may have retired from lobbying the Iowa Legislature – or, excuse me,
lobbying legislators at the Iowa Legislature, but every once in a while, I peek
at a bill that has a subject matter appealing to my interest. House File 2444 is one of those
bills. You may recognize this statute
better if I call it “disturbing the peace”.
2444 is a very short bill. It takes up
five lines, and two of those lines are basically instructional lines that tell
the Code Editor where to make the changes in the Iowa Code. It’s those remaining three lines that caught
my attention. See if you can spot the
problem with this sentence (the underlined words are proposed to be added to
“2. Makes loud and raucous noise in the vicinity of any residence or public building which intentionally or recklessly causes unreasonable distress to the occupants thereof.”
statute, addressing Disorderly Conduct, begins as such:
723.4 Disorderly conduct.
A person commits a simple misdemeanor when the person does any of the following:
1. Engages in fighting or violent behavior in any public place or in or near any lawful assembly of persons, provided, that participants in athletic contests may engage in such conduct which is reasonably related to that sport.
2. Makes loud and raucous noise in the vicinity of any residence or public building which causes unreasonable distress to the occupants thereof.
language in the bill above, as well as the current law, is grammatically
incorrect in that the object of the “unreasonable distress” is the “residence
or public building”. Incorporating the
intent language after the residence or public building means that the residence
or public building “intentionally or recklessly” caused the subsequent action. There is no way around trying to say that
this law, as written, means that “the person” is intentionally or recklessly causing
unreasonable distress to the occupants thereof.
Poorly written laws can be avoided if bill drafters, legislators, lobbyists, and staff perform a simple test to make sure the law does what is intended. Diagramming sentences was part of an elementary education when I attended Saint Ann’s Grade School in Vail, Iowa. Several people have told me that diagramming is no longer in use. I can see that in knowing that this grammatical slip has slid by numerous people who should know better.
really bothers me is that this bill was assigned to a subcommittee in the House Judiciary
with two of the three subcommittee persons being attorneys. Attorneys use proper grammar every day. When ordinary citizens claim someone got off
because of a technicality the technically is often poorly worded laws. Without noticing the discrepancy in the
current law, or in the proposed law, HF 2444 passed the subcommittee
unanimously, passed out of the House Judiciary Committee without opposition,
and passed the Iowa House of Representatives by a vote of 98-0, all without
anyone noticing that this law should not be enforceable since it is, on its
face, unconstitutional because of a doctrine called “void for vagueness”.
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); accord State v. Watkins, 659 N.W.2d 526, 535 (Iowa 2003).
State v. Millsap, 704 N.W.2d 426,
436 (Iowa 2005)(Emphasis mine).
Back to the legislation: I watched the video of the discussion in the House before it passed. The floor manager of the bill, Representative Dustin Hite (R-Oskaloosa), stood and said, “This bill adds mens rea”. That’s all he said. For those of you not familiar with the Latin term, mens rea “refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime”.
[mens rea translated means ‘guilty mind’]
Yes, the current statute lacks a criminal intent. However, slapping intent language within the sentence without regard to the syntax that should align the criminal intent with the defendant and not the residence is unprofessional.
I have no idea who came to the Legislature with this
bill. Since it began as a House Study
Bill in the House Judiciary Committee, I can only assume that it was initiated
by the Iowa County Attorneys Association. Without a procedure to determine who wants a
particular piece of legislation, I am free to speculate. The Iowa County Attorneys Association was one
of two entities that declared as being in “support” of the legislation when it
was introduced. The other organization
declared “For” the bill was Americans For
Prosperity (the Kock Brothers).
I suppose it could have been a bill requested by the Americans For
Prosperity, since they were the only group that supported the bill once it
changed from a study bill to a House File.
Once it became a House File, the county attorneys were no longer
registered on the bill. However, the Iowa
Bar Association became a partner with the AFP in
supporting the legislation (On the study bill, the IBA was declared as
When I lobbied, it was familiar territory to know that
some bills’ ownership can be identified by the lobbyists who register in
“support” of a bill. Couple that with
the guess that the legislation is now necessary because a county attorney,
somewhere in Iowa, lost a case in which a judge threw out the conviction
because “the law has no criminal intent”.
So, to fix that flaw in the law, someone had to have approached one or
more legislators to request legislation that will add the element of intent. Put it anywhere. The courts should know what you mean. However, that’s a problem all by itself.
The Fiscal Note, under
the subheading of “Correctional Impact”, states that in Fiscal Year 2019,
“there were approximately 1415 disorderly conduct convictions”. Granted, disorderly conduct includes more
than making “loud and raucous noise”, but some of those convictions had to have
been simple misdemeanors for “causing distress” to residents of homes and
public buildings. First of all, how did
judges and magistrates convict someone without the required intent
language? Second, how could it not come
to the attention of some of Iowa’s finest judges that this legal language is
not compatible with grammatical sentence structuring. It boggles my mind.
Who actually wrote the legislation? Was it the County Attorneys Association? Was it the legal drafter for the non-partisan
Services Agency – Legal Division? Does it make any difference? How many adults looked at this legislation
and didn’t recognize a glaring syntax problem that educated elementary children
easily spotted decades ago?
Chief Of Police Of San Diego, et. al. v. Lawson, 461 U.S. 352 (1983)(Holding that the statute as it has been construed is
unconstitutionally vague within the meaning of the Due Process Clause of the
Fourteenth Amendment by failing to clarify what is contemplated by the
requirement that a suspect provide a “credible and reliable” identification.),
Justice O’Connor wrote that police “stress the need for
strengthened law enforcement tools to combat the epidemic of crime that plagues
our Nation. The concern of our citizens with curbing criminal activity is
certainly a matter requiring the attention of all branches of government. As
weighty as this concern is, however, it cannot justify legislation that would
otherwise fail to meet constitutional standards for definiteness and clarity.
v. New Jersey, 306 U. S. 451 (1939).” Kolender at 361 (Emphasis mine).
have notified the three subcommittee members of the Iowa Senate
Judiciary Committee. Unfortunately, I notified them after the
subcommittee meeting. This bill can be
fixed – easily. Go back to the bill’s
two-sentence attempt at incorporating intent.
Try this language:
“2. Intentionally or recklessly makes
Makes loud and raucous noise in the vicinity of any residence or public building and while doing so which causes unreasonable distress to the occupants thereof.”
for some reason this bill passes out of the Senate without repair, I hope you
will assist me in contacting the governor that she needs to sharpen her veto
pencil. The last thing we need is
unworkable laws that even a fifth-grader can laugh at.
Flaws in the Laws: Part I – Employment Drug
Testing February 20, 2019
Flaws in the Laws: Part II – Mourning Dove
Hunting March 13, 2019
Flaws in the Laws: Part III – 2nd
Degree Kidnapping April 17,2019