SSB 1126 (LSB 1172XD (8) 85)

SENATE/HOUSE FILE _____

BY  (PROPOSED DEPARTMENT OF INSPECTIONS AND APPEALS/STATE PUBLIC DEFENDER BILL)

A BILL FOR

An Act relating to payments from the indigent defense fund by the state public defender.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 13B.4, subsection 4, paragraph d, Code 2013, is amended by striking the paragraph.
    Sec. 2.  Section 13B.4, subsection 8, Code 2013, is amended to read as follows:
   8.  The state public defender shall adopt rules, as necessary, pursuant to chapter 17A to
 
interpret and administer this chapter, and chapter 815, and sections 229A.6, 232.11, 232.89, 232.113, 232.126, 232.141, 232.179, 600A.6A, 600A.6B, 814.11, and 908.2A.

The state public defender shall have the discretion to interpret such rules.
    Sec. 3.  NEW SECTION.  13B.4A  Judicial review of agency action.
   1.  Notwithstanding chapter 17A, a claimant for payment of indigent defense costs may seek judicial review of the state public defender’s final agency action denying or reducing any claim by filing a motion for judicial review in the court with jurisdiction over the original appointment. This section is the sole and exclusive method of seeking judicial review of the state public defender’s action on any claim for payment.
   a.  A claimant may only file the motion after the state public defender has taken final agency action, as defined by the state public defender, on the claim, and the claimant must file the motion within twenty days of the final agency action.
   b.  Failure to seek judicial review within twenty days of final agency action as defined by the state public defender shall preclude any judicial review of the action taken by the state public defender.
   c.  The motion must clearly and concisely set forth the grounds for error and any other grounds the claimant intends to rely upon when challenging the action of the state public defender.
   2.
  a.  The court shall set the motion for hearing and provide the state public defender with at least ten days’ notice of the hearing. The state public defender shall not be required to file a resistance to the motion for judicial review.
   b.  The claimant or state public defender may participate in the hearing by telephone. If the state public defender participates by telephone, the state public defender shall be responsible for initiating the telephone call and paying all telephone charges incurred for the hearing.
   3.  The claimant shall have the burden to show by a preponderance of the evidence any of the following, otherwise the action of the state public defender shall be affirmed:
   a.  The action of the state public defender violates the Constitution of the United States or the Constitution of the State of Iowa, a statute, or an administrative rule adopted by the state public defender.
   b.  The action of the state public defender is arbitrary, capricious, or an abuse of discretion.
   4.  In a hearing on a motion for judicial review of an action of the state public defender the following shall apply:
   a.  The state public defender’s interpretation of the rules adopted by the state public defender or a statute, which the state public defender is vested with discretion to interpret pursuant to section 13B.4, subsection 8, is binding on the court unless the interpretation is irrational, illogical, or a wholly unjustifiable interpretation of the law.
   b.  Factual findings of the state public defender must be accepted by the court unless not supported by substantial evidence.
   c.  If the state public defender provides an administrative procedure for review of an action on a claim, the court shall not consider any grounds for error or any other grounds unless raised with the state public defender prior to the final agency action, and the court shall not admit new evidence that was not presented to the state public defender prior to the final agency action.
   5.  If the state public defender is not first notified and given an opportunity to be heard, any court order entered after the state public defender has taken action on the claim, which affects the claim, is void.
   6.  The decision of the court following a hearing on a motion for judicial review is a final judgment appealable by either the claimant or state public defender.
    Sec. 4.  NEW SECTION.  13B.4B  Confidentiality of indigent defense claim records.
   1.  A claim for compensation and reimbursement for legal assistance and supporting documents submitted to the state public defender for payment of costs incurred in the legal representation of an indigent person from the indigent defense fund established in section 815.11 shall be kept confidential by the state public defender except as otherwise provided in subsection 2.
   2.
  a.  The claim and supporting documents may be released to the client on whose behalf the costs were incurred.
   b.  Summary claims data may be released if the data contains no information that is required to be kept confidential pursuant to an attorney’s obligations under the Iowa rules of professional conduct. Such summary data may include:
   (1)  The name of the attorney or vendor who provided the legal services.
   (2)  The name of the county in which legal services were provided.
   (3)  The case number and name of the client unless the information is a confidential juvenile record under section 232.147.
   (4)  The type of claim and the type of cases for which legal services were provided.
   (5)  The number of hours and expenses claimed, and the total amount paid.
   c.  The state public defender may in the state public defender’s sole discretion release claims and supporting documents to the auditor of state, the Iowa supreme court attorney disciplinary board, the grievance commission of the supreme court of Iowa, or to other state or local agencies to the extent necessary to investigate fraud or other criminal activity against the attorney or vendor submitting the claim.
   d.  The state public defender may release the claim and supporting documents to the court with respect to a hearing held under section 13B.4A.
    Sec. 5.  Section 13B.8, subsection 2, Code 2013, is amended to read as follows:
   2.  The state public defender may appoint and may, for cause, remove the local public defender, assistant local public defenders, clerks, investigators, secretaries, or other employees.

After completion of an employee’s probationary period, the state public defender shall only remove the employee for cause. An employee of the state public defender exempt from the merit system provisions of chapter 8A, subchapter IV, shall serve a one-year probationary period from the beginning date of employment. Each local public defender, and any assistant local public defender, must be an attorney admitted to the practice of law before the Iowa supreme court.
    Sec. 6.  NEW SECTION.  13B.12  Gideon fellowship program established.
   The state public defender may establish a gideon fellowship program for the entry level hiring and training of public defender attorneys. The state public defender may appoint up to four gideon fellows for a term of up to two years and may assign each fellow to a local public defender office or appellate defender office. Each fellow shall be a licensed attorney admitted to practice law in this state prior to commencement of the fellowship. An attorney hired as a fellow shall be excluded from the provisions of chapter 20.
    Sec. 7.  Section 22.7, Code 2013, is amended by adding the following new subsection:
   NEW SUBSECTION.  10.  A claim for compensation and reimbursement for legal assistance and supporting documents submitted to the state public defender for payment from the indigent defense fund established in section 815.11, as provided in section 13B.4B.
    Sec. 8.  Section 600A.6, subsection 2, Code 2013, is amended to read as follows:
   2.
  a.  Prior to the service of notice on the necessary parties, the juvenile court shall appoint a guardian ad litem for a minor child if the child does not have a guardian or if the interests of the guardian conflict with the interests of the child. Such guardian ad litem shall be a necessary party under subsection 1 of this section.
   b.  A person who is appointed as a guardian ad litem for a minor child shall not also be the attorney for any party other than the minor child in any proceeding involving the minor child. The guardian ad litem may make an independent investigation of the interest of the child and may cause witnesses to appear before the court to provide testimony relevant to the best interest of the minor child.
   c.  The costs of the guardian ad litem shall be paid by the person filing the petition under section 600A.5, subsection 1. The costs are not payable from the indigent defense fund established in section 815.11.
    Sec. 9.  Section 600A.6B, Code 2013, is amended to read as follows:
   600A.6B  Payment of attorney fees.
   1.  A person filing a petition for termination of parental rights under this chapter or the person on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees for counsel appointed pursuant to section 600A.6A unless the person filing the petition is a private child-placing agency as defined in section 238.1

licensed under chapter 238, or unless the court determines that the person filing the petition or the person on whose behalf the petition is filed is indigent.
   2.  If the person filing the petition is a private child-placing agency as defined in section 238.1
 
licensed under chapter 238 or if the person filing the petition or the person on whose behalf the petition is filed is indigent, the appointed attorney shall be paid reasonable attorney fees as determined by the state public defender
 
prospective parent on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees for counsel appointed pursuant to section 600A.6A unless the court determines that the prospective parent on whose behalf the petition is filed is indigent.
   3.  The
 
If the prospective parent on whose behalf the petition is filed is indigent, and if the person filing the petition is indigent or a private child-placing agency licensed under chapter 238, the appointed attorney shall be paid reasonable attorney fees as determined by the state public defender from the indigent defense fund established in section 815.11.
   4.  The state public defender shall review all the claims submitted
 
for payment under this section
 
subsection 3 and shall have the same authority with regard to the payment of these claims as the state public defender has with regard to claims submitted under chapters 13B and 815, including the authority to adopt rules concerning the review and payment of claims submitted.
    Sec. 10.  Section 814.11, subsections 2, 3, and 4, Code 2013, are amended to read as follows:
   2.
  a.  If the appeal involves an indictable offense or denial of postconviction relief, the appointment shall be made to the state appellate defender unless the state appellate defender notifies the court that the state appellate defender is unable to handle the case.
   b.  If the state appellate defender is unable to handle the case, the state public defender may transfer the case to a local public defender office, nonprofit organization, or private attorney designated by the state public defender to handle such a case. The state appellate defender shall notify the supreme court of the transfer of a case, and upon such notification the responsibility of the state appellate defender in the case terminates.
   c.  If, after transfer of the case to a local public defender office, nonprofit organization, or private attorney, the local public defender office, nonprofit organization, or private attorney withdraws from the case, the court shall appoint an attorney who has a contract with the state public defender to provide legal services in appellate cases.
   3.
  a.  In a juvenile case under chapter 232 or a proceeding under chapter 600A, the trial attorney shall continue representation throughout the appeal without an additional appointment order unless the court grants the attorney permission to withdraw from the case.
   b.  If the court grants the attorney permission to withdraw, the court shall appoint
 
the state public defender’s designee pursuant to section 13B.4.
   c.  If the state public defender has not made a designation pursuant to section 13B.4 to handle the type of case or the state public defender’s designee is unable to handle the case, the court shall appoint an attorney who has a contract with the state public defender to provide legal services in appellate cases.
   4.
  a.  In all other cases not specified in subsection 2 or 3, or except as otherwise provided in this section, the court shall appoint
 
the state public defender’s designee pursuant to section 13B.4.
   b.  If the state public defender has not made a designation pursuant to section 13B.4 to handle these other types of cases or the state public defender’s designee is unable to handle the case, the court shall appoint an attorney to represent an indigent person who has a contract with the state public defender to provide legal services in appellate cases.
    Sec. 11.  NEW SECTION.  815.1  Costs incurred by a privately retained attorney representing an indigent person.
   1.  The court shall not authorize the payment of state funds for the costs incurred in the legal representation of a person represented by a privately retained attorney unless the requirements of this section are satisfied.
   2.  An application for the payment of state funds for the costs incurred in the legal representation of an indigent person that is submitted by the privately retained attorney shall be filed with the court in the county in which the case was filed and include the following:
   a.  A copy of the attorney’s fee agreement for the representation.
   b.  An itemized accounting of all compensation paid to the attorney including the amount of any retainer.
   c.  The amount of compensation earned by the attorney.
   d.  Information on any expected additional costs to be paid or owed by the represented person to the attorney for the representation.
   e.  A signed financial affidavit completed by the represented person.
   3.  The attorney shall submit a copy of the application and all attached documents to the state public defender.
   4.  The court shall not grant the application and authorize all or a portion of the payment to be made from state funds unless the court determines, after reviewing the application and supporting documents, that all of the following apply:
   a.  The represented person is indigent and unable to pay for the costs sought to be paid by the attorney.
   b.  The costs are reasonable and necessary for the representation of the person in a case for which counsel could have been appointed under section 815.10.
   c.  The moneys paid or to be paid to the attorney by or on behalf of the represented person are insufficient to pay all or a portion of the costs sought to be paid from state funds.
   (1)  In determining whether the moneys paid or to be paid to the attorney are insufficient for purposes of this paragraph “c”, the court shall add the hours previously worked to the hours expected to be worked to finish the case and multiply that sum by the hourly rate of compensation specified under section 815.7.
   (2)  If the product calculated in subparagraph (1) is greater than the moneys paid or to be paid to the attorney by or on behalf of the represented person, the moneys shall be considered insufficient to pay all or a portion of the costs sought to be paid from state funds.
   (3)  If the private attorney is retained on a flat fee agreement, and a precise record of hours worked is not available, the privately retained attorney shall provide the court a reasonable estimate of the time expended to allow the court to make the calculation pursuant to this paragraph “c”.
   5.  This section applies to payments to witnesses under section 815.4, evaluators, investigators, and certified shorthand reporters, and for other costs incurred in the legal representation.
   6.  This section shall not be construed to restrict payment of costs on behalf of an indigent person represented on a pro bono basis.
EXPLANATION
   This bill relates to payments from the indigent defense fund by the state public defender.
   Under the bill, an indigent defense claimant may seek judicial review of the final agency action of the state public defender denying or reducing an indigent defense claim by filing a motion for judicial review in the court with jurisdiction over the original court appointment.
   The bill requires the motion to be filed within 20 days after the final agency action. The bill also requires the motion to clearly and concisely set forth the grounds for error the claimant intends to rely upon when challenging the final agency action of the state public defender.
   The bill requires the motion to be set for a hearing and that the state public defender be provided at least 10 days’ notice of the hearing. The bill does not require the state public defender to file a resistance to the motion. The claimant or state public defender may appear at the hearing by telephone, however, if the state public defender appears by telephone, the state public defender shall be responsible for initiating and paying all telephone charges incurred during the hearing.
   The bill specifies that if the state public defender is not first notified and given an opportunity to be heard on a motion to review a claim for payment, any court order entered after the state public defender has taken action on the claim, which affects the claim, is void.
   The bill requires the claimant to prove by a preponderance of the evidence that the final agency action of the state public defender violated the constitutions of the United States or the State of Iowa, a statute, or an administrative rule, or that the final agency action was arbitrary, capricious, or an abuse of discretion.
   Under the bill, if the state public defender provides an administrative procedure for review of an action on a claim, the court, during judicial review, shall not consider any grounds for error unless raised with the state public defender prior to the final agency action, and the court is prohibited from admitting new evidence that was not previously presented to the state public defender.
   The bill specifies the state public defender may adopt rules to interpret and administer Code sections 229A.6 (sexually violent predators), 232.11 (juvenile delinquency), 232.89 (child in need of assistance), 232.113 (termination of parental rights in juvenile court), 232.126 (appointment of guardian ad litem for family in need of assistance), 232.141 (juvenile court expenses and costs), 232.179 (appointment of counsel and guardian ad litem for voluntary foster care placement), 600A.6A (termination of parental rights), 600A.6B (payment of attorney fees for termination of parental rights), 814.11 (indigent’s right to counsel), and 908.2A (appointment of an attorney for violations of probation or parole).
   The bill specifies that indigent defense claims and supporting documents are confidential documents under Code section 22.7 but allows the state public defender to release the confidential information under certain circumstances. The state public defender may release the claim and supporting documents to the indigent person who was the client in the case. The bill specifies that summary claims data may be released including the name of the attorney or vendor providing services, the county in which legal services were provided, the case number and name of the client unless the information is a confidential juvenile record, the type of claim and case, the number of hours and costs claimed, and the amount paid to the claimant. 
   The bill also allows the state public defender to provide indigent defense claims and supporting documents to the auditor of state, the Iowa supreme court attorney disciplinary board, or grievance commission, or to other state or local agencies for the purpose of investigating fraud or criminal activity.
   After completion of an employee’s probationary period, the bill specifies that the state public defender may only remove the employee for cause. The bill specifies that an employee of the state public defender not covered by the merit system under Code chapter 8A shall serve a one-year probationary period from the beginning date of employment.
   The bill establishes the gideon fellowship program for the entry level hiring and training of attorneys within the office of the state public defender. Under the bill, the state public defender may hire up to four gideon fellows to serve under the program as a public or appellate defender for up to two years. The bill requires the fellows to be licensed attorneys in this state and excludes the fellows from Code chapter 20 relating to public collective bargaining.
   The bill specifies that costs incurred by a guardian ad litem in a proceeding under Code chapter 600A (termination of parental rights) shall be paid by the person filing the petition under Code section 600A.5(1).
   The bill provides that a child-placing agency licensed under Code chapter 238 may file a petition to terminate parental rights under Code chapter 600A. Current law specifies a child-placing agency as defined in Code section 238.1 may file such a petition.
   The bill specifies that if a person filing a petition to terminate parental rights under Code chapter 600A is a child-placing agency licensed under Code chapter 238 or if the person filing the petition is indigent, the prospective parent on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees in the case, unless the court determines the prospective parent on whose behalf the petition is filed is indigent.
   If a prospective parent on whose behalf a petition is filed is indigent, and if the person filing the petition is indigent or a child-placing agency licensed under Code chapter 238 files the petition, the bill requires the appointed attorney in the case to be paid reasonable attorney fees from the indigent defense fund established in Code section 815.11.
   In an appeal involving an indictable offense or denial of postconviction relief, the bill specifies that if the state appellate defender is unable to handle the case, the state public defender may transfer the case to a local public defender office, nonprofit organization, or private attorney designated by the state public defender to handle such a case. If after the transfer of the appeal, the attorney or organization withdraws from the case, the court shall appoint an attorney who has a contract with the state public defender to provide such services in appellate cases.
   In an appeal in a juvenile or termination of parental rights case under Code chapter 600A, the bill specifies that if the court grants permission for an attorney to withdraw from the appeal, the court shall appoint the state public defender’s designee pursuant to Code section 13B.4. If the state public defender has not made a designation pursuant to Code section 13B.4 to handle the type of case or the designee is unable to handle the case, the bill requires the court to appoint an attorney who has a contract with the state public defender to provide legal services in appellate cases.
   In all other cases not involving an indictable offense, juvenile case, or termination of parental rights under Code chapter 600A, the bill specifies that the court shall appoint the state public defender’s designee on an appeal. If the state public defender has not made a designation pursuant to Code section 13B.4 to handle these types of cases or the designee is unable to handle the case, the bill requires the court to appoint an attorney who has a contract with the state public defender to provide legal services in appellate cases.
   The bill establishes a process for payment of state funds to a privately retained attorney for the costs incurred in the legal representation of a person who is later determined to be indigent.
   Under the bill, the privately retained attorney shall file an application for the payment of state funds with the court. The bill requires the application to include a copy of the attorney’s fee agreement, an itemized accounting of all compensation paid to the attorney including the amount of any retainer, information on any expected additional expense paid or owed to the attorney in the case, and a signed financial affidavit completed by the represented person.
   The bill requires a copy of the application to be submitted to the state public defender.
   The bill prohibits the payment of state funds to a privately retained attorney unless the court determines that the represented person is indigent and unable to pay for the expenses sought to be paid by the attorney, the expense of the attorney is reasonable and necessary for the representation of an indigent person for which counsel could have been appointed, and the moneys paid or to be paid by or on behalf of the represented person to the private attorney are insufficient to pay all or a portion of the expenses sought to be paid from state funds. In determining whether the moneys paid or to be paid to the attorney are insufficient, the bill requires the court to add the hours previously worked to the hours expected to be worked to finish the case and to multiply that sum by the hourly rate of compensation specified under Code section 815.7. If this calculation is greater than the moneys paid or to be paid by or on behalf of the represented person to the attorney, the bill specifies the moneys shall be considered insufficient to pay all or a portion of the expenses sought to be paid from state funds, and the court may authorize the payment of state funds to the extent the moneys paid or to be paid to the attorney are insufficient to pay the expenses as calculated by the court. If the private attorney is retained on a flat fee agreement, and a precise record of hours worked is not available, the bill requires the privately retained attorney to provide the court a reasonable estimate of the time expended to allow the court to determine whether state funds must be paid to the privately retained attorney.
   This process of the payment of state funds established in the bill also applies to payments to witnesses, evaluators, investigators, and certified shorthand reporters, and for other costs incurred in the legal representation. However, nothing in the bill should be construed to restrict payment of expenses from state funds on behalf on an indigent person represented by an attorney on a pro bono basis.