Legislative session review

By James Carney, ISBA Legislative Counsel, Douglas Struyk, Assistant ISBA Legislative Counsel and Jenny Dorman, Assistant ISBA Legislative Counsel

The Iowa General Assembly adjourned on Wednesday, May 25, 2022, at 12:16 AM. The Governor is provided 30 days from adjournment to act on legislation received within three days of adjournment. The Governor had until June 24 to act on outstanding legislation. The state fiscal year began on July 1, 2022. This is also the default effective date of any legislation that does not expressly state an effective date.  

The 2022 session was the sixth consecutive session with Republicans controlling the House, Senate and Governor’s office. As we have experienced the past several years, the Republican trifecta impacted the legislature’s agenda, bringing issues to the forefront that would see less attention if control were divided between the parties including tort reform and changes to Iowa’s judicial nominating process. With all things considered, the 2022 session was extremely productive for the ISBA including the passage of priority issues, budget matters and the successful opposition to negative legislation.

This year is an election year following Iowa’s decennial redistricting. As a result of redistricting, 134 of 150 legislative seats are up for reelection and there was a significant number of primaries on June 7. In addition to the 134 legislative races, all statewide seats are on the ballot along with a U.S. Senate seat. We anticipate a very active election season this summer and fall. We also expect many new faces in the legislature in 2023 due to the large number of legislators not seeking reelection or being defeated in party primaries. Of the 17 lawyer legislators serving in 2022, eight will not be serving in the legislature in 2023. Seven lawyer-legislators announced their retirement and Representative Dustin Hite, former chair of the House Education Committee, was defeated in a primary race.

Tort reform

This session saw the return of two tort reform concepts from 2021, caps on noneconomic damages in both medical malpractice and commercial motor vehicle cases. These caps were identified as a priority of the Governor in her Condition of the State address. The legislature responded by drafting legislation containing both cap provisions along with unemployment reforms, HF 2279/SF 2275. The House and Senate passed the bills out of committee. The legislation would maintain the current “soft cap” and add a hard cap of $1 million in medical malpractice cases where there is substantial or permanent loss or impairment of a bodily function, substantial disfigurement or death. Additionally, the bills would cap noneconomic recoveries at $1 million and limit when claims for punitive or exemplary damages may be sought in commercial motor vehicle cases. Finally, the motor vehicle cap would also codify the McHaffie rule, McHaffie by and Through McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995), relieving an employer of liability for certain causes of action if the employee admits they were negligent. These bills remained on the unfinished business calendar and eligible for debate through the last day of session. Ultimately, the bills were not debated on the floor by either chamber, and they were not amended into other bills despite legislative consideration to do so.

The ISBA worked the entire session with legislators to develop and maintain legislative opposition to these two pieces of legislation. The lawyer-legislators were instrumental in developing opposition to these bills.  We also worked with the ISBA officers and the litigation legislative committee to press for local engagement by our ISBA members with their local legislators asking that they oppose these caps on recoveries. ISBA members must continue to work to educate their local legislators about the negative impact of caps on recoveries. 

Budget and funding

The Revenue Estimating Conference (REC) met on March 10, to review/update their estimates from their December 2021 meeting and to provide the revised estimates for FY 2022 and FY 2023. The December REC is what the Governor and the legislature must base their budget on unless the March 2022 REC for FY 2023 is lower than the December 2021 REC. If the March REC is greater than the December REC, the legislature is bound by the December Estimate.

Net receipts plus transfers:

FY 2019 Actual $7.859 billion

FY 2020 Actual $7.931 billion (increase of 0.9%)

FY 2021 Actual $8.801 billion (10.97% or $870 million)

FY 2022 December REC $9.061 billion (3.0% or $260 million)

FY 2022 March REC $9.171 billion (4.2% or $371 million)

FY 2023 December REC $9.211 billion (1.7% or $150 million)

FY 2023 March REC $9.156 billion (-0.2% or -$14.8 million)

The REC continued to acknowledge the 10.97% growth in state revenue for FY 2021 and incorporated the growth into both FY 2022 and FY 2023 estimates with additional growth.

FY 2022 - The REC increased their FY 2022 estimate by $110 million from December estimating $371 million (4.2%) in growth over FY 2021. This incorporated the significant growth experienced in state revenues in FY 2021 bringing the total revenue to $9.171 billion.

FY 2023 - The REC decreased their December FY 2023 estimate by $55 million totaling a $14.8 million (0.2%) decrease compared to FY 2022. This brings the total net receipts for FY 2023 to $9.156 billion. The estimated changes compared to the revised FY 2022 level include a decrease of 1.6% in gross personal income tax, an increase of 4.2% in gross sales/use tax, and a decrease of 6.3% in gross corporate income tax receipts. This totals a reduction of $263.3 million.

Net Appropriations for FY 2020 $7.819 billion

Net Appropriations for FY 2021 $7.823 billion

Total Appropriations for FY 2022 $8.124 billion

Estimated FY 2023 revenues exceed the FY 2022 enacted budget by $1.032 billion.  

Additionally, the state still has reserve funds in the following areas: (Estimated FY 2022)

Cash Reserve Fund $612.6 million

Economic Emergency Fund $204.2 million

Taxpayer Relief Fund $1.054 billion

Estimated Ending Balance FY 2022 $1.284 billion

Total $3.156 billion

FY 2024 - The preliminary FY 2024 General Fund revenues are expected to be $8.966 billion (-2.1% vs 2023) due to the tax cuts in HF 2317 signed by the Governor March 1, 2022.

Based on the latest REC and the status of the reserve funds, the state budget and state finances are in a strong position.  

Judicial branch & indigent defense funding

As of the date of filing this article, the Governor had not acted on any budget bills. All budget bills are subject to line-item veto.

Again, this session, legislators clearly identified the judicial branch and indigent defense as priorities while budgets were being considered. Judicial Budget Chairs, Representative Worthan, (R) Storm Lake, and Senator Julian Garrett, (R) Indianola, provided the judicial branch with nearly all their funding requests including a 2% salary increase for judges and magistrates. Additionally, they passed a $2 per hour increase in the rate for indigent defense contract attorneys bringing the total increase by the 89th General Assembly to $5 per hour. The $2 per hour increase equates to approximately $1 million in additional fees to the 600 lawyers representing indigent defense cases. For appointments made on or after July 1, 2022, the reasonable compensation shall be calculated based on $78 per hour for class “A” felonies, $73 per hour for class “B” felonies, and $68 per hour for all other cases. 

Status of key ISBA budget areas:  

Judicial Branch - $190,100,550 (net $5,360,298 increase 2.8%)

Jury Revolving Fund - $3,600,000 (flat funding)

State Public Defender - $30,112,503 ($629,383 increase 2.13%)

Indigent Defense Contracts - $42,160,374 ($1,200,000 increase 2.9%)

Poverty Grants - $2,634,601 (flat funding)

Secretary of State Business Services - $1,420,646 (flat funding)

Judicial nominating & judicial qualifications committee

The legislature reviewed several bills addressing judicial nominating this session. The ISBA worked with key legislators to find compromise on several judicial nominating changes. HF 2481 was signed into law on April 21. The legislation makes multiple changes to judicial nominating:

• Allows prospective judges to make application for a judicial opening in a county contiguous with the judicial election district to which they are nominated.
• Increases the number of nominees submitted to the Governor for Court of Appeals vacancies from three to five.
• Changes the nomination process to for district association judges to the same process as used for district court judges.
• It retains a judge to serve on the commission.

In addition to the changes in HF 2481, the judicial branch budget bill HF 2558 contains language removing the requirement that the senior judge serve as the chair of the nominating commission. Under the legislation, which is on the Governor’s desk, the commission would select their own chair which may be the senior judge.  The original language as amended by the Senate removed the senior judge from the commission and provided the Governor with a sixth appointee. This language was rejected by the House.

The legislature considered several bills impacting the Judicial Qualifications Committee (JQC) this session.  HSB 676 would have allowed a member of the General Assembly to have access to confidential records of the commission after the JQC’s action is final. As part of this process, the member was required to keep the information confidential. This bill was amended by the House to allow a standing committee of the legislature to have access to the confidential information if the standing committee had initiated an investigation pursuant to Iowa Code section 2.15(1)b. This legislation passed the House but was not advanced by the Senate.

Iowa State Bar Association affirmative agenda

This session, the ISBA had seven bills on the Affirmative Agenda. Of these bills, four have signed into law by the Governor. We have included the Affirmative Legislation Chart on page XX.  The Affirmative bills that did not pass this session included Family Law’s “Disestablishment of Paternity” legislation, Probate & Trust Law’s “Administration of Wills Updates” and the guardianship and conservatorship corrective bills. The ISBA and other stakeholders have been working to find compromise on these bills for several years and hope to find resolution during the 2022 interim.

Significant legislation of interest to the Iowa State Bar Association that passed

HF 2496 Brady-Giglio list. This legislation requires prosecuting agencies that maintain a Brady-Giglio list to have a policy that includes the criteria used to place an officer on the list; that gives the officer the right to receive notice before being placed on the list and notice of the decision, the right of the officer to request reconsideration and to submit supporting evidence and the right to notice on a final decision. This legislation does not limit the duty of the prosecuting agency to produce all Brady-Giglio discovery evidence and material as required by the United States Constitution, the Constitution of Iowa and the rules of Criminal Procedure including the placement of the officer’s name on the Brady-Giglio List, while the decision or request for reconsideration is still being considered. Additionally, this legislation does not create a new private cause of action against a prosecuting agency or their employees. Finally, this legislation was amended by the Senate to sunset July 1, 2023.

HF 2562 Mobile home park omnibus. A bill for an act relating to property law, including mobile homes and manufactured housing, rental agreements, landlord and tenant remedies for retaliation, wrongful failure to provide essential services, rent increases, the sale of manufactured home community or mobile home park, regulation by counties and cities of continuing nonconforming uses of manufactured, modular, and mobile homes, forcible entry and detainer actions, abandoned mobile homes, and including effective date and applicability. This was amended to include language from SF 469 (2021) impacting non-conforming uses. The amended language was similar to SF 469 but amended to require a substantial increase in risk to the safety of life or property to replace a preexisting home.  

SF 333 Expanded immunity protections for emergency vehicle use. This legislation allows the driver of an emergency vehicle to disobey certain traffic laws in the pursuit of a perpetrator who has committed a misdemeanor. More specifically, this legislation allows drivers of fire and EMS vehicles, and police officers on bikes, to go through red lights or stop signs without stopping in pursuit. The bill also allows for ambulances to transport a patient at speeds over the speed limit without using a siren or lights in specific circumstances. Additionally, this bill authorizes a peace officer or reserve peace officers operating an authorized emergency vehicle without using an audible warning device or visual signaling device if such action occurs over the shortest distance necessary, does not recklessly endanger persons or property,  or if the officer reasonably believes based on the facts and circumstances at the time that a suspected violator’s knowledge of the officer’s proximity may cause the suspected violator to destroy evidence of a suspected felony or aggravated misdemeanor, evade apprehension or endanger the public or the officer. This law also includes provisions that authorizes the use of drivers of emergency use vehicles in parades and funeral processions, so long as they act with due regard to the safety of all persons at these events. Finally, this legislation provides that in each of these circumstances the driver of the authorized emergency vehicle, so long as they have successfully completed any required training for their emergency vehicle, is immune from liability unless they acted with reckless disregard to persons or property. Moreover, if a person brings a tort claim against the driver of an authorized emergency vehicle, a municipality, as defined in section 670.1, this state, or any other entity on whose behalf the driver is operating the authorized emergency vehicle, for any injury or loss arising from the operation of the authorized emergency vehicle, the court shall determine, on motion by any party or on its own motion, whether the person has presented sufficient, admissible evidence to support a prima facie finding of recklessness before the matter proceeds to trial. This legislation became effective upon enactment.

SF 183  Public improvement contracts. This legislation relates to a construction-manager-at-risk (CMAR) construction alternative delivery method and prohibits certain other alternative delivery methods in the public sector and includes other effective dates and applicability provisions. This legislation authorizes a governmental entity to enter into a guaranteed maximum price contract for the construction of a public improvement project, unless that public improvement project relates to a highway, bridge or culvert construction. For those construction projects, CMAR is strictly prohibited. Additionally, this legislation adopts procedures and requirements for public entities that use CMAR contracts, including public disclosures, a request for qualifications, a request for proposal and the selection of bid winners. This legislation also prohibits governmental entities from utilizing the fee-based selection of an architect, landscape architect or engineer for a public improvement. Finally, this legislation prohibits all governmental entities from entering into a design-build contract for the construction of a public improvement. This prohibition includes the Board of Regents.

HF 2239 Sex abuse evidentiary changes. This legislation deems that the rule of evidence for sexual abuse cases applies to discovery proceedings and post-conviction proceedings. Additionally, this legislation creates hearsay exceptions for children in physical and sexual abuse cases and for persons with developmental disabilities and cognitive impairment. Finally, this bill only requires substantial compliance with the law to be applicable. 

HF 2507 Iowa Family First Act – Chapter 232 rewrite. This legislation completely overhauls Iowa’s current Chapter 232 to align with the Iowa Family First Act with federal law. This legislation specifies that the least restrictive environment for the placement of a child includes a preference for family or fictive kin. Additionally, this bill redefines a Court Appointed Special Advocate (CASA), Guardian Ad Litem (GAL), guardian, putative father and relative, and makes other definitional changes and changes in duties. Runaways: This legislation strikes placement in a runaway assessment center as an option for juveniles. Notice: This bill allows for service in juvenile and parental rights proceedings to be done by notice if a court believes service is otherwise impracticable. Reports: This legislation requires a report of child abuse due to drug making to be done within five years as well as requires reports of possible child abuse to be made orally to the Department of Human Services (DHS). Child In Need of Assistance (CINA): This legislation makes changes to legislative findings and requires courts to find by substantial evidence that a need for removal exists before issuing an ex parte order. Additionally, this new law includes requirements to consider placement of the child with another parent and requires a foster care provider be given decision making authority in these placements. The legislation also includes provisions on placement with other family or fictive kin; adds a new requirement that the court give deference to DHS placement decisions; and includes provisions on domestic abuse situations. Finally, the legislation presumes a child over 10 should be at CINA hearings and included other provisions on procedures, evidence and matters related to CINA hearings. Father: Deems a putative father is not a necessary party until paternity is established. Gives a putative father the right to counsel. Murder: Allows a court to waive reasonable efforts to avoid a permanent removal for a parent convicted of murder offenses. Requires a county attorney to file for termination of parental rights for parents convicted of murder/voluntary manslaughter offenses. Rights: Does not require a finding of a non-accidental physical injury to terminate parental rights. Allows a court to terminate parental rights after a CINA finding if the parent is a danger to people or has a severe SA disorder. Includes provisions on continuing relationships with other siblings, placements and other matters. Other: Prohibits reporting a CASA as a GAL for various proceedings. Includes provisions on shelter/detention costs and on the use of decategorization funds. Shifts certain duties to juvenile courts from DHS. 

SF 522 Elder crimes. Senate File 522 relates to older individuals and dependent adults, creates certain criminal offenses and civil actions and provides penalties. The bill establishes several new crimes: Older Individual Assault: Assault, as defined in Iowa Code section 708.1, of an older individual, defined as an individual who is 60 years of age or older. This crime would be punishable by penalties ranging from a simple misdemeanor to a Class D felony depending on the circumstances of the assault. The bill also provides for the determination of whether a violation is a second or subsequent offense and provides for minimum sentencing for offenders. Theft against an older individual: Enhances the penalties for the existing crime of theft by one degree. Financial exploitation of an older individual: This crime occurs when a person stands in a position of trust or confidence with an older individual and knowingly, and by undue influence, deception, coercion, fraud, breach of fiduciary duty or extortion, obtains control over or otherwise uses the benefits, property, resources, belongings or assets of the older individual involved. The criminal penalties range from a serious misdemeanor to a Class B felony based on the amount of benefits, property, resources, belongings or assets of the older individual involved. Penalties: The bill establishes criminal penalties for elder abuse ranging from a serious misdemeanor to a Class C felony depending on the circumstances and resulting injuries of the abuse. Elder abuse is defined as the abuse, emotional abuse, neglect, isolation or sexual exploitation of an older individual. The bill also relocates the criminal penalties for dependent adult abuse as they currently exist under Iowa Code Chapter 235B to Iowa Code Chapter 726 and makes conforming changes throughout the Iowa Code. Signed on 6/15/22. Effective on 7/1/22.

Significant legislation that failed to pass

HF 2279 & SF 2275 Unemployment insurance, medical malpractice reform and commercial motor vehicle liability changes:

Medical malpractice caps provisions. Under current law, the limit for the total amount recoverable for noneconomic damages for personal injury or death against a health care provider in a civil action is $250,000, unless the jury determines that there is substantial or permanent loss or impairment of a bodily function, substantial disfigurement or death, which warrants a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. This bill increases the cap from $250,000 to $1 million and removes the exception to the cap.

Commercial motor carrier liability provisions.  The bill provides that an employer’s liability who is a defendant in a civil action involving a commercial motor vehicle for damages caused by negligence of an employee acting within the scope and course of employment shall be based on respondeat superior. Upon motion of an employer, and notwithstanding Code section 671A.2, a trial court shall dismiss from the action any claim of the employer’s direct negligence in hiring, training, supervising or trusting an employee, or other claim of direct negligence on the part of the employer for the employee’s harmful conduct, or other similar claims, if the employer stipulates that at the time of the event that caused the damages that the person whose negligence is the basis of the action is the employer’s employee and the employee was acting within the course and scope of employment with the employer. If an employer makes the stipulation with respect to an employee, and the employee’s negligence is found to have caused or contributed to causing the damages, the employer shall be adjudged vicariously liable for the resulting damages. The bill provides that the total amount recoverable in any civil action for noneconomic damages for personal injury or death against the owner or operator of a commercial motor vehicle shall be limited to $1 million for any occurrence regardless of the number of derivative claims, theories of liability or defendants in the civil action. The bill provides that a claim for punitive or exemplary damages in an action governed by Code section 668A.1 shall not be included in any initial claim for relief. A claim for punitive or exemplary damages may be allowed by amendment to the pleadings only after the exchange of initial disclosures and after the plaintiff establishes prima facie proof of a triable issue. After the plaintiff establishes the existence of a triable issue of punitive or exemplary damages, the court may allow additional discovery on the issue of punitive or exemplary damages. 

HF 202 Presumption of joint physical care. This bill changes current law to require rather than permit, a judge to order joint physical custody in instances where the court awards joint legal custody. Establishes a rebuttable presumption in favor of joint physical custody in child custody cases where joint legal custody was granted. Requires the court to give clear and convincing evidence that the award of joint physical custody is not in the child’s best interest and is unreasonable. Provides no factors for the court to consider. Only deems a finding of child abuse sufficient to rebut the presumption. Strikes the consideration of whether the parents agree or don’t agree on joint custody and physical care from the determination of joint custody/care.

HF 486 Uniform Public Expression Protection Act. The bill enacts the “Uniform Public Expression Protection Act,” which creates a special motion for expedited relief in actions involving the exercise of the right of freedom of speech and of the press, the right to assemble and petition and the right of association. The bill establishes that the new Code chapter applies to cause of action asserted in a civil action against a person based on the person’s communication in a legislative, executive, judicial, administrative or other governmental proceeding; communication on an issue under consideration or review in a legislative, executive, judicial, administrative or other governmental proceeding; or exercise of the person’s first amendment right on a matter of public concern. Special Motion Procedure: The bill provides that no later than 60 days after being served with a cause of action to which the new Code chapter applies, or at a later time upon showing of good cause, a party may file a special motion for expedited relief to dismiss the cause of action or part of the cause of action. The filing of special motion stays all other proceedings between the parties, and the court has discretion to stay a proceeding involving another party if the hearing or ruling on motion would adjudicate an issue material to the motion. A hearing shall be held no later than 60 days after filing the motion, unless the court orders a later hearing to allow discovery or for good cause. A stay remains in effect until an order ruling on the motion is entered and the 30-day appeal period following the order has concluded. During a stay, the court may allow limited discovery if a party shows the information is not reasonably available and that specific information is necessary to establish whether a party has satisfied the party’s burden under the new Code chapter. The parties’ ability to voluntarily dismiss or move to sever is not affected by the special motion for expedited relief stay. The bill provides that the court may award court costs, reasonable attorney fees and reasonable litigation fees relating to the special motion to the prevailing party

Iowa State Bar Association Legislative Bill Summaries compiled from Legislative Services Agency Documents and Bill Explanations; Iowa Legislative News Service Reports, and Bill Track 50 Legislative Summaries.

The Iowa State Bar Association legislative team appreciates the countless hours that ISBA Legislative Committee members invest in reviewing legislation, providing comments and participating in hearings. The ISBA is very well respected at the Capitol due to the expertise and accessibility of the ISBA members. Thank you all for your efforts this session and your great support.