Iowa prosecutors worry bill would usurp local decisions

DES MOINES — The Iowa Attorney General’s authority to take action in criminal proceedings — regardless of the county attorney’s decision — would be enshrined in state law under a provision in Gov. Kim Reynolds’ sweeping proposal to reorganize state government.

While the proposed language restates what already exists in Iowa law, some county attorneys are concerned it could open the door to the state attorney general being able to overrule their local decisions and actions.

“It is infringing on our prosecutorial discretion,” said Tina Meth-Farrington, the Calhoun County Attorney and president of the board of directors of the Iowa County Attorneys Association, describing the process by which county attorneys use their professional judgment to preserve limited government resources necessary to achieve just and fair outcomes in individual cases.

“We have an ethical duty to do justice … for everybody that’s involved in the system,” said Meth-Farrington, who has been county attorney since 2013 and has worked in the county attorney’s office since 1998. “I don’t campaign … because I don’t want this office politicized, and this (proposal) is kind of throwing politics into the game, and I just don’t like that.”

Meth-Farrington, like Reynolds and newly elected Iowa Attorney General Brenna Bird, is a Republican.

While the Iowa Attorney General always has had the legal authority to take action in criminal proceedings in the state’s interest, it was the office’s practice for decades, under previous attorney general Tom Miller, to do so only with the county attorney’s blessing.

While it was not required by law, it was Miller’s practice to consult with and defer to county attorneys before he deployed the Attorney General’s Office’s resources to a criminal proceeding. Because Miller served for so long — he occupied the office for four decades, with the exception of one four-year term in the early 1990s, and was the longest-serving state attorney general in U.S. history — that deference became the office’s de facto policy.

Bird, the former Guthrie County Attorney, defeated Miller, a Democrat, in last November’s election, and became Iowa Attorney General in January.

Reynolds, during her annual condition of the state address in January, announced her intention to broadly reorganize state government. Her office hired a consulting firm to make recommendations, and earlier this month her proposal was published in the form of a nearly 1,600-page bill.

The section of Reynolds’ bill that deals with the state’s justice system, including the Attorney General’s Office, contains a proposal to add to state law the following provision:

“The attorney general may prosecute a criminal proceeding on behalf of the state even if a county attorney does not request the attorney general to act as a county attorney in a proceeding under (state law).”

Meth-Farrington said the provision was not requested by Bird or her office, and that Bird was surprised to see it in the bill.

Bird was not made available for an interview last week, and a statement from her office did not address the question of whether she had requested the provision.

“Long-standing (state law) already authorizes the Attorney General’s Office to prosecute criminal cases when it is in the state’s interest. The bill clarifies that responsibility,” Bird’s press secretary, Alyssa Brouillet, said in a statement. “As a former county attorney, Attorney General Bird respects the primary duty of county attorneys to prosecute criminal cases and looks forward to continuing her close cooperation with them on criminal cases.”

During a legislative hearing on that section of the bill this month, Reynolds’ legislative liaison explained the proposal to lawmakers.

“Iowa code should make clear that the Attorney General’s Office has jurisdiction to prosecute, even if the county attorney doesn’t request,” legislative liaison Molly Severn said during the hearing. “The attorney general should ultimately be responsible.”

Dan Breitbarth, an assistant attorney general for legislative affairs in Bird’s office and a former assistant Boone County Attorney, also testified at the legislative hearing and pledged that the office would continue to respect county attorneys’ prosecutorial discretion.

“We already work closely with the local county attorneys. … We have a good working relationship with virtually all the county attorneys across the state, and we look forward to that,” Breitbarth said. “(Regarding prosecutorial discretion) the county attorneys obey that, and we plan to obey that as well.”

County attorneys have expressed unease nonetheless.

At the legislative hearing, a lobbyist for the organization that represents all 99 Iowa county attorneys said the group opposes the proposal and raised questions about it.

Kelly Meyers, who lobbies for the Iowa County Attorneys Association, suggested the proposal could lead to political considerations driving the decision of how or whether to prosecute criminal proceedings.

“County attorneys are elected officials who answer to the voters of their counties, their constituents,” Meyers said. “We do believe it is and should remain an invitation” for the Attorney General’s Office to participate.

Meth-Farrington described the proposal as a “single-problem bill,” and expressed concern it would create unintended consequences. She said it could lead to cases where if an individual or family is upset with a county attorney’s approach to a case, they could go to the attorney general and attempt to persuade the state office to take over.

“My initial reaction to it when I first saw it was that it was overreaching,” she said.

Meth-Farrington said she believes the proposal is intended in part to position the Attorney General’s Office to prosecute local cases even if a county attorney opts against it.

While Meth-Farrington did not name her specifically, newly elected Polk County Attorney Kimberly Graham, a Democrat who now represents Iowa’s largest county, pledged during her 2022 campaign to not use the office to prosecute low-level drug crimes like marijuana possession, and to not request bail for people who are not considered a violent threat.

When asked about Reynolds’ proposal, Graham declined to comment and deferred to the state county attorneys association’s comments.

A spokesman for Graham’s office said Monday that her pledge referred specifically to marijuana possession, and that individuals arrested for possession of small amounts will be sent to diversion programs, which could ultimately lead to deferred prosecution.

“It’s really not going to solve any problems,” Meth-Farrington said. “It’s really not necessary. I don’t understand. But it’s there because there’s a concern there have been county attorneys who campaigned on spending time and resources on more important things instead of low-level crimes.”

Linn County Attorney Nick Maybanks told The Gazette he still is investigating the implications of the proposal, and Johnson County Attorney Rachel Zimmermann Smith declined to comment. Both are Democrats.

Sen. Jason Schultz, a Republican from Schleswig who has been managing Reynolds’ bill in the Senate, said during the hearing that one reason the proposal is needed is because, in his view, some law enforcement officials are not properly enforcing the law.

“Not enforcing the law has become a political position,” Schultz said. “(The proposal is) trying to make sure somebody is enforcing the law.”

Sen. Michael Bousselot, a Republican from Ankeny and another lawmaker on the legislative panel considering the bill, said there should be “multiple avenues” for justice to be accomplished and expressed his trust in Bird to use her authority properly.

“I have faith in AG Bird to use this responsibly,” Bousselot said.

Democrats on the legislative panel stated their strong opposition to the proposal, describing it as a political play and a power grab.

“This is not about doing justice. This is about doing politics through criminal justice,” said Sen. Nate Boulton, a Democrat from Des Moines and a lawyer. “That is something that is going to disrupt a critical working relationship between the county attorneys and the Attorney General’s Office.”

Reynolds’ government reorganization bill, Senate Study Bill 1123, is in the early stages of the legislative process. For it to become law, it must be approved by the Iowa House and Senate before being sent to Reynolds for her signature.

Because of its size and scope, the bill is scheduled for a fourth subcommittee hearing — the vast majority bills receive just one subcommittee hearing — on Monday. Its next step would be consideration by the Senate’s committee on state government.

Trish Mehaffey of The Gazette contributed to this report.

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