 (Excused: Hogg, Nunn)]

SF 240 –Uniform Custodial Trust Act

SF 240 is an Iowa State Bar Association bill that creates the Iowa Uniform Custodial Trust Act, which will establish a statutory framework for a simple trust by allowing any kind of property (real or personal, tangible or intangible) to be made the subject of a transfer to a custodial trustee for the benefit of the beneficiary. This legislation will be a trust option for Iowans who do not have a lot of assets but may need a trustee to oversee their assets.
[2/9: 48-0 (Excused: Hogg, Nunn)]

SF 253 – Second Degree Sex Abuse

SF 253 provides that when the victim of sex abuse is under 14, the perpetrator can be charged with sex abuse in the second degree. Current law provides that when a victim is under 12, it is 2nd degree sex abuse, a class “B” felony. Under current law, if the victim is 12 or 13, it is sex abuse in the 3rd degree, a class “C” felony.
[2/9: 48-0 (Excused: Hogg, Nunn)]

HF 232 – Disorderly Conduct

HF 232 adds language that will require a person to intentionally or recklessly cause unreasonable distress to the occupants of the residence or building to be guilty of the crime of disorderly conduct. Intent or recklessness is not required under the current disorderly conduct statute.
[2/9: 48-0 (Excused: Hogg, Nunn)]