House File 683 - Enrolled

PAG LIN

  1  1                                      HOUSE FILE 683
  1  2
  1  3                             AN ACT
  1  4 AUTHORIZING THE APPOINTMENT OF AN ATTORNEY TO REPRESENT AN
  1  5    INDIGENT PERSON DURING A TERMINATION OF PARENTAL RIGHTS
  1  6    PROCEEDING OR AN INDIGENT PAROLE VIOLATOR, AND PROVIDING
  1  7    EFFECTIVE AND RETROACTIVE APPLICABILITY DATE PROVISIONS.
  1  8
  1  9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1 10
  1 11    Section 1.  Section 13B.4, subsection 1, Code 2005, is
  1 12 amended to read as follows:
  1 13    1.  The state public defender shall coordinate the
  1 14 provision of legal representation of all indigents under
  1 15 arrest or charged with a crime, seeking postconviction relief,
  1 16 against whom a contempt action is pending, in proceedings
  1 17 under section 811.1A or chapter 229A or 812, in juvenile
  1 18 proceedings, on appeal in criminal cases, and on appeal in
  1 19 proceedings to obtain postconviction relief when ordered to do
  1 20 so by the district court in which the judgment or order was
  1 21 issued, and on a reopening of a sentence proceeding, and may
  1 22 provide for the representation of indigents in proceedings
  1 23 instituted pursuant to section 908.11 chapter 908.  The state
  1 24 public defender shall not engage in the private practice of
  1 25 law.
  1 26    Sec. 2.  Section 600A.2, Code 2005, is amended by adding
  1 27 the following new subsection:
  1 28    NEW SUBSECTION.  10A.  "Indigent" means a person has an
  1 29 income level at or below one hundred percent of the United
  1 30 States poverty level as defined by the most recently revised
  1 31 poverty income guidelines published by the United States
  1 32 department of health and human services, unless the court
  1 33 determines that the person is able to pay for the cost of an
  1 34 attorney in the pending case.  In making the determination of
  1 35 a person's ability to pay for the cost of an attorney, the
  2  1 court shall consider the person's income and the availability
  2  2 of any assets subject to execution, including but not limited
  2  3 to cash, stocks, bonds, and any other property which may be
  2  4 applied to the satisfaction of judgments, and the nature and
  2  5 complexity of the case.
  2  6    Sec. 3.  Section 600A.6, subsection 3, Code 2005, is
  2  7 amended by adding the following new paragraph:
  2  8    NEW PARAGRAPH.  c.  A statement that the person against
  2  9 whom a proceeding for termination of parental rights is
  2 10 brought shall have the right to counsel pursuant to section
  2 11 600A.6A.
  2 12    Sec. 4.  NEW SECTION.  600A.6A  RIGHT TO AND APPOINTMENT OF
  2 13 COUNSEL.
  2 14    1.  Upon the filing of a petition for termination of
  2 15 parental rights under this chapter, the parent identified in
  2 16 the petition shall have the right to counsel in connection
  2 17 with all subsequent hearings and proceedings.
  2 18    2.  If the parent against whom the petition is filed
  2 19 desires but is financially unable to employ counsel, the
  2 20 court, following an in=court colloquy, shall appoint counsel
  2 21 for the person if all of the following criteria are met:
  2 22    a.  The person requests appointment of counsel.
  2 23    b.  The person is indigent.
  2 24    c.  The court determines both of the following:
  2 25    (1)  The person, because of lack of skill or education,
  2 26 would have difficulty in presenting the person's version of
  2 27 the facts in dispute, particularly where the presentation of
  2 28 the facts requires the examination or cross=examination of
  2 29 witnesses or the presentation of complex documentary evidence.
  2 30    (2)  The person has a colorable defense to the termination
  2 31 of parental rights, or there are substantial reasons that make
  2 32 termination of parental rights inappropriate.
  2 33    Sec. 5.  NEW SECTION.  600A.6B  PAYMENT OF ATTORNEY FEES.
  2 34    1.  A person filing a petition for termination of parental
  2 35 rights under this chapter or the person on whose behalf the
  3  1 petition is filed shall be responsible for the payment of
  3  2 reasonable attorney fees for counsel appointed pursuant to
  3  3 section 600A.6A unless the court determines that the person
  3  4 filing the petition or the person on whose behalf the petition
  3  5 is filed is indigent.
  3  6    2.  If the person filing the petition or the person on
  3  7 whose behalf the petition is filed is indigent, the appointed
  3  8 attorney shall be paid reasonable attorney fees as determined
  3  9 by the state public defender.
  3 10    3.  The state public defender shall review all the claims
  3 11 submitted under this section and shall have the same authority
  3 12 with regard to the payment of these claims as the state public
  3 13 defender has with regard to claims submitted under chapters
  3 14 13B and 815, including the authority to adopt rules concerning
  3 15 the review and payment of claims submitted.
  3 16    Sec. 6.  Section 602.1302, subsection 3, Code 2005, is
  3 17 amended to read as follows:
  3 18    3.  A revolving fund is created in the state treasury for
  3 19 the payment of jury and witness fees, mileage, and costs
  3 20 related to summoning jurors by the judicial branch, and
  3 21 attorney fees paid by the state public defender for counsel
  3 22 appointed pursuant to section 600A.6A.  The judicial branch
  3 23 shall deposit any reimbursements to the state for the payment
  3 24 of jury and witness fees and mileage in the revolving fund.
  3 25 In each calendar quarter the judicial branch shall reimburse
  3 26 the state public defender for attorney fees paid pursuant to
  3 27 section 600A.6B.  Notwithstanding section 8.33, unencumbered
  3 28 and unobligated receipts in the revolving fund at the end of a
  3 29 fiscal year do not revert to the general fund of the state.
  3 30 The judicial branch shall on or before February 1 file a
  3 31 financial accounting of the moneys in the revolving fund with
  3 32 the legislative services agency.  The accounting shall include
  3 33 an estimate of disbursements from the revolving fund for the
  3 34 remainder of the fiscal year and for the next fiscal year.
  3 35    Sec. 7.  Section 602.8102, subsection 133, Code 2005, is
  4  1 amended by striking the subsection.
  4  2    Sec. 8.  Section 815.10, subsection 1, Code 2005, is
  4  3 amended to read as follows:
  4  4    1.  The court, for cause and upon its own motion or upon
  4  5 application by an indigent person or a public defender, shall
  4  6 appoint the state public defender's designee pursuant to
  4  7 section 13B.4 to represent an indigent person at any stage of
  4  8 the criminal, postconviction, contempt, commitment under
  4  9 chapter 229A, termination under chapter 600A, detention under
  4 10 section 811.1A, competency under chapter 812, parole
  4 11 revocation if applicable under section 908.2A, or juvenile
  4 12 proceedings or on appeal of any criminal, postconviction,
  4 13 contempt, commitment under chapter 229A, termination under
  4 14 chapter 600A, detention under section 811.1A, competency under
  4 15 chapter 812, parole revocation under chapter 908, or juvenile
  4 16 action in which the indigent person is entitled to legal
  4 17 assistance at public expense.  However, in juvenile cases, the
  4 18 court may directly appoint an existing nonprofit corporation
  4 19 established for and engaged in the provision of legal services
  4 20 for juveniles.  An appointment shall not be made unless the
  4 21 person is determined to be indigent under section 815.9.  Only
  4 22 one attorney shall be appointed in all cases, except that in
  4 23 class "A" felony cases the court may appoint two attorneys.
  4 24    Sec. 9.  Section 815.11, Code 2005, is amended to read as
  4 25 follows:
  4 26    815.11  APPROPRIATIONS FOR INDIGENT DEFENSE.
  4 27    Costs incurred under chapter 229A, 665, or 822, or 908, or
  4 28 section 232.141, subsection 3, paragraph "c", or section
  4 29 598.23A, 600A.6B, 814.9, 814.10, 814.11, 815.4, 815.7, or
  4 30 815.10, or 908.11 on behalf of an indigent shall be paid from
  4 31 funds appropriated by the general assembly to the office of
  4 32 the state public defender in the department of inspections and
  4 33 appeals for those purposes.  Costs incurred representing an
  4 34 indigent defendant in a contempt action, or representing an
  4 35 indigent juvenile in a juvenile court proceeding under chapter
  5  1 600, are also payable from these funds.  However, costs
  5  2 incurred in any administrative proceeding or in any other
  5  3 proceeding under chapter 598, 600, 600A, 633, or 915 or other
  5  4 provisions of the Code or administrative rules are not payable
  5  5 from these funds.
  5  6    Sec. 10.  Section 908.2, Code 2005, is amended to read as
  5  7 follows:
  5  8    908.2  INITIAL APPEARANCE == BAIL.
  5  9    1.  An officer making an arrest of an alleged parole
  5 10 violator shall take the arrested person before a magistrate
  5 11 without unnecessary delay for an initial appearance.  At that
  5 12 time the alleged parole violator shall be furnished with a the
  5 13 initial appearance the magistrate shall do all of the
  5 14 following:
  5 15    a.  Provide written notice of the claimed violation and
  5 16 shall be given.
  5 17    b.  Provide notice that a parole revocation hearing will
  5 18 take place and that its purpose is to determine whether the
  5 19 alleged parole violation occurred and whether the alleged
  5 20 violator's parole should be revoked.
  5 21    c.  Advise the alleged parole violator of the right to
  5 22 request an appointed attorney.
  5 23    2.  The magistrate may order the alleged parole violator
  5 24 confined in the county jail or may order the alleged parole
  5 25 violator released on bail under terms and conditions as the
  5 26 magistrate may require.  Admittance to bail is discretionary
  5 27 with the magistrate and is not a matter of right.  A person
  5 28 for whom bail is set may make application for amendment of
  5 29 bail to a district judge or district associate judge having
  5 30 jurisdiction to amend the order.  The motion shall be promptly
  5 31 set for hearing and a record shall be made of the hearing.
  5 32    Sec. 11.  NEW SECTION.  908.2A  APPOINTMENT OF AN ATTORNEY.
  5 33    1.  An attorney may be appointed to represent an alleged
  5 34 parole violator in a parole revocation proceeding only if all
  5 35 of the following criteria apply:
  6  1    a.  The alleged parole violator requests appointment of an
  6  2 attorney.
  6  3    b.  The alleged parole violator is determined to be
  6  4 indigent as defined in section 815.9.
  6  5    c.  The appointing authority determines each of the
  6  6 following:
  6  7    (1)  The alleged parole violator lacks skill or education
  6  8 and would have difficulty presenting the alleged parole
  6  9 violator's case, particularly if the proceeding would require
  6 10 the cross=examination of witnesses or would require the
  6 11 submission or examination of complex documentary evidence.
  6 12    (2)  The alleged parole violator has a colorable claim the
  6 13 alleged violation did not occur, or there are substantial
  6 14 reasons that justify or mitigate the violation and make any
  6 15 revocation inappropriate under the circumstances.
  6 16    2.  If all of the criteria apply in subsection 1, a
  6 17 contract attorney with the state public defender may be
  6 18 appointed to represent the alleged parole violator.  If a
  6 19 contract attorney is unavailable, an attorney who has agreed
  6 20 to provide these services may be appointed.  The appointed
  6 21 attorney shall apply to the state public defender for payment
  6 22 in the manner prescribed by the state public defender.
  6 23    Sec. 12.  Section 908.4, subsection 2, Code 2005, is
  6 24 amended to read as follows:
  6 25    2.  The administrative parole judge shall make a verbatim
  6 26 record of the proceedings.  The alleged violator shall not
  6 27 have the right to appointed counsel, shall be informed of the
  6 28 evidence against the violator, shall be given an opportunity
  6 29 to be heard, shall have the right to present witnesses and
  6 30 other evidence, and shall have the right to cross=examine
  6 31 adverse witnesses, except if the judge finds that a witness
  6 32 would be subjected to risk or harm if the witness's identity
  6 33 were disclosed.  The revocation hearing may be conducted
  6 34 electronically.
  6 35    Sec. 13.  Section 815.1, Code 2005, is repealed.
  7  1    Sec. 14.  EFFECTIVE DATE AND RETROACTIVE APPLICABILITY.
  7  2 This Act, being deemed of immediate importance, takes effect
  7  3 upon enactment.  The sections of this Act amending chapter
  7  4 600A and section 602.1302, and the portions of this Act
  7  5 amending sections 815.10 and 815.11 relating to chapter 600A
  7  6 apply retroactively to May 12, 2004, and the remaining
  7  7 sections of this Act, including the portions of this Act
  7  8 amending sections 815.10 and 815.11 relating to chapter 908,
  7  9 apply retroactively to November 10, 2004.
  7 10
  7 11
  7 12                                                             
  7 13                               CHRISTOPHER C. RANTS
  7 14                               Speaker of the House
  7 15
  7 16
  7 17                                                             
  7 18                               JOHN P. KIBBIE
  7 19                               President of the Senate
  7 20
  7 21    I hereby certify that this bill originated in the House and
  7 22 is known as House File 683, Eighty=first General Assembly.
  7 23
  7 24
  7 25                                                             
  7 26                               MARGARET THOMSON
  7 27                               Chief Clerk of the House
  7 28 Approved                , 2005
  7 29
  7 30
  7 31                            
  7 32 THOMAS J. VILSACK
  7 33 Governor