Judiciary Committee – Week 3, 2021


SJR 1 – Constitutional Amendment Regarding the Right to Bear Arms

SJR 1 proposes an amendment to the State Constitution, conferring the right of the people to keep and bear arms.  Iowa’s Constitution currently does not include language relating to the right to possess arms. Iowans’ rights to possess firearms are protected through the Second Amendment to the U.S. Constitution.

The proposed Iowa Constitutional Amendment states: “Right to keep and bear arms. Sec. IA. The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.”

Only three states — Missouri, Louisiana and Alabama — have language that requires strict scrutiny for judicial review of laws relating to firearms restrictions. 

Strict scrutiny, which is required in SJR 1, is the highest standard of judicial review in U.S. courts. This standard starts with the presumption that a law or government action is unconstitutional. The U.S. Supreme Court generally reserves strict scrutiny standards for fundamental rights, either those included in the Bill of Rights or as part of the “liberty clause” of the 14th Amendment on due process. Strict scrutiny is also used for certain classes of people that deserve the highest level of protection, such as restrictions based on race, national origin, religion and alienage.

The strict scrutiny test generally requires three elements:

  1. It must be a compelling government interest.
  2. The government action must be narrowly tailored to meet that interest.
  3. The government action must be the least restrictive means for meeting that interest

Article X of the Iowa Constitution requires any proposed Constitutional amendment to pass two consecutive General Assemblies and then be submitted to a vote of the people. This proposed Constitutional amendment has already successfully passed one General Assembly. If it passes again this session, the next step is a vote of the people at the next general election.
[1/26: 10-4, party line (Absent: Bisignano)]

SF 30 – Law Enforcement and Emergency Medical Care Providers Carrying Weapons

Under current law, law enforcement officers in Iowa who possess a professional permit to carry a weapon may enter school grounds with their weapon. However, federal officers and non-certified officers are not included in that group. This bill would allow federal officers and yet-to-be-certified peace officers (both have law enforcement firearms training) to carry weapons on school grounds at all times.

SF 30 also allows emergency medical care providers, referred to as EMCs, who accompany police tactical teams into potentially high-casualty situations where a threat is still present to be issued a professional permit to carry weapons. Professional permits allow the holder to carry the weapon only when engaged in their employment and when going to and from their employment. To obtain a professional permit to carry, EMCs must train with the tactical team and complete a law enforcement agency firearm safety training course, as required of peace officers. An EMC must not otherwise be disqualified from possessing a weapon.

[1/26: short form (Absent: Bisignano)]

SF 44 – Law Enforcement Sexual Misconduct

SF 44 provides that a peace officer who engages in a sex act with any individual in the officer’s custody commits a class “D” felony. Under current Iowa law, this is not prohibited if the sex act is claimed to be “consensual.”

Iowa is one of around 33 states that does not outlaw this behavior, and there have been news stories in recent years highlighting the lack of state laws prohibiting sex acts between officers and detainees. The power imbalance is significant between a law enforcement officer and a detainee. And although it is hoped that the occurrence of such behavior is infrequent, it is not unheard of and needs to be addressed through legislation.

Iowa law does prohibit any employee, including a peace officer, who works at a jail, prison or juvenile detention facility from engaging in a sex act with a person confined to the prison, jail, or juvenile facility.
[1/26: short form (Absent: Bisignano)]

SSB 1001 – Definition of Disorderly Conduct

Under current Iowa law, a person engages in disorderly conduct when they make loud and raucous noise in the vicinity of a residence or public building and thereby cause unreasonable distress to the occupants.

Senate Study Bill 1001 adds language that will require a person to intentionally or recklessly cause unreasonable distress to the occupants of the residence or building. Intent or recklessness is not required under the current disorderly conduct statute.

The bill was brought forward and presented as a necessary fix to Iowa’s disorderly conduct statute because of a federal district court decision, Miano and Rolland v. Tom Miller, et al., that declared Iowa’s disorderly conduct statute void for vagueness and consequently unconstitutional.
[1/26: short form (Absent: Bisignano)]

SSB 1008 – Guardians Ad Litem for Child Witnesses

Under current law a child prosecution witness who is under the age of 14 is entitled to have a guardian ad litem (GAL) appointed to represent their interests in cases involving sex abuse, human trafficking, incest, neglect or abandonment of a dependent person, and child endangerment or sexual exploitation of a minor. Senate Study Bill 1008 changes the definition of child to include all persons under 18. Thus, all child prosecution witnesses in these particular cases will be entitled to have a guardian ad litem. The GAL must be a practicing attorney and file reports with the court if the court so requires.

This bill comes from the County Attorney Association. Members of the Association provided examples of cases in which minor victims aged 14, 15, 16 and 17 had a parent or guardian who did not provide support and were not looking out for the child’s best interests in criminal proceedings. SSB 1008 will allow the court to appoint a GAL in these cases.
[1/26: short form (Absent: Bisignano)]

SSB 1012 – Certifications of Trusts

Senate Study Bill 1012 comes from the Iowa State Bar Association Probate and Trust Law Section. In 2019, legislation allowing one trustee to provide a certification of trust was enacted. Previous law required all trustees to provide certification if there was more than one trustee. A certification of trust is a document provided to a third party whereby a trustee or trustees verify a trust’s existence and the authority to act on behalf of the trust. This is in lieu of a third party requiring to see the entire trust document.

Since passage of that legislation, it has been discovered that the process for certification needs some fixes. This bill would help achieve those fixes by:

  • Requiring that a certification of trust give the names of all currently acting trustees, and if there is more than one currently acting trustee, it must state whether a trustee may act individually, by a majority decision or a unanimous decision.
  • Adding the option that a certification of trust be dated and certified under penalty of perjury. The current requirement for certification is that it be subscribed and sworn to under penalty of perjury before a notary public. Either method would be allowed under SSB 1012.
  • Stating that if abatement of trust assets is necessary to pay debts, taxes, etc., the share of a surviving spouse who does not take the elective must be abated last.
    [1/26: short form (Absent: Bisignano)]

SSB 1013 – Definition of Sex Act

SSB 1013 expands the definition of sex act or sexual activity in the Iowa Criminal Code. Under this bill, the definition of a sex act would include contact between the “mouth and anus” of two or more persons. 

In addition, a sex act also would be defined to include contact between any body part of one person and the genitalia or anus of another person. The current definition specifies contact between the finger or hand of one person and the genitalia or anus of another person. Note that licensed healthcare workers are exempted under the law when in the performance of their practice.

The bill also adds a new paragraph to the definition of sex act to include: “The touching of a person’s own genitals or anus with a finger, hand, artificial sexual organ or other similar device at the direction of another person.”
[1/26: short form (Absent: Bisignano)]