I 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”.
HF 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 current Code):
“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.”
The 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.
The 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.
What really bothers me is that this bill was assigned to a subcommittee in the House Judiciary Committee 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 “undecided”).
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 Legislation 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?
In Kolender, 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. See Lanzetta v. New Jersey, 306 U. S. 451 (1939).” Kolender at 361 (Emphasis mine).
I 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
Makesloud and raucous noise in the vicinity of any residence or public building and while doing so whichcauses unreasonable distress to the occupants thereof.”
Isn’t that better?
If 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