Judiciary Committee – Week 9, 2021

March 10, 2021 Senate Staff Blog, Judiciary Committee, Votes 0

FLOOR ACTION:  

SF 342 – Officer Discipline and “Brady Lists”

SF 342 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 a 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.
    [3/8: 46-0 (Absent: Kraayenbrink, Nunn, Whiting, Zaun)]

SF 348 – Guardianships and Conservatorships

SF 348 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 receive 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.

The Senate adopted a clarifying amendment that does the following:

  • Court-approved powers provided to a guardian are temporary until the initial care plan is approved.
  • Several sections remove a requirement that the verified initial care plan and the verified annual report be served on the protected person and their attorney, and replaces it with the simpler requirement that the guardian or conservator provide them with these documents.
  • When a guardian or conservator is first appointed, the court will state the temporary powers of the guardian, which will remain in place until the initial care plan has been approved by the court.
  • The powers of a conservator section of the bill is rewritten to be clearer:
    • Upon appointment, the conservator has default powers for reporting, and fiduciary powers until the initial plan is approved.
    • The initial care-plan order sets out the specific powers of the conservator. Notice is to be provided to those who are entitled to receive it. Any other action requires specific prior authorization by the court.
    • Upon appointment, the clerk of court will issue letters of appointment. These will be updated after filing of the initial financial request plan, annual report or other court orders regarding providers.
      [3/8: 47-0 (Absent: Nunn, Whiting, Zaun)]

SF 357 – Juvenile Detention

SF 357 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 U.S. 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.
      [3/10: 48-0 (Absent: Hogg, Nunn)]

SF 521 – Human Trafficking Task Force

SF 521 establishes a Human Trafficking Task Force within the Department of Public Safety.

The Task Force will:

  • Collaborate with the Office to Combat Human Trafficking
  • Examine the extent of human trafficking in the state
  • Identify current initiatives to eliminate human trafficking in the state
  • Identify services currently available to human trafficking victims
  • Use research and information from the U.S. Department of Justice and the FBI
  • Develop a human trafficking informational poster and work with businesses to place the poster
  • Research and recommend a model of rehabilitative services for victims

The bill lists the required membership of the task force and requires that the findings and recommendations of the task force will be reported to the director of the Office to Combat Human Trafficking to be included in the annual report to the Legislature.
[3/9: 47-0 (Absent: Hogg, Nunn, Whiting)]

SF 522 – Crimes Against Older Individuals and Older Individual Abuse

SF 522 was originally proposed by the Attorney General in previous sessions. It provides additional criminal penalties when an older individual, defined as a person 60 or older, is the victim of assault, theft, consumer fraud, elder abuse or financial exploitation. The Legislature, along with various interest groups, has attempted to address the issue of elder abuse and crimes against older individuals through assorted proposals over the years. Agencies, the Department of Human Services, and other entities and interest groups that provide services to older individuals indicate that there is a significant amount of elder abuse in many forms going on throughout the state, causing a need for changes in the law.

The bill:

  • Enhances criminal penalties for second and subsequent assaults against older individuals and requires mandatory minimum sentences. 
  • Increases penalties for thefts from older individuals
  • The bill also amends Code section 714.16A, which provides for an additional civil penalty for a consumer fraud committed against an older person. Current law allows the court in an action brought by the Attorney General for consumer fraud of an older person, to impose additional civil penalties. Current law defines an older person as a person 65 or over. The bill changes the definition of “older person” to “older individual,” which is a person who is 60 or over. 
  • The bill creates a new crime of elder abuse for an older individual, however, the definition of “older individual” is “a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of a mental or physical condition or because of a personal circumstance which results in an increased risk of harm to the person.” Elder abuse means the abuse, emotional abuse, neglect, isolation or sexual exploitation of an older individual.” The Attorney General is authorized to initiate charges of older individual abuse.
  • Creates a new crime of financial exploitation of an older individual, defined as a person 60 or older.
  • Moves Dependent Adult Abuse by a Caretaker into the criminal code from Dependent Adult Services, Chapter 235B.
    [3/9: 47-0 (Absent: Hogg, Nunn, Whiting)]

SF 534 – Law Enforcement and Certain Criminal Offenses

This is being touted as a “back-the-blue” bill. It incorporates many elements of the Governor’s proposed legislation to increase criminal penalties for certain behaviors relating to demonstrations and rioting. The bill includes:

Non-Criminal Section of the Bill – A driver exercising due care and who is not reckless or whose conduct does not constitute willful misconduct is immune from civil liability if the driver injures another person who is participating in a protest, demonstration, riot or unlawful assembly, and is blocking traffic on a public street or highway. This does not apply if the injured person was participating in the protest or demonstration with a valid permit allowing the demonstration at the location where the injury occurred.

Criminal Penalties

  • Includes pointing a laser at someone with the intent to cause pain or injure another in the definition of assault.
  • Includes civilian employees of law enforcement agencies and fire departments in the protected class that results in enhanced penalties for assaults upon individuals in this group of people. Penalties are increased for assaults upon this protected group and mandatory minimums are added.
  • It will be harassment in the first degree if someone harasses another who is lawfully in a place of public accommodation.
  • Criminal mischief will include damaging public property regardless of the cost. It’s a “D” felony.
  • Increases the penalty for rioting from an aggravated misdemeanor to a “D” felony.
  • Increases the penalty for unlawful assembly from a simple misdemeanor to an aggravated misdemeanor.
  • Adds to the definition of Disorderly Conduct:
  • It will be a serious misdemeanor when a person without lawful authority or color of authority obstructs any street, sidewalk, highway or other public way with the intent to hinder use by others.
  • It will be an aggravated misdemeanor when a person obstructs any street, sidewalk, highway, etc., under any of the following circumstances:
    • Obstructing a road, etc., when the speed restriction is between 55 mph and 70 mph
    • Commits property damage
    • Is present during an unlawful assembly
  • It will be a “D” felony when a person obstructs any street, sidewalk, highway, etc., under any of these circumstances:
    • Present during a riot
    • Causes bodily injury
  • It will be a “C” felony when a person who is obstructing a street, sidewalk, etc., causes serious bodily injury or death.
  • As amended on the floor, the bill creates the new crime of Interference With Public Disorder Control. Any person who possesses a tool, instrument or device with the intent to use it to suppress or disrupt law enforcement from legally controlling public disorder under this chapter commits an aggravated misdemeanor.
  • The bill requires any defendant arrested for criminal mischief, rioting, unlawful assembly, disorderly conduct by blocking streets, etc., to be held for at least 24 hours after arrest. The defendant may be released after appearance before a judge, and it is determined and that the defendant will not continue criminal behavior, and the judge explains in writing the reason for the release.
    [3/10: 31-17, party line (Absent: Hogg, Nunn)]