{"id":1791,"date":"2020-03-11T15:45:35","date_gmt":"2020-03-11T20:45:35","guid":{"rendered":"https:\/\/iowappa.com\/?p=1791"},"modified":"2020-03-11T15:45:35","modified_gmt":"2020-03-11T20:45:35","slug":"flaws-in-the-laws-part-iv-disturbing-the-peace","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=1791","title":{"rendered":"Flaws in the Laws: Part IV – Disturbing the Peace"},"content":{"rendered":"\n

I\nmay have retired from lobbying the Iowa Legislature<\/a> \u2013 or, excuse me,\nlobbying legislators at the Iowa Legislature, but every once in a while, I peek\nat a bill that has a subject matter appealing to my interest.  House File 2444<\/a> is one of those\nbills.  You may recognize this statute\nbetter if I call it \u201cdisturbing the peace\u201d.<\/p>\n\n\n\n

HF\n2444 is a very short bill.  It takes up\nfive lines, and two of those lines are basically instructional lines that tell\nthe Code Editor where to make the changes in the Iowa Code<\/a>.  It\u2019s those remaining three lines that caught\nmy attention.  See if you can spot the\nproblem with this sentence (the underlined words are proposed to be added to\ncurrent Code):<\/p>\n\n\n\n

\u201c2.\u00a0 Makes loud and raucous noise in the vicinity of any residence or public building which intentionally or recklessly<\/span> causes unreasonable distress to the occupants thereof.\u201d<\/p><\/blockquote>\n\n\n\n

The\nstatute, addressing Disorderly Conduct, begins as such:<\/p>\n\n\n\n

723.4\u00a0Disorderly conduct.<\/strong><\/p>

\u00a0\u00a0A person commits a simple misdemeanor when the person does any of the following:<\/p>

\u00a0\u00a01.\u00a0\u00a0Engages 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.<\/p>

\u00a0\u00a02.\u00a0\u00a0Makes loud and raucous noise in the vicinity of any residence or public building which causes unreasonable distress to the occupants thereof.<\/p><\/blockquote>\n\n\n\n

The\nlanguage in the bill above, as well as the current law, is grammatically\nincorrect in that the object of the \u201cunreasonable distress\u201d is the \u201cresidence\nor public building\u201d.  Incorporating the\nintent language after the residence or public building means that the residence\nor public building \u201cintentionally or recklessly\u201d caused the subsequent action.  There is no way around trying to say that\nthis law, as written, means that \u201cthe person\u201d is intentionally or recklessly causing\nunreasonable distress to the occupants thereof. \n<\/p>\n\n\n\n

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.\u00a0 Diagramming sentences was part of an elementary education when I attended Saint Ann\u2019s Grade School in Vail, Iowa.\u00a0 Several people have told me that diagramming is no longer in use.\u00a0 I can see that in knowing that this grammatical slip has slid by numerous people who should know better.<\/p>\n\n\n\n

What\nreally bothers me is that this bill was assigned to a subcommittee in the House Judiciary\nCommittee<\/a>\nwith two of the three subcommittee persons being attorneys.  Attorneys use proper grammar every day.  When ordinary citizens claim someone got off\nbecause of a technicality the technically is often poorly worded laws.  Without noticing the discrepancy in the\ncurrent law, or in the proposed law, HF 2444 passed the subcommittee\nunanimously, passed out of the House Judiciary Committee without opposition,\nand passed the Iowa House of Representatives by a vote of 98-0, all without\nanyone noticing that this law should not be enforceable since it is, on its\nface, unconstitutional because of a doctrine called \u201cvoid for vagueness\u201d.  <\/p>\n\n\n\n

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness<\/strong> that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,<\/em> 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)<\/a>; accord <\/em>State v. Watkins,<\/em> 659 N.W.2d 526, 535 (Iowa 2003)<\/a>. <\/p><\/blockquote>\n\n\n\n

State v. Millsap<\/a>, 704 N.W.2d 426,\n436 (Iowa 2005)(Emphasis mine).<\/p>\n\n\n\n

Back to the legislation:\u00a0 I watched the video<\/a> of the discussion in the House before it passed.\u00a0 The floor manager of the bill, Representative Dustin Hite<\/a> (R-Oskaloosa), stood and said, \u201cThis bill adds mens rea<\/em>\u201d.\u00a0 That\u2019s all he said.\u00a0 For those of you not familiar with the Latin term, mens rea<\/em> \u201crefers to the state of mind statutorily required in order to convict a particular defendant of a particular crime\u201d.<\/p>\n\n\n

[mens rea translated means \u2018guilty mind\u2019]<\/p>\n\n\n\n

Yes, the current statute lacks a criminal intent.\u00a0 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. <\/p>\n\n\n\n

I have no idea who came to the Legislature with this\nbill.  Since it began as a House Study\nBill in the House Judiciary Committee, I can only assume that it was initiated\nby the Iowa County Attorneys Association<\/a>.  Without a procedure to determine who wants a\nparticular piece of legislation, I am free to speculate.  The Iowa County Attorneys Association was one\nof two entities that declared as being in \u201csupport\u201d of the legislation when it\nwas introduced.  The other organization\ndeclared \u201cFor\u201d the bill was Americans For\nProsperity<\/a> (the Kock Brothers). \nI suppose it could have been a bill requested by the Americans For\nProsperity, since they were the only group that supported the bill once it\nchanged from a study bill to a House File. \nOnce it became a House File, the county attorneys were no longer\nregistered on the bill.  However, the Iowa\nBar Association<\/a> became a partner with the AFP in\nsupporting the legislation (On the study bill, the IBA was declared as\n\u201cundecided\u201d). <\/p>\n\n\n\n

When I lobbied, it was familiar territory to know that\nsome bills\u2019 ownership can be identified by the lobbyists who register in\n\u201csupport\u201d of a bill.  Couple that with\nthe guess that the legislation is now necessary because a county attorney,\nsomewhere in Iowa, lost a case in which a judge threw out the conviction\nbecause \u201cthe law has no criminal intent\u201d. \nSo, to fix that flaw in the law, someone had to have approached one or\nmore legislators to request legislation that will add the element of intent.  Put it anywhere.  The courts should know what you mean.  However, that\u2019s a problem all by itself.<\/p>\n\n\n\n

The Fiscal Note<\/a>, under\nthe subheading of \u201cCorrectional Impact\u201d, states that in Fiscal Year 2019,\n\u201cthere were approximately 1415 disorderly conduct convictions\u201d.  Granted, disorderly conduct includes more\nthan making \u201cloud and raucous noise\u201d, but some of those convictions had to have\nbeen simple misdemeanors for \u201ccausing distress\u201d to residents of homes and\npublic buildings.  First of all, how did\njudges and magistrates convict someone without the required intent\nlanguage?  Second, how could it not come\nto the attention of some of Iowa\u2019s finest judges that this legal language is\nnot compatible with grammatical sentence structuring.  It boggles my mind. <\/p>\n\n\n\n

Who actually wrote the legislation?  Was it the County Attorneys Association?  Was it the legal drafter for the non-partisan\nLegislation\nServices Agency \u2013 Legal Division<\/a>?  Does it make any difference?  How many adults looked at this legislation\nand didn\u2019t recognize a glaring syntax problem that educated elementary children\neasily spotted decades ago?<\/p>\n\n\n\n

In\nKolender,\nChief Of Police Of San Diego, et. al. v. Lawson, 461 U.S. 352 (1983<\/a>)(Holding that the statute as it has been construed is\nunconstitutionally vague within the meaning of the Due Process Clause of the\nFourteenth Amendment by failing to clarify what is contemplated by the\nrequirement that a suspect provide a “credible and reliable” identification.),\nJustice O\u2019Connor wrote that police \u201cstress the need for\nstrengthened law enforcement tools to combat the epidemic of crime that plagues\nour Nation. The concern of our citizens with curbing criminal activity is\ncertainly a matter requiring the attention of all branches of government. As\nweighty as this concern is, however, it cannot justify legislation that would\notherwise fail to meet constitutional standards for definiteness and clarity<\/strong>.\nSee Lanzetta<\/em>\nv. New Jersey,<\/em> 306 U. S. 451 (1939)<\/a>.\u201d  Kolender at 361 (Emphasis mine).<\/p>\n\n\n\n

I\nhave notified the three subcommittee members of the Iowa Senate\nJudiciary Committee<\/a>.  Unfortunately, I notified them after the\nsubcommittee meeting.  This bill can be\nfixed \u2013 easily.  Go back to the bill\u2019s\ntwo-sentence attempt at incorporating intent. \nTry this language:<\/p>\n\n\n\n

\u201c2.\u00a0 Intentionally or recklessly<\/span> makes Makes<\/s> loud and raucous noise in the vicinity of any residence or public building and while doing so<\/span> which<\/s> causes unreasonable distress to the occupants thereof.\u201d<\/p><\/blockquote>\n\n\n\n

Isn\u2019t\nthat better?<\/p>\n\n\n\n

If\nfor some reason this bill passes out of the Senate without repair, I hope you\nwill assist me in contacting the governor that she needs to sharpen her veto\npencil.  The last thing we need is\nunworkable laws that even a fifth-grader can laugh at.<\/p>\n\n\n\n

Related\nblogs:<\/p>\n\n\n\n

Flaws in the Laws: Part I \u2013 Employment Drug\nTesting<\/a>  February 20, 2019<\/p>\n\n\n\n

Flaws in the Laws: Part II \u2013 Mourning Dove\nHunting<\/a>  March 13, 2019<\/p>\n\n\n\n

Flaws in the Laws: Part III \u2013 2nd<\/sup>\nDegree Kidnapping <\/a> April 17,2019<\/p>\n","protected":false},"excerpt":{"rendered":"

I may have retired from lobbying the Iowa Legislature \u2013 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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[719,714,718,265,81,717,715,716],"class_list":["post-1791","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-americans-for-prosperity","tag-house-file-2444","tag-iowa-bar-association","tag-iowa-code","tag-iowa-county-attorneys-association","tag-rep-dustin-hite","tag-section-723-42","tag-void-for-vagueness"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1791","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1791"}],"version-history":[{"count":3,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1791\/revisions"}],"predecessor-version":[{"id":1794,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1791\/revisions\/1794"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1791"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1791"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1791"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}