JUDICIARY – 2012 All-bill summary

SF 93 – Strangulation and Domestic Assault

SF 2092 –Dispute Resolution and Prosecuting Attorneys Training Coordinator

SF 2096 – County Confinement Reimbursements

SF 2203 – Non-substantive Code Editor’s Bill

SF 2208 – Confidentiality of Arrest Warrants

SF 2218 – School Bus Safety

SF 2231 – State Public Defender

SF 2260 – Iowa Nonprofit Corporation Act

SF 2265 – Notarial Acts

SF 2285 – Substantive Code Editor’s Bill

SF 2296 – Solicitation to Commit Murder

SF 2343 – Controlled Substances – Synthetic Cannabinoids and “bath salts”

HF 563 – Transparency in Private Attorney Contracts

HF 609 – Probate Bill 

HF 2321 – Updates the Iowa Uniform Commercial Code

HF 2370- Lis Pendens Changes

HF 2379- Expunging Certain Records

HF 2390- Obscene Material and Human Trafficking

HF 2399 – Scrap Metal Transactions

SF 93 enhances the penalty for certain domestic abuse assault cases. If a person knowingly impedes the normal breathing or circulation of the blood of another by applying pressure to the throat or neck of the other person, or by obstructing the nose or mouth of the person, that person commits an aggravated misdemeanor. However, if a person causes bodily injury while committing the above-described domestic assault, that person commits a class “D” felony. The class “D” felony created in this bill is not a forcible felony. This means that a person convicted of the offense would be eligible for a suspended or deferred sentence, or a deferred judgment. [3/7/11: 50-0]

SF 2092 eliminates a program for the establishment and support of locally organized informal dispute resolution centers in the office of prosecuting attorneys training coordinator of the Department of Justice. The program is redundant and has not been funded for years. [2/27: 50-0]

SF 2096 lengthens the time period in which a county may request reimbursement from the Department of Corrections (DOC) for keeping prisoners in the county jail who have been sentenced to the custody of the Department. The bill provides the counties with 30 days after the end of each calendar quarter within which to submit their requests to the DOC for reimbursement for holding state prisoners. Currently, the vouchers are required to be submitted within 15 days of the end of each calendar quarter. In addition, the amendment mandates that if a county does not submit its bill to the DOC by the end of the 30-day time period, the Department will deny the claim. Currently, the DOC has the discretion to deny claims made by the counties that are submitted after 15 days. [2/27: 50-0]

SF 2203 is this year’s non-substantive Code Editor’s bill. The bill is divided into five divisions that contain the Code editor’s recommendations for various minor changes designed to clean up the Iowa Code. The first division contains a variety of technical corrections in provisions scattered throughout the Code. The changes include corrections to Code and Act references, federal cites, terminology, grammar and format, as well as the correction of various clerical errors. The second division is focused on the renumbering of provisions in Volume V of the Code. The third division contains corrections to internal references to sections renumbered in division II of the bill. The fourth division contains a series of directives to correct hyphenation in several words as well as to renumber provisions in Volume V. The renumbering of the provisions listed here does not require internal reference corrections within the sections themselves or elsewhere in the Code. The fifth and last division contains the effective and applicability date provisions for the bill. [2/28: 50-0]

SF 2208 allows employees of the Department of Corrections and Community Based Corrections who have been authorized by the Director of the Department of Corrections to have access to confidential arrest warrant information. Under current law, peace officers, county attorneys, judicial officers and court employees have access to confidential arrest warrant information. In addition, the bill specifies that once a defendant has made an initial appearance in court, the arrest warrant information is no longer confidential. The Senate passed this bill previously, and it was amended by the House. The Senate accepted the House amendment, which gives the court the ability to determine circumstances under which a confidential arrest warrant could be disclosed. [4/3: 48-0 (Horn, Bertrand excused)]

SF 2218 is a bill relating to school bus safety. The bill:

**Enhances the penalty for drivers of vehicles that unlawfully pass a stopped school bus. Under current law, a person who unlawfully passes a school bus is subject to a $200 scheduled fine (a ticket). There is no enhancement under current law for more than one violation. This section creates a new penalty structure and drivers who unlawfully pass a stopped school bus are guilty of a simple misdemeanor for a first offense and will not receive a scheduled fine. The person will be subject to a potential fine of at least $250 up to $675 and/or up to 30 days in jail. For a second or subsequent violation, the driver is guilty of a serious misdemeanor and subject to a fine of at least $315 and up to $1,875 and up to one year in jail.

** Adds unlawfully passing a school bus to the list of traffic violations that are subject to additional penalties if, as a result of the violation, a person is seriously injured or killed. For a violation causing serious injury, the additional penalty is a fine of $500 or suspension of the violator’s driver’s license or operating privileges for not more than 90 days, or both. For a violation causing death, the penalty is a fine of $1,000 or suspension of the violator’s driver’s license or operating privileges for not more than 180 days, or both.

** Instructs the Department of Transportation, the Department of Public Safety and the Department of Education to jointly conduct a study or arrange for a study relating to school bus safety. The study will focus on the use of cameras mounted on school buses to aid enforcement of bus safety violations, safer bus routes, and school bus safety as a priority in driver training curriculum. Funding for the study will come out of the Department of Transportation’s statutory allocations fund. The report regarding the study is due to the General Assembly by December 31, 2012.

** Directs the Department of Transportation to treat unlawfully passing a school bus as a “serious” violation and initiate rulemaking that provides for tiers of administrative driver’s license suspensions for convictions for first, second or subsequent violations.

** Directs the Department of Transportation to include the form requesting Departmental (driver) reexamination of a person who may be physically or mentally unable to drive safely in the Iowa traffic and criminal software (TRACS). This is the software that almost all law enforcement agencies use when issuing tickets. This means that law enforcement would be able to electronically initiate the reexamination process.

** Directs the Department of Transportation, the Department of Public Safety, and the Department of Education to cooperate in establishing educational programs for public awareness of school bus safety laws.

** The portions of the bill dealing with the study, DOT’s adoption of rules, reexamination requests and public awareness programs are effective upon enactment. Criminal penalty enhancements will go into effect July 1, 2012. [3/1: 47-0 (Quirmbach, Fraise, Horn excused)]

SF 2231 relates to the practices and procedures of the State Public Defender. The bill:

** Restates the authority of the public defender to designate specific offices or attorneys to receive court appointments in a given case and county and expressly permits the public defender to enter into contracts based on something other than an hourly basis.

** Clarifies how appellate cases, which the appellate defender is unable to handle, are to be handled.

** Requires appointed attorneys to tell their client when they file an application to hire an expert or to exceed the fee limitations.

** Makes it clear that a person charged with a class A felony is not entitled to one retained attorney and one court-appointed attorney.

** Makes it clear that a person is required to reimburse the state for legal assistance provided, but only to the extent they are reasonably able to do so. [2/28:50-0]

SF 2260 is the Revised Iowa Nonprofit Corporation Act. The bill:

** Provides a process for termination and suspension of members of nonprofit corporations by permitting an organization to provide for termination in accordance with procedures set forth in the articles of incorporation or bylaws of the organization.

** Permits meetings to be held via the Internet or other electronic means.

** Sets forth a procedure for appointment of a chair of a member meeting in the absence of any provision in the articles or bylaws. In addition, it provides that unless otherwise provided in the articles of incorporation or bylaws, the chair will determine the rules of the meeting and such rules will be fair to the members.

** Includes provisions providing for inspectors of elections.

** Expressly recognizes that nonprofits can have advisory committees. They can be composed of non-board members and are strictly advisory in nature. Currently, the act only addresses board committees that can be made up of only board members.

** Addresses a process for handling situations where a director is presented a business opportunity that may be beneficial to the nonprofit corporation.

** Permits mergers between nonprofit corporations and unincorporated entities, including unincorporated nonprofit associations and maintains the restrictions imposed on mergers involving public benefit and religious corporations and for-profit or mutual-benefit entities.

**The Senate adopted a House amendment that deletes sections 11 and 14 of the bill, which imposed duties on directors and officers to disclose information not known by other directors. [3/26: 50-0]

SF 2265 repeals Iowa’s current Chapter 9E relating to Notarial Acts and replaces it with the Revised Uniform Law on Notarial Acts. The bill authorizes the performance of notarial acts by a “notarial officer,” which can be a notary public or any other individual authorized to perform a notarial act, such as a judge, clerk of court or any other individual who is specifically statutorily authorized. However, a notarial officer is prohibited from performing a notarial act in which the officer or the officer’s spouse is a party or in which either of them has a direct beneficial interest in the underlying transaction. The bill sets out a minimum standard for being a notary public. The bill also requires a personal appearance by a party before the notarial officer if the notarial act relates to a statement made in or a signature executed on a record. One of the most significant aspects of the bill is that it allows for notarial acts for electronic records. If the Secretary of State establishes standards for approval of technology, any technology selected must conform to those standards. [2/29: 50-0]

SF 2285 is divided into three divisions and contains the Code Editor’s recommendations to clean up more substantive issues in the Iowa Code. Although these changes may slightly alter the meaning of or eliminate existing provisions, the changes are not an attempt to make new policy but rather an attempt to conform the Code provisions to current law or practice. The first and longest division contains a variety of changes, including clean-up related to bills enacted in previous years; eliminating obsolete text; updating language that otherwise would refer to provisions that have been repealed or eliminated; conforming terminology used to refer to sanctions imposed in civil or administrative proceedings; and rewriting language to clarify the meaning of or restructure various provisions in the Code. The second division of this bill is focused on correcting references to provisions changed in division I of the bill. The third division contains the effective and applicability date provisions for the bill. [3/5: 49-0 (Behn excused)]

SF 2296 creates a specific crime of solicitation to commit murder and penalties for this crime. A person who solicits someone to commit murder, intending that the murder be carried out is guilty of solicitation to commit murder, a class “C” felony. Currently under Iowa law, there is the crime of solicitation to commit a felony (a class “D” felony), which applies to soliciting someone to commit any felony. [3/6: 47-1 (McCoy “no;” Courtney, Johnson excused)]

SF 2343 deals with controlled substances.  Division I of the bill was originally a Board of Pharmacy bill that updated changes to the controlled substance schedules making conforming changes to federal law. Division II of the bill expands the list of illegal synthetic cannabinoids (synthetic marijuana), commonly known by names such as K2 and spice. In addition, the bill expands the list of illegal synthetic cathinones, commonly referred to as “bath salts” because of their appearance. The bill attempts to outlaw multiple forms of synthetic cannabinoids or cathinones and is modeled after federal legislation currently pending in Congress. [5/7: 45-0 (Bacon, Behn, Chelgren, Johnson, Quirmbach excused)] 

HF 563 creates the Transparency in Private Attorney Contracts Act, which addresses the procedure to be followed when the state retains a private attorney to do work on its behalf. The bill relates to contingency fee contracts that private attorneys enter into with the state and limits contingency fees based on the amount of the recovery. The Attorney General must make a written determination that the contingency fee representation will be cost-effective and in the public interest. In addition, the Attorney General must follow the procurement process used by the Department of Administrative Services in seeking private attorneys unless there is a written determination that such a request is not feasible under the circumstances. All information related to a contingency fee contract is to be posted on the Attorney General’s Web site. [4/23: 49-0 (McKinley excused)]

HF 609 updates the Probate Code, Trust Code and Inheritance Tax Chapter. Many of the changes in the bill are designed to make the process of disposing of one’s assets at death the same whether it is by will through probate or via a revocable living trust. [3/28: 48-1 (Dvorsky “no;” Houser excused)]  The House amended HF 609 by adding language relating to the rule against perpetuities, which essentially would have done away with the rule in Iowa. On May 7, the Senate refused to concur with the House amendment. The House receded from its amendment and approved the Senate version.  

HF 2321 provides for further revisions to Article 9, Iowa’s Uniform Commercial Code, as recommended by the National Conference of Commissioners on Uniform State Laws. The goal is for all 50 states to enact these revisions, with a uniform effective date of July 1, 2013. [3/21: 50-0]

HF 2370 deals with service of process requirements in non-judicial foreclosures and sets up a specific process that cuts off the interest of a third party that claims to have an interest in real estate that has not been recorded. However, the third party can assert their interest under the bill under these circumstances:

**If a lawsuit is filed relating to real property, the party who claims to have the non-recorded interest can intervene in the lawsuit prior to entry of judgment. The action against the property can be a foreclosure, nuisance abatement or a municipal infraction lawsuit.

**Prior to the transfer of an interest in property, the third party can file an affidavit showing that the party filing the mortgage foreclosure, nuisance abatement or municipal infraction had actual notice of the claim of interest and the identity of the claimant.

**If someone claims a non-recorded interest in real property against which the city has initiated nuisance abatement proceedings, they must file an affidavit claiming to have an interest in the real property and it must be done within 90 days of the time a judgment is entered in the litigation brought by the city and the claimant must prove that the city had prior notice of the claimant’s interest. If the affidavit is not recorded within 90 days or the claimant fails to prove the city had actual notice of the claimant’s interest, then the entered judgment stands.

Sections 2 through 5 of the bill conform the service of process requirements for non-judicial foreclosures with the requirements relating to foreclosure actions. If a property is being foreclosed upon, regardless of the method being used, all persons who are to be provided notice will be served by one of the methods authorized under the law. [3/21: 49-0 (McKinley excused)]

HF 2379 requires that in addition to expunging the criminal records relating to a deferred judgment charge, the Judicial Branch must expunge the record of the criminal charges that were dropped relating to the same occurrence, if the individual who receives the deferred judgment successfully completes all the requirements related to the deferred judgment. “Expunged” means that the records will be kept separately from the court’s online records and will only be available to those authorized by law to see the records of the deferred judgment and not to the public. In addition, a record will only be expunged after a person has paid restitution, civil penalties, court costs, fees or other financial obligations ordered by the court. [3/21: 49-0 (McKinley excused)]

HF 2390 has two major components. One relates to human trafficking and creates a Class “D” felony for solicitation of commercial sexual activity if a person entices, recruits, coerces or attempts to entice, recruit or coerce anyone under the age of 18 or someone who is believed to be under the age of 18 for commercial sexual activity. Current law requires multiple people involved in a venture in order for a charge of human trafficking related to commercial sexual activity. This clarifies that one person can solicit for commercial sexual activity, which means any sex act or sexually explicit performance for which anything of value is given, promised to or received by any person and includes, but is not limited to, prostitution, participation in production of pornography and performance in strip clubs.

The bill adds solicitation of commercial sexual activity as a Tier III offense for sex offender registry purposes; expands the definition of human trafficking to include knowingly purchasing or attempting to purchase services involving commercial sexual activity from a victim or any person engaged in human trafficking; and specifies that ignorance of the age of the victim or belief that a victim was older is not a defense against a human trafficking charge.

The second component of the bill relates to obscenity and child pornography. The bill defines a new term, “visual depiction,” relating to obscenity in order to address the issue of electronic media that may contain multiple pornographic images, which under current Iowa law is considered one criminal charge. Under the bill, a visual depiction is “any picture, slide, photograph, digital or electronic image, negative image, undeveloped film, motion picture, videotape, digital or electronic recording, live transmission, or other pictorial or three-dimensional representation.” The Senate voted to approve an amendment that ties potential criminal charges relating to child pornography to the individual children involved in the visual depictions. For example, if you have 50 visual depictions such as 50 downloaded photographs on one computer and the same two children are in those 50 visual depictions, it would constitute two charges because the visual depictions involved two children. [3/26: 50-0]

HF 2399 relates to scrap metal transactions and the recording of scrap metal transactions. This bill is intended to help thwart the theft of certain scrap metals, primarily copper. When a person sells scrap metal to a dealer in Iowa, the seller must provide the seller’s name, address and place of business, if any, and present the dealer with a valid driver’s license or nonoperator’s identification card, military ID card, passport or other government-issued photo identification. After an initial transaction with a seller, the scrap metal dealer may only require the person’s name and place of business for subsequent purchases, if the dealer retains all information received during the initial transaction. Scrap metal dealers must keep a confidential log of all of the transactions, which must be provided to a law enforcement agency upon request during normal business hours if the agency has reasonable grounds to request such information as part of a criminal investigation. All scrap metal transactions that exceed a sale price of $50 will require payment by check or electronic funds transfer.

Exceptions to the requirements for recordkeeping in the bill include the transactions for the sale of catalytic converters for which the sale price is $75 or less, transactions in which a scrap metal dealer is selling scrap metal, and transactions in which the person selling the scrap metal is known to the scrap metal dealer purchasing the scrap metal to be an officer, employee, agent of an established commercial or industrial business. Violations are subject to a civil penalty of $100 for the first violation, $500 for a second violation and $1,000 for a third or subsequent violation. This bill preempts any local ordinance that regulates scrap metal transactions. However, the Senate adopted an amendment that allows cities with a population of greater than 150,000 with local ordinances related to scrap metal transactions to retain those ordinances. [4/4: 45-0 (Bertrand, Boettger, Horn, Houser, Seymour excused)]