Revised Iowa Court Rules of Criminal Procedure face an uncertain future after some state legislators objected to parts of the package, which was three years in the making.

The Iowa Supreme Court withdrew the rules from the Legislative Council on February 17. The order signed by Chief Justice Susan Christensen did not explain why the court took that step.

An email sent to members of the task force that drafted the new rules, which the Judicial Branch provided to Bleeding Heartland, said unnamed state legislators had informed the court “the rules would not be approved as submitted in the current form.” Lawmakers’ concerns centered around changes that would benefit defendants facing criminal charges.

REVIEW INVOLVED MANY STAKEHOLDERS, PUBLIC INPUT

While delivering her Condition of the Judiciary address to legislators last month, Christensen explained why the Iowa Supreme Court undertook “a comprehensive revision of the rules governing all criminal cases in Iowa.”

Since the current rules came into effect nearly 44 years ago, they have undergone piecemeal amendments but no comprehensive review. In the words of Justice Mansfield who chaired the task force reviewing our criminal rules, this piecemeal approach resulted in our rules becoming somewhat “wordy, out of date and hodge-podgy.”

Christensen noted that the task force included “prosecutors, judges, and defense lawyers from around the state as well as representation from Drake and Iowa law schools.” (The full list of members can be found at the end of this post.)

The chief justice told legislators, “The proposed rules are streamlined and fill in some gaps where the old rules didn’t reflect what is actually being done in court. A few substantive changes are recommended by the committee, but only where there was consensus between prosecution and defense that the change would be an improvement.”

A February 1 news release from the Judicial Branch (also enclosed below) noted that the Supreme Court approved the new package following “three years of extensive study, review, and public comments.” The task force “met ten times to discuss rule revisions and review subcommittee reports on topics such as discovery, grand juries, immunity, pleas and plea bargaining, social media, sentencing, and trial on the minutes.”

In February 2020, “the proposed rules were put out for more than 100 days for public comment,” and the Supreme Court later reviewed more than 200 pages of comments submitted by individuals or organizations.

Some of the rule changes stemmed from practices and procedures adopted during the COVID-19 pandemic, such as allowing “defense counsel to waive certain proceedings” and allowing defendants to appear remotely for some types of hearings.

Other changes perceived to benefit defendants or Iowans convicted of felonies appear to have doomed the revised rules’ prospects.

COURT TO “REWORK THE PROBLEM AREAS” FOLLOWING LEGISLATORS’ OBJECTIONS

The Legislative Council includes twelve Iowa House members and twelve from the Iowa Senate. The majority party controls the body; seven of the state representatives and seven of the senators are Republicans.

One of the council’s duties is to “Review and delay, if deemed necessary, the effective date of rules and forms submitted by the Supreme Court pursuant to Iowa Code §602.4202.” I’m not aware of any recent precedent for the body to reject rule changes sought by the judiciary.

The council has not voted on the criminal procedure package. However, a February 17 email to task force members explained that after the rules were submitted on January 31, “some members of the general assembly have let us know that they have concerns about specific rules and the guilty plea form and that the rules would not be approved as submitted in the current form.”

The most significant concern relates to the rule change specifically allowing defense attorney investigative subpoenas, which requires notice to the prosecutor, an opportunity to object, and court approval before any subpoena can issue. Other concerns relate to the rule change allowing persons convicted of felonies who have had more than ten years pass since their release from confinement be eligible to sit on juries and the rule change allowing conditional guilty pleas.

The full court discussed the matter earlier this week and has decided that it would be best to withdraw the revised criminal rules and rework the problem areas rather than “hang the rules out to dry.” Accordingly, the court will be filing an order withdrawing the submitted rules from Legislative Council later today. Once that occurs, with your help, the court plans to work on coming up with new rule language in the areas—and I believe they are not many—where the proposed rules take criminal procedure in a new direction that is not acceptable to the legislature. The court is also drafting a memo specifically responding to several areas of concern. David [Denison, Iowa Supreme Court staff attorney] and I will share a draft of the memo with you all for feedback before the memo is circulated.

Communications staff for the Iowa House and Senate Republican and Democratic caucuses have not responded to Bleeding Heartland’s inquiries about which legislators objected to the criminal procedure rule changes. I will update this post as needed.

“DISAPPOINTING AND DISRESPECTFUL TO THE JUDICIAL BRANCH”

Andrew Mertens, deputy executive director of the Iowa Association for Justice, told Bleeding Heartland on February 18 that the legislature’s intention to reject the rules update is “yet another example of hostility toward the Judicial Branch by legislative leaders.”

The Court’s advisory committee followed a deliberative and balanced process to come to these recommended rules changes, which involved stakeholders from all sides of criminal law, including judges and prosecutors.

On balance, these recommended rules changes were a positive development for the criminal justice system. The legislature has disrupted that balance. They are seeking to eliminate recommendations that benefit the rights of the criminally accused. It’s disappointing and disrespectful to the Judicial Branch and the Iowans who rely on a fair process.”

It’s worth noting that Justice Mansfield, who chaired the criminal procedure task force, is a staunch conservative appointed by Governor Terry Branstad. In 2016, presidential candidate Donald Trump included Mansfield on his long list of possible U.S. Supreme Court appointees.

In 2019, the Republican-controlled legislature and Governor Kim Reynolds altered Iowa’s merit-based judicial selection process that had been in place since 1962. That law replaced an Iowa Supreme Court justice with an additional appointee of the governor on the State Judicial Nominating Commission, which recommends finalists for the state Supreme Court and Court of Appeals.

A new bill that survived the legislature’s first “funnel” deadline this year would remove judges from district judicial nominating commissions and give the governor an additional appointee on those bodies, which recommend finalists for District Court vacancies.

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Appendix 1: Revised rules of criminal procedure submitted by the Iowa Supreme Court to the Legislative Council on January 31

Appendix 2: February 1 news release from the Iowa Judicial Branch

Following three years of extensive study, review, and public comments, revised Iowa Court Rules of Criminal Procedure were approved by the Iowa Supreme Court and will go into effect July 1, 2022. Iowa’s criminal procedures have not undergone a comprehensive revision since 1978.

With the revisions, the rules were streamlined, simplified, and updated to reflect court decisions and legislation while eliminating outdated language. There is approximately a 20 percent reduction in the word count.  The supreme court also approved new and updated court forms. The full text of the final revised rules and forms is available here.

In 2018, the supreme court created a comprehensive task force of judges, prosecutors, defense attorneys, and law professors from around the state to review the rules and make recommendations for amendments and updates, as well as proposed new rules. The full task force, chaired by Iowa Supreme Court Justice Edward Mansfield, met ten times to discuss rule revisions and review subcommittee reports on topics such as discovery, grand juries, immunity, pleas and plea bargaining, social media, sentencing, and trial on the minutes.

Following the supreme court’s review of proposed changes in February 2020, the proposed rules were put out for more than 100 days for public comment. Twenty-four public comments, collectively totaling more than two hundred pages, were submitted from a variety of individuals and organizations for the supreme court to review. The public comments are available here. The full task force reviewed the submitted comments and propose revisions based on the feedback received. An explanation and summary of significant changes in response to the public comments is available here.

The task force also reviewed judicial branch policies and practices implemented in response to the COVID-19 pandemic, feedback from district judges regarding the practices, and recommendations provided by the supreme court’s Lessons Learned Task Force. For example, the task force recommended proposed rule revisions to allow defense counsel to waive certain proceedings— such as the initial appearance, preliminary hearing, and arraignment—and certain rights—such as the 90-day speedy trial right—on behalf of the defendant with the defendant’s consent. The task force also proposed rule revisions allowing defendants to appear by interactive audiovisual system for certain proceedings and upon meeting certain conditions. And, the task force recommended expanded use of written guilty pleas from misdemeanors to include nonforcible class “D” felonies.  

The revised rules will take effect on July 1, 2022, subject to Legislative Council review as provided by Iowa Code section 602.4202. This includes criminal cases filed after that date and criminal cases already pending on that date. However, judicial districts or individual district judges may, in the exercise of their discretion, exempt any case that was pending before July 1, 2022, from one or more of the revised rules.

A summary of the revisions can be found here. All of the supporting documents are on the Iowa Judicial Branch website supreme court orders page at https://www.iowacourts.gov/iowa-courts/supreme-court/orders/

The task force members were:

• Honorable Edward Mansfield, Justice, Iowa Supreme Court, Des Moines, Chair
• Honorable Thomas  Bitter, District Court Judge, Dubuque
• Angela Campbell, Criminal Defense Attorney, Des Moines
• Mary Conroy, Assistant  Appellate Defender, Ames
• Honorable Meghan Corbin, then Criminal Defense Attorney and Magistrate, now District Judge, Davenport
• David Denison, Staff Attorney, Iowa Supreme Court
• Honorable Linda Fangman, District Court Judge, Waterloo
• Gerald Feuerhelm, Criminal Defense Attorney, Des  Moines 
• Honorable Myron Gookin, District Court Judge, Fairfield
• Aaron Hawbaker, State Public Defender’s Office, Waterloo
• Professor Emily Hughes, University of Iowa College of Law, Iowa City
• Jaki Livingston, Assistant Polk County Attorney, Des Moines
• Professor David McCord, Drake University Law School, Des Moines
• Alan Ostergren,  then  Muscatine County Attorney, Muscatine, now Attorney, Des Moines
• Honorable David Porter, District Court Judge, Des Moines
• Darin Raymond, Plymouth County Attorney, LeMars
• Aaron Rogers, Assistant Attorney General, Des Moines
• Honorable DeDra Schroeder, District Court Judge, Osage
• Alfred Willett, Criminal Defense Attorney, Cedar Rapids