General Assembly: 81 (2005 Regular GA) - Chapter 107 - Legal representation for indigent persons


Published: 2005-05-04

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.

291 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 107

to the licensee. Notice shall be given at least ten days in advance of the date set for hearing. If the department finds cause for revocation, the license shall be revoked for a period not to exceed two years. 2. The process for denial, suspension, or revocation of a license shall commence by deliver-

ing to the applicant or licensee by certified mail, return receipt requested, or by personal ser- vice a notice setting forth the particular reasons for such action. a. If awritten request for a hearing is not receivedwithin thirty days after themailing or ser-

vice of the notice, the denial, suspension, or revocation of a license shall become effective pending a final determination by the department. The determination involved in the notice may be affirmed, modified, or set aside by the department in a written decision. b. If a request for a hearing is timely received by the department, the applicant or licensee

shall be given an opportunity for a prompt and fair hearing before the department and the de- nial, suspension, or revocation shall be deemed suspended until the departmentmakes a final determination. However, the director may suspend a license prior to a hearing if the director finds that the public integrity of the licensed activity is compromised or there is a risk to public health, safety, orwelfare. In addition, at any timeduringor prior to thehearing thedepartment may rescind the notice of the denial, suspension, or revocation upon being satisfied that the reasons for the denial, suspension, or revocation have been or will be removed. On the basis of any such hearing, the determination involved in the notice may be affirmed, modified, or set aside by the department in a written decision. 3. A copyof the final decisionof thedepartment shall be sent by certifiedmail, return receipt

requested, or served personally upon the applicant or licensee. The applicant or licenseemay seek judicial review in accordance with the terms of the Iowa administrative procedure Act, chapter 17A. 4. The procedure governing hearings authorized by this section shall be in accordancewith

the rules promulgated by the department and chapter 17A. 5. If the department finds cause for denial of a license, the applicantmay not reapply for the

same license for aperiodof twoyears. If thedepartment finds cause for suspension, the license shall be suspended for a period determined by the department. If the department finds cause for revocation, the license shall be revoked for a period not to exceed two years.

Sec. 11. EFFECTIVE DATE. The section of this Act amending section 99B.7, subsection 1, paragraph “d”, being deemed of immediate importance, takes effect upon enactment.

Approved May 4, 2005

_________________________

CH. 107CH. 107

CHAPTER 107

LEGAL REPRESENTATION FOR INDIGENT PERSONS

H.F. 683

AN ACT authorizing the appointment of an attorney to represent an indigent person during a termination of parental rights proceeding or an indigent parole violator, and providing effective and retroactive applicability date provisions.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. Section 13B.4, subsection 1, Code 2005, is amended to read as follows: 1. The state public defender shall coordinate the provision of legal representation of all indi-

292LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 107

gents under arrest or chargedwith a crime, seeking postconviction relief, againstwhoma con- tempt action is pending, in proceedings under section 811.1A or chapter 229A or 812, in juve- nile proceedings, on appeal in criminal cases, and on appeal in proceedings to obtain postcon- viction relief when ordered to do so by the district court in which the judgment or order was issued, and on a reopening of a sentence proceeding, and may provide for the representation of indigents in proceedings instituted pursuant to section 908.11 chapter 908. The state public defender shall not engage in the private practice of law.

Sec. 2. Section 600A.2, Code 2005, is amended by adding the following new subsection: NEW SUBSECTION. 10A. “Indigent” means a person has an income level at or below one

hundred percent of theUnitedStates poverty level as defined by themost recently revised pov- erty income guidelines published by the United States department of health and human ser- vices, unless the court determines that the person is able to pay for the cost of an attorney in the pending case. In making the determination of a person’s ability to pay for the cost of an attorney, the court shall consider the person’s incomeand the availability of any assets subject to execution, including but not limited to cash, stocks, bonds, and any other property which may be applied to the satisfaction of judgments, and the nature and complexity of the case.

Sec. 3. Section 600A.6, subsection 3, Code 2005, is amended by adding the following new paragraph: NEW PARAGRAPH. c. A statement that the person against whom a proceeding for ter-

mination of parental rights is brought shall have the right to counsel pursuant to section 600A.6A.

Sec. 4. NEW SECTION. 600A.6A RIGHT TO AND APPOINTMENT OF COUNSEL. 1. Upon the filing of a petition for termination of parental rights under this chapter, the par-

ent identified in the petition shall have the right to counsel in connection with all subsequent hearings and proceedings. 2. If the parent against whom the petition is filed desires but is financially unable to employ

counsel, the court, following an in-court colloquy, shall appoint counsel for the person if all of the following criteria are met: a. The person requests appointment of counsel. b. The person is indigent. c. The court determines both of the following: (1) The person, because of lack of skill or education, would have difficulty in presenting the

person’s version of the facts in dispute, particularly where the presentation of the facts re- quires the examination or cross-examination of witnesses or the presentation of complex doc- umentary evidence. (2) Thepersonhasa colorabledefense to the terminationofparental rights, or there are sub-

stantial reasons that make termination of parental rights inappropriate.

Sec. 5. NEW SECTION. 600A.6B PAYMENT OF ATTORNEY FEES. 1. A person filing a petition for termination of parental rights under this chapter or the per-

son 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 person filing the petition or the person onwhose behalf the petition is filed is indigent. 2. If the person filing the petition or the person on whose behalf the petition is filed is indi-

gent, the appointed attorney shall be paid reasonable attorney fees as determined by the state public defender. 3. The state public defender shall review all the claims submitted under this section 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 au- thority to adopt rules concerning the review and payment of claims submitted.

293 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 107

Sec. 6. Section 602.1302, subsection 3, Code 2005, is amended to read as follows: 3. A revolving fund is created in the state treasury for the payment of jury and witness fees,

mileage, and costs related to summoning jurors by the judicial branch, and attorney fees paid by the state public defender for counsel appointed pursuant to section 600A.6A. The judicial branch shall deposit any reimbursements to the state for the payment of jury and witness fees andmileage in the revolving fund. In eachcalendarquarter the judicial branch shall reimburse the state public defender for attorney fees paid pursuant to section 600A.6B. Notwithstanding section 8.33, unencumbered and unobligated receipts in the revolving fund at the end of a fis- cal year do not revert to the general fund of the state. The judicial branch shall on or before February 1 file a financial accounting of the moneys in the revolving fund with the legislative services agency. The accounting shall include an estimate of disbursements from the revolv- ing fund for the remainder of the fiscal year and for the next fiscal year.

Sec. 7. Section 602.8102, subsection 133, Code 2005, is amended by striking the subsec- tion.

Sec. 8. Section 815.10, subsection 1, Code 2005, is amended to read as follows: 1. The court, for cause and upon its own motion or upon application by an indigent person

or a public defender, shall appoint the state public defender’s designee pursuant to section 13B.4 to represent an indigent person at any stage of the criminal, postconviction, contempt, commitment under chapter 229A, termination under chapter 600A, detention under section 811.1A, competency under chapter 812, parole revocation if applicable under section 908.2A, or juvenile proceedings or on appeal of any criminal, postconviction, contempt, commitment under chapter 229A, termination under chapter 600A, detention under section 811.1A, compe- tency under chapter 812, parole revocation under chapter 908, or juvenile action in which the indigent person is entitled to legal assistance at public expense. However, in juvenile cases, the court may directly appoint an existing nonprofit corporation established for and engaged in the provision of legal services for juveniles. An appointment shall not be made unless the person is determined to be indigent under section 815.9. Only one attorney shall be appointed in all cases, except that in class “A” felony cases the court may appoint two attorneys.

Sec. 9. Section 815.11, Code 2005, is amended to read as follows: 815.11 APPROPRIATIONS FOR INDIGENT DEFENSE. Costs incurred under chapter 229A, 665, or 822, or 908, or section 232.141, subsection 3,

paragraph “c”, or section 598.23A, 600A.6B, 814.9, 814.10, 814.11, 815.4, 815.7, or 815.10, or 908.11 on behalf of an indigent shall be paid from funds appropriated by the general assembly to the office of the state public defender in the department of inspections and appeals for those purposes. Costs incurred representing an indigent defendant in a contempt action, or repre- senting an indigent juvenile in a juvenile court proceeding under chapter 600, are also payable from these funds. However, costs incurred in any administrative proceeding or in any other proceeding under chapter 598, 600, 600A, 633, or 915 or other provisions of theCode or admin- istrative rules are not payable from these funds.

Sec. 10. Section 908.2, Code 2005, is amended to read as follows: 908.2 INITIAL APPEARANCE — BAIL. 1. An officer making an arrest of an alleged parole violator shall take the arrested person

before a magistrate without unnecessary delay for an initial appearance. At that time the al- leged parole violator shall be furnished with a the initial appearance the magistrate shall do all of the following: a. Provide written notice of the claimed violation and shall be given. b. Provide notice that a parole revocation hearing will take place and that its purpose is to

determinewhether the allegedparole violation occurred andwhether thealleged violator’s pa- role should be revoked. c. Advise the alleged parole violator of the right to request an appointed attorney.

294LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 107

2. The magistrate may order the alleged parole violator confined in the county jail or may order the alleged parole violator released on bail under terms and conditions as themagistrate may require. Admittance to bail is discretionary with the magistrate and is not a matter of right. A person for whom bail is set may make application for amendment of bail to a district judge or district associate judge having jurisdiction to amend the order. The motion shall be promptly set for hearing and a record shall be made of the hearing.

Sec. 11. NEW SECTION. 908.2A APPOINTMENT OF AN ATTORNEY. 1. An attorney may be appointed to represent an alleged parole violator in a parole revoca-

tion proceeding only if all of the following criteria apply: a. The alleged parole violator requests appointment of an attorney. b. The alleged parole violator is determined to be indigent as defined in section 815.9. c. The appointing authority determines each of the following: (1) The alleged parole violator lacks skill or education andwould have difficulty presenting

the alleged parole violator’s case, particularly if the proceeding would require the cross- examination of witnesses or would require the submission or examination of complex docu- mentary evidence. (2) The alleged parole violator has a colorable claim the alleged violation did not occur, or

there are substantial reasons that justify ormitigate the violation andmake any revocation in- appropriate under the circumstances. 2. If all of the criteria apply in subsection 1, a contract attorneywith the state public defend-

er may be appointed to represent the alleged parole violator. If a contract attorney is unavail- able, an attorney who has agreed to provide these services may be appointed. The appointed attorney shall apply to the state public defender for payment in the manner prescribed by the state public defender.

Sec. 12. Section 908.4, subsection 2, Code 2005, is amended to read as follows: 2. The administrative parole judge shall make a verbatim record of the proceedings. The

alleged violator shall not have the right to appointed counsel, shall be informedof the evidence against the violator, shall be given an opportunity to be heard, shall have the right to present witnesses andother evidence, and shall have the right to cross-examine adversewitnesses, ex- cept if the judge finds that awitnesswould be subjected to risk or harm if thewitness’s identity were disclosed. The revocation hearing may be conducted electronically.

Sec. 13. Section 815.1, Code 2005, is repealed.

Sec. 14. EFFECTIVE DATE AND RETROACTIVE APPLICABILITY. This Act, being deemed of immediate importance, takes effect upon enactment. The sections of this Act amending chapter 600A and section 602.1302, and the portions of this Act amending sections 815.10and815.11 relating to chapter 600Aapply retroactively toMay12, 2004, and the remain- ing sections of this Act, including the portions of this Act amending sections 815.10 and 815.11 relating to chapter 908, apply retroactively to November 10, 2004.

Approved May 4, 2005