Former state Rep. Ed Fallon

The Fallon Forum, which will air on 98.3 WOW-FM from 7 to 8 p.m., will replace some of the airtime currently given to syndicated host Michael Savage, a controversial conservative talker. The show is touted as offering a progressive, liberal point of view on a medium dominated by conservative opinions.

“For too long, Iowa’s airwaves have been dominated by Rush Limbaugh, Jan Mickelson, Steve Deace, Glen Beck and Michael Savage,” Ed Fallon said. “Well, times are changing, and this is an unprecedented opportunity for those of us concerned about pressing economic, social and environmental issues to have our voices heard.”

The Fallons are underwriting the costs of the show through advertising and sponsorships. Sponsors include the Progressive Coalition of Central Iowa (PCCI), Equality Iowa, the Sierra Club of Iowa, and the Subjective Theatre Company of Des Moines.

WOW-FM is already home to the only other liberal host in the Des Moines market, Chris Bradshaw, whose show runs opposite Rush Limbaugh from 1 to 4 p.m.

The Fallons kick-off the show on Monday with Dolores Huerta, who helped found the United Farm Workers with Cesar Chavez. At 79, she remains an energetic, outspoken advocate for many important causes, including marriage equality.

On Tuesday, the show will dig into current affairs in Iowa politics. Zach Mannheimer with The Subjective Theatre Company joins the show on Wednesday to discuss the merger of the artistic and corporate worlds, including a spirited discussion of the new sculpture garden set to open in downtown Des Moines. On Thursday, the conversation will turns to America’s historic health care debate.

Fallon, who lost to Culver in a three-way Democratic gubernatorial primary in 2006, said the public has seen “little to no progress on key front-and-center concerns such as climate change, labor law, campaign finance and the regulation of corporate hog confinements, to name a few.”

Fallon also points to Culver’s response to last year’s floods and the state of the economy as reasons why the public is losing faith in their governor.

Former state Rep. Ed Fallon.

“Culver seems to have forgotten the all-important maxim ‘dance with the one that brought you,’” Fallon writes. “A disturbing number of party activists have told me they’ve been snubbed by the governor, as have many elected officials. While failing to maintain good relations with one’s political base is always a bad idea, snubbing one’s base in advance of re-election is a recipe for political suicide.”

The Des Moines Democrat then explains his own problems getting access to the governor, something he’s talked about before. At the time he made his complaints public, the governor’s staff chalked it up to a case of Fallon trying to land a job in the Culver Administration.

Culver can not expect his party’s base to support him if he continues to ignore their issues, Fallon said.

“Like so many other disgruntled Iowa Democrats, I’m tired of being asked to be a campaign foot soldier only to be ignored – and to have the issues I care about ignored – once the election is over,” he said.

The governor has been taking repeated attacks from Republicans hoping to unseat him next year, and while Fallon’s latest critique represents the most scathing to come from the left it is not the first time Culver has had problems with his party’s base.

In 2008, the governor angered labor unions after he vetoed a bill expanding collective bargaining rights for public-sector employees. At the time, labor leaders called the move an “out-and-out betrayal.” Unions contributed heavily to Culver’s 2006 gubernatorial victory.

The two sides appear to have mended their relationship, though, and during the 2009 legislative session Culver made a public push for passage of several key pieces of labor’s agenda.

Many will see Fallon’s public criticism of the governor as an indicator that he is laying the groundwork for a primary challenge in 2010.

Fallon told the Iowa Independent he will not be a candidate for governor next year.

“In fact, I’d like to be able to actively support [Gov. Culver], like I did in 2006,” Fallon said. “But first, he has to keep his promise to provide leadership on campaign finance reform and controlling urban sprawl, and he and his staff have to be more responsive to the general public.”

Nick Rhoades

An examination of the state’s HIV transmission law and related court cases by the Iowa Independent has found that certain provisions may have unintended consequences, for instance, that despite its name, actual transmission of the virus is not required for a person to be subject to prosecution under it. And some say it may be time for Iowa to make changes to the law, now more than a decade old.

The People v. Nick Clayton Rhoades

On May 1, Nick Clayton Rhoades, 34, of Plainfield, entered the courtroom of Judge Bradley J. Harris and pleaded guilty to criminal transmission of HIV, a Class B felony. Rhoades, whose only previous offense had been a 2006 operating-while-intoxicated conviction, was sentenced to 25 years in prison and a lifetime of parole.

On June 26, 2008, Rhoades met a man, unidentified in court records, while in an Internet chat room. Rhoades and the man agreed to meet that same day at the unidentified man’s Cedar Falls home. While available court records do not indicate exactly what activities occurred between the two men, a police report states that the two “did engage in intimate contact with each other.”

Three days later, according to a report filed by the Cedar Falls Police Department, an investigation into the incident was opened when the unidentified man notified law enforcement officials that he had learned from friends that Rhoades was HIV positive. The following month the man was instructed to contact Rhoades by phone and, according to the report, Rhoades provided his HIV status to the man during that phone call.

For reasons not disclosed in available court records, Rhoades was a patient at the University of Iowa Hospitals and Clinics at the time a warrant had been issued for his arrest. Hospital officials were ordered to notify Cedar Falls law enforcement prior to his discharge, so that an arrest could be made at that time. Rhoades was arrested as requested on Sept. 28, 2008, and transported to the Black Hawk County Jail. He initially pleaded not guilty.

Rhoades was given a pre-trial evaluation shortly after his arrest by a probation/parole officer who concluded that the defendant had “possible substance abuse” problems as well as “mental and physical health issues.” The evaluating officer also determined that Rhoades was a danger to the community and posed a flight risk. The recommendation was for the court to deny Rhoades release with supervision under the Pre-Trial Services Intensive Supervision Program.

The Black Hawk County Jail remained Rhoades’ home until shortly after his sentencing date in May, when he was transferred to a state correctional facility in Johnson County that serves as both a classification center for all new inmates and a psychiatric hospital. In sentencing documents, Judge Harris indicated the 25-year sentence was appropriate due to Rhoades’ age, history, family and employment situation, nature of the offense, plea agreement and “consequences of offense, defendant’s mental health condition [and] remorse.”

The Iowa Independent asked James Metcalf, attorney representing Rhoades, to clarify references within the case file related to mental health. Metcalf stated that his client suffered from depression, but did not elaborate. Metcalf also indicated that, because the judge had provided a 12-month window for re-evaluation, he intended to ask the court to reconsider the sentence.

Mary Stegmeir, reporting for the Waterloo-Cedar Falls Courier, quoted Rhoades as saying during the sentencing hearing that living with HIV is like “carrying a concealed weapon,” and that he “always wanted to be part of the solution, and not part of the problem.” Rhoades, who participated in AIDS education efforts, said: “Clearly, I’ve fallen short in this case.”

Intimate contact between the two men was described as consensual, although enhanced by pharmaceuticals and alcohol, and the unidentified man has since tested negative for HIV. Ironically enough, in 1998 when Rhoades first learned that he was HIV positive, state lawmakers nearly unanimously passed the portion of the criminal code that led to his prosecution and prison sentence.

Iowa’s criminal transmission law: A lesson in history

The criminal transmission law was drafted and adopted in Iowa in much the same way it was in other states. That is, criminal penalties related to transmission were required if states were to receive federal monies related to AIDS care and education.

In 1987 — years after HIV and AIDS had begun to claim lives not only within the gay community, but among intravenous drug users and blood recipients — then-President Ronald Reagan ordered the creation of the President’s Commission on the Human Immunodeficiency Virus Epidemic. The commission, which issued its final report with nearly 600 recommendations the following year, was the first to encourage states to pass criminal statutes that imposed an “affirmative” duty on those who tested positive to disclose their status with intimate partners.

Iowa initially resisted this recommendation, which did not have a monetary attachment, and did not move to criminalize transmission until a decade later, eight years after the federal government passed the 1990 Ryan White Care Act. Only two years after Iowa passed its law, the Ryan White Act was reauthorized without the criminal transmission law mandate, but by that time 32 states had already passed laws specific to HIV, and all 50 certified they had laws to address such transmission.

If a person in Iowa knows that he/she is HIV positive, Iowa’s law makes it a felony if that person:

a) engages in intimate contact with another person,

b) transfers, donates or provides blood, tissue, semen, organs or other potentially infectious body fluids for transfusion, transplantation, insemination or other administration to another person, or

c) dispenses, delivers, exchanges, sells or in any other way transfers to another person any non-sterile intravenous or intramuscular drug paraphernalia previously used

The law also very specifically notes, in direct contradiction to its formal title, that actual transmission is not required for a person to be prosecuted. Engaging in activity that results in intimate contact, defined as intentional exposure of body fluid, could result in prosecution.

Under this definition, activities recognized by the federal Centers for Disease Control and Prevention as holding a minuscule risk of transmission — such as kissing — could still be subject to prosecution under Iowa law.

In addition, there is only one affirmative defense that can be offered by an HIV-positive person accused of engaging in the suspect activities: Informed consent. What Iowa law doesn’t offer, however, is a specific definition or outline of what informed consent is.

Further, Iowa law not only mandates informed consent of the specific act, but for the person consenting to have knowledge “that the action of exposure could result in transmission.” While this particular phrase could have been added as a protection for individuals with mental deficiencies, could it also be used to prosecute someone who engaged in a low-risk intimate activity without realizing that the activity could potentially result in transmission?

Since state archives from more than a decade ago are limited, the only way to determine intent is to query lawmakers who took part in the now 11-year-old process.

“I wish I could remember specifics,” said Ed Fallon, who formerly served in the Iowa House and was one of the unanimous votes to pass this portion of the law. “I have a vague memory of discussion regarding this legislation being connected to federal funds, but I can’t remember any specific conversations that might have been held at that point.

“I’ve been arguing for a long time that there needs to be a better and more detailed archive of these types of records. It’s important, especially when questions like this are posed, that we have something to fall back on other than often sketchy memories from those involved.”

Senate and House journals, which do exist for the time period, offer an extremely narrow view of what happened. What is known is that the criminal transmission law was passed alongside a mandate for all convicted or alleged sexual offenders be tested for HIV. Although the original bill called for only convicted sex offenders to be tested, a bipartisan amendment broadened the scope to include alleged offenders. All lawmakers at the time save one — the late Sen. Mary Lundby, who was not present in the chamber — voted to approve the amended bill.

It was signed by Gov. Terry Bradstad on April 13, 1998.

COMING WEDNESDAY: Despite questions and apparent inconsistencies in the law, Iowa courts have held firm, upholding long prison sentences against defendants convicted under the HIV transmission law.

The bill in question, H.R. 2454, seeks to reduce emissions by imposing a national limit, or cap, on greenhouse gases. It would then allow polluters to buy and sell their emissions credits. If a polluter emitted less than its allotment, it could sell the excess.

Earlier today, former state Rep. Ed Fallon criticized Boswell for opposing the measure, which garnered a quick response from Boswell spokesman Mark Daley.

“Despite his ardent support for climate change legislation, the current version threatens to unfairly increase energy costs for Iowa families and others across the Midwest, while giving windfall profits to coastal energy companies,” Daley said in a memo released to the media. “Additionally, the legislation would greatly increase the cost of doing business for Iowa farmers and ranchers and excludes them from being a part of the solution.”

Daley goes on to lay out Boswell’s three biggest concerns with the climate change legislation:

- Farmers would shoulder the cost of increased fuel, fertilizer and electricity without any assistance.

- The Environmental Protection Agency, and not the USDA, would oversee the program.

- The system allocating emissions allowances to utilities is heavily biased against the Midwest.

Boswell’s 2008 opponent in the Democratic primary, Ed Fallon, along with his wife Lynn are calling on him to support the measure and “do as Al Gore would do.” Former Vice President Gore endorsed Boswell just before the contentious 2006 primary.

“Perhaps Gore hoped that his endorsement would encourage Boswell to turn over a new leaf,” Fallon said. “Well, last week Boswell let Al Gore down. More important, he let his constituents down. If Boswell truly wanted to be ‘on the front lines’ in the fight to address climate change, he would throw his weight behind HR 2454 instead of actively opposing it.”

The bill sets up a system of trading carbon credits, which would be purchased by industries that produce greenhouse gases. Agriculture is exempt from having to buy credits, but farmers can sell them if they manage to reduce emissions of greenhouse gases. The cap and trade system would be managed by the Environmental Protection Agency.

Boswell said recently that he and most members of the House Agriculture Committee could not vote for the legislation as it stands. Boswell wants the U.S. Department of Agriculture instead of the EPA to be in a charge of the credit program for farmers.

Boswell and several farm state Democrats have threatened to join with Republican and vote against the legislation. Fallon, in a press release reminiscent of his Congressional campaign, said Boswell’s position is nothing new.

“Regrettably, Boswell’s position on HR 2454 is consistent with his long history of opposition to pro-environment legislation,” he said. “In August of 2001, he voted against an amendment that would have raised fuel efficiency standards to 27.5 mpg. In July of 2005, he voted for $14.5 billion in tax breaks and incentives for energy companies, even though House Democrats opposed the bill 124-75. In June of 2006, he voted to end a 25-year moratorium on offshore oil drilling.”

The complaint was filed by former Democratic state Rep. Ed Fallon and his wife, Lynn. Bartz used the resources of the Senate Republican caucus to ask county officials not to issue marriage licenses to couples of the same gender in defiance of the Iowa Supreme Court’s decision legalizing same-sex marriage. To date no same-sex couples in Iowa have been denied a license.

In dismissing the complaint, the committee concluded Bartz was simply exercising his right to free speech.

The complaint, filed by former state Rep. Ed Fallon and his wife Lynn, alleges Bartz used his office and public resources to encourage other elected officials to disobey state law.

Bartz used the Web site of the Republican Party’s Senate caucus to urge opponents of same-sex marriage to collect signatures and deliver them to county recorders demanding that they refuse to issue marriage licenses to same-sex couples, in direct defiance of an Iowa Supreme Court decision. Attorney General Tom Miller instructed county recorders that doing so would be illegal, and to date no same-sex couples in Iowa have been denied a license.

Ben Stone, executive director of Iowa ACLU, said the ethics complaint is a threat to Bartz’s free speech.

The ethics committee, which is chaired by Senate President Jack Kibbie, will convene Tuesday at noon at the Iowa Capitol.

There are few images more effective in a campaign mailer than a photo of a sketchy guy’s shadow superimposed on a sidewalk next to a playground.  Or a photo of kids looking vulnerable, without their parents in sight, with apocalyptic text asking “Why does candidate X refuse to protect our children?”

The most recent, high-profile example of this tactic came from an independent expenditure during last year’s Democratic primary for the 3rd Congressional District.  Former State Rep. Ed Fallon, famous for being a lone “no” vote on countless bills during his time in the legislature, was attacked in mailings because he voted against Iowa’s original “2,000-foot rule,” which prohibited sex offenders from living near schools and certain other places where children congregate.

“Ed Fallon thought it was more important to cast his vote to make a political statement than to cast a vote that protects our kids from these dangerous predators,” the mailing said, beneath a photo of an inmate watching children at play.

Ironically, nowadays almost everyone — lawmakers, analysts, and peace officers — agree that the old law was inadequate and potentially counterproductive.

In the Senate, the issue was pretty cut-and-dried, and both the Democratic and Republican caucuses supported the new bill.  The House appears to be more fractured (as has often been the case this year), with GOP leaders saying they plan to try to kill significantly alter the measure.

That is probably making a lot of state representatives from both parties nervous.  During the next campaign, both sides of the issue could cast the other as soft on sex offenders.  A “yes” vote would allow more sex offenders to live near schools, but it would also allow law enforcement to arrest the most serious offenders for loitering near a school, even if they don’t live there.  A “no” vote would allow sex offenders to continue loitering near children without much interference from law enforcement, but it would keep the stricter 2,000-foot rule in place.

In the strained logic of a direct mail campaign, either vote could have dire political consequences, and the winning side will be the one that is willing to make the most intellectually dishonest argument.  That’s not a good place for the state of Iowa to be.

On sex offender bills, legislators must seek strength in numbers if they hope to avoid a messy and expensive direct mail war in 2010.  Only an overwhelming vote in one direction or the other can prevent it.

Bartz has begun a petition drive asking opponents of same-sex marriage to collect signatures and deliver them to county recorders demanding that they ignore the Iowa Supreme Court’s decision legalizing same-sex marriage and deny marriage licenses to couples of the same gender. The court’s ruling goes into effect Monday.

“For a state senator to use his office and public resources to encourage other elected officials to disobey a unanimous ruling of the Iowa Supreme Court is unconscionable, and possibly a violation of state law,” Fallon said.

The complaint has been filed with the Senate Ethics Committee inquiring as to whether Bartz’s actions constitute a violation of his oath of office.

Iowa Attorney General Tom Miller has already warned county recorders that refusal to issue a marriage license to same-sex couples would be a violation of the law and could result in being removed from office. Asked by The Des Moines Register if he was asking county recorders to engage in acts of civil disobediance, Bartz replied “I have to decide whether or not it’s civil disobedience. If you look at the code book, it hasn’t changed.”

In a statement to the Iowa Independent, Bartz said the petition drive is simply a way for Iowans to have their voices heard on the issue.

“They should have the opportunity to vote on a constitutional amendment that defines marriage as between one man and one woman, affirming the state law Defense of Marriage Act,” he said. “We have tried in the Senate on four occasions to let the voices of Iowans be heard on this issue and have been denied the opportunity all four times by obstructionist Democrats. This petition is a way for Iowans to finally let their voice be heard on this monumental issue.”

Ultimately, county recorders do not have the authority to decide whether to follow the court’s ruling, Miller said. The court’s ruling concluded that language “limiting civil marriage to a man and a woman must be stricken from the [state] statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.”

Deputy Chief of Staff Phil Roeder emails the following explanation:

Governor Culver and Lieutenant Governor Judge have always considered Ed Fallon a friend and committed public servant. That is why Governor Culver appointed Mr. Fallon to the Iowa Climate Change Advisory Council in 2007. In addition, the Governor has met several times with Mr. Fallon over the last two-and-a-half years, most recently in a very productive meeting with him on January 6 of this year.

Mr. Fallon has contacted our office on several occasions asking the Governor to create a new, full-time paid position within the office and to provide him a full-time assistant and support staff. The position Mr. Fallon seeks does not exist and will not be created. Many people want to work for the Governor, and not all of them can be accommodated.