General Information

March 27, 2015 | Category: General

This is the twelfth weekly installment of the Legislative Update for the 2015 legislative session. If you are interested in reading the text of any bill introduced this session, you may find all of the bill information here.

This week the Senate and House committees heard the following bills of interest to the judiciary:

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Civil Law

March 27, 2015 | Category: Civil

The House Judiciary Committee heard SB 361 sponsored by Reps. McMillin, Steuerwald, and Delaney, concerning defense to liability concerning liquefied petroleum gas providers. Sen. Messmer, one of the authors of the bill, explained that this bill provides that the seller, supplier, handler, or transporter of liquefied petroleum gas that was used in: (1) liquefied petroleum gas equipment; or (2) a liquefied petroleum gas appliance; involved in causing bodily injury or property damage has an affirmative defense in any action brought against the seller, supplier, handler, or transporter if a person assumed the risk of causing the bodily injury or property damage because of certain actions taken by the person in altering, modifying, repairing, or using the equipment or appliance. An amendment was introduced clarifying it is the “provider” (not the seller, supplier, handler or transporter) who has the affirmative defense in an action, and the standard for altering equipment or appliances was changed from “unreasonably alters” to “materially alters.” The amendment also removes language stating that the assumption of a risk is a complete defense to certain actions against a provider of liquefied petroleum gas.  A representative from the Indiana Chamber of Commerce testified in favor of the bill. The amendment was adopted by consent and the bill passed 11-0.

The Senate Civil Law Committee heard HB 1045, sponsored by Sen. Ford, on recreational facility immunity. This bill specifies the duties and responsibilities of the users and the operator of a recreational facility operated by an elementary, secondary, or postsecondary educational institution. Additionally, the operator of such a recreational facility who fulfills the operator’s duties and responsibilities has a complete defense to a civil action. The bill was amended to take into account the requirements of the Indiana Tort Claims Act.  A representative for Purdue University, Indiana University, and Indiana State University and a representative from the Independent Colleges of Indiana spoke in favor of the bill. The Committee expressed concern about the broad application of the bill, and held it for further amendment.

The Senate Civil Law Committee heard HB 1145, sponsored by Sens. Pete Miller, Patricia Miller, and Raatz, on civil immunity for volunteer health care providers. This bill specifies criteria for civil immunity from liability for certain volunteer health care providers. It requires the professional licensing agency to establish and maintain a process for the approval of locations at which volunteer health care services may be provided, and a health care volunteer registry. This bill also provides that approval of a health care services location is valid for up to two years. Additionally, it requires a person who meets the criteria for immunity from civil liability to provide a record and results of laboratory and imaging based screenings and tests to the patient. The bill was amended to add podiatrist to the list of medical professionals covered, allow medical professionals to recommend screenings and tests, and create an electronic health care volunteer registry. A representative from the Governor’s office spoke in support of the bill stating that it is an opportunity to get medical attention to the underserved. Various representatives of medical professional organizations and medical professionals testified in support of the bill. A representative of the Indiana Trial Lawyers Association testified about concerns regarding medical records. The amended bill passed 7-0.

The Senate Civil Law Committee heard HB 1161, sponsored by Sen. Steele and Sen. Broden, on immunity for damage caused rescuing a child. This bill grants civil immunity to a person who forcibly enters a locked motor vehicle for the purpose of rescuing a child. It does not extend civil immunity to acts involving gross negligence or willful and wanton misconduct. The bill was amended to add the requirement to contact 911 before entering the vehicle, “if practicable, or as soon as possible thereafter.” The amended bill passed 6-0.

The Senate Civil Law Committee heard HB 1413, sponsored by Sen. Ford, on aircraft financial responsibility and liability. This bill increases the amount of financial responsibility required for the ownership, maintenance, or use of an aircraft to: (1) $100,000 for the bodily injury or death of one person; (2) $200,000 for the bodily injury or death of two or more persons in any one accident; and (3) $100,000 for damage to property in any one accident. It also provides that the owner of an aircraft who is not the pilot is not vicariously liable for damages unless the owner engages in negligent, reckless, knowing, intentional, or unlawful conduct that is the proximate cause of the damages, an agency relationship exists between the owner and the person who proximately caused the damages; or the owner’s liability is based on the doctrine of respondeat superior. The bill additionally specifies that certain provisions relating to the ownership of an aircraft are not intended to modify Indiana law on bailments or bailor liability. The definition of “operate aircraft” was technically amended by consent. The amended bill passed 7-0.

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Criminal Law

March 27, 2015 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 174, Sen. R. Michael Young’s bill on sentence modification sponsored by Rep. Frizzell. Sen. Young presented an amendment to the bill which the Committee adopted by consent.  As amended, the bill would (1) allow persons sentenced for nonviolent crimes committed before July 1, 2014 to petition for sentence modifications without any requirement of prosecutorial consent but subject to a two petition cap with a separation of at least one year between petitions, but (2) would require persons convicted of violent offenses committed prior to July 1, 2014 to obtain prosecutorial consent for a sentence modification petition filed more than 365 days after sentencing.  Public defenders testified in support of the bill, although they did not support the amendment limiting petitions by violent offenders. The bill passed as amended 10-0.

The House Public Health Committee heard SB 464 on mental health issues sponsored by Rep. Clere and Rep. Davisson. The bill:

  • Establishes reimbursement limitations for the prescription of methadone for pain management.
  • Provides that addictions counseling, inpatient detoxification services, and long-acting, non-addicting medication may be required to treat opioid or alcohol addiction as a condition of parole, probation, community corrections, community transition programming, pretrial diversion, or participation in a problem-solving court.
  • Establishes In-patient detoxification services under Medicaid.
  • Establishes non-addicting medication assisted treatment for the treatment of substance abuse under the Indiana check-up plan.
  • Authorizes the Division of Mental Health and Addiction (DMHA) to approve no more than five new opioid treatment programs prior to June 30, 2018.
  • Requires prescribers to indicate on the prescription when methadone is prescribed for pain management.
  • Establishes of the Mental Health and Addiction Forensic Treatment Services fund under the administration of DMHA to be used for grants and vouchers for mental health and addiction treatment services to community corrections, court administered programs, probation, community mental health centers, and certified mental health and addictions providers.
  • Establishes the qualifying criteria for individuals to receive funding from the Mental Health and Addiction Forensic Treatment Services fund.
  • Requires DMHA to survey recipients of Mental Health and Addiction Forensic Treatment Services funds.
  • Requires DMHA to coordinate employment and training services for individuals receiving money from the Mental Health and Addiction Forensic Treatment Services fund with the Department of Workforce Development.

An amendment was adopted by committee consent, making several changes to the bill, including:

  • Adds case management and daily living skills to the available treatment options that may be required as a condition of parole, probation, community corrections, community transition programming, pretrial diversion, or participation in a problem-solving court.
  • Reinserts the provision concerning the Department of Correction operational savings as a result of HEA 1006-2014 and authorizes these funds to be deposited in the Mental Health and Addiction Forensic Treatment Services account.
  • Requires DMHA to provide education and training on the use of involuntary commitments and medication assisted treatment to circuit and superior court judges, prosecuting attorneys and deputy prosecuting attorneys, public defenders and programs and providers eligible for funding from the Mental Health and Addiction Forensic Treatment Services account.

The amended bill passed 10-0.

The House Courts and Criminal Code Committee resumed consideration of SB 522, sponsored by Rep. Smaltz, preventing serious sexual offenders from being on school property and extend to such offenders the right to vote by mail.  The bill passed 12-0.

The Senate Corrections and Criminal Law Committee heard HB 1401, sponsored by Sen. Young and presented by author Rep. Washburn, concerning Medicaid fraud. The bill expands the crime of Medicaid fraud to include knowingly or intentionally making, uttering, presenting, or causing to be presented a claim that is materially false or misleading. After the committee received supporting testimony from the Attorney General’s Office, the bill passed 8-0.

The Senate Corrections and Criminal Law Committee heard HB 1531, sponsored by Sen. Steele and Sen. Houchin and presented by author Rep. Davisson, concerning video conferencing by confined persons. The bill provides for using two-way video conferencing between courts and DOC inmates and between jail inmates and mental health providers. The committee raised a number of questions regarding the circumstances in which video conferencing could be used. Testimony was received from the Indiana Council of Community Mental Health Centers, Public Defender Council, and Hoosier Press Association. After committee discussion, there were several amendments offered to the bill, which include requiring the defendant’s consent to video conference for court proceedings and for mental health evaluations, provides that the mental health evaluations under this statute would be for treatment and assessments, and prohibits video conferencing for competency determination assessments or for evaluations related to the defense of mental illness or mental defect to a crime.  The amended bill passed 9-0.

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Family & Juvenile Law

March 27, 2015 | Category: Family/Juvenile

The House Judiciary Committee heard SB 352, sponsored by Rep. Steuerwald and Rep. McMillin, concerning identifying information for adoptions. Sen. Steele, an author of the bill, explained that this bill repeals, effective July 1, 2016, provisions applicable to adoptions finalized before January 1, 1994, that prohibit the release of identifying adoption information unless a consent to release the information is on file. It also provides that beginning July 1, 2016 identifying adoption information may be released unless a non-release is on file, regardless of when the adoption was filed. Under current law, this provision applies only to adoptions filed after December 31, 1993. Testimony was received in favor of the bill by several adoptees and adoption advocates, and a professor from the University of Baltimore School of Law. Concerns were raised by a representative from Governor Pence’s office, and testimony against the bill was received from a local adoption attorney. The bill was held in anticipation of Committee amendments.

The Senate Family and Children Services Committee heard HB 1196 on CHINS and delinquent child dual determination sponsored by Sen. Head and Sen. Bray. Sen. Head explained that the bill coordinates services when a child is identified as both a CHINS and a delinquent. The bill authorizes the juvenile court to order a dual status assessment conducted by a dual assessment team to make recommendation to the juvenile court which agency, DCS or the probation department, will be the primary supervising agency. A clarifying amendment was adopted by committee consent. Testimony in support of the bill was heard from DCS, Judge Charles Pratt of the Allen Superior Court, and the Indiana Association of Resources and Child Advocacy. The amended bill passed 7-0.

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Judicial Administration

March 27, 2015 | Category: Administration

The House Courts and Criminal Code Committee heard SB 137, sponsored by Rep. Fine and Rep. Slager, on magistrates and criminal trials, prohibiting a magistrate’s presiding at sentencing when (1) the magistrate had not also presided at trial and (2) the defendant objected to the magistrate presiding at sentencing. Author Sen. Randolph presented the bill to the Committee.  A technical amendment was made to make the language in the bill consistent with terminology used in the Indiana Supreme Court Criminal Rules. The bill passed as amended 9-0.

The House Judiciary Committee heard SB 217, sponsored by Reps. Gutwein, McNamara, and Lawson, concerning service of process fees collected by a sheriff.  Author Sen. Boots explained that this bill increases the service of process fee from $13 to $25 from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff. The bill also provides that the sheriff may collect an additional service of process fee for post-judgment service.  Testimony was received by the Association of Indiana Counties and Indiana Sheriffs Association in favor of the bill. The bill passed 11-0.

The House Courts and Criminal Code Committee heard SB 261, sponsored by Rep. Cox, allowing interlocutory criminal appeals by the Attorney General of a trial court’s order dismissing charges. Author Sen. Young presented the bill that was amended in the Senate to add a subsection (b) which would allow the State to challenge the sentence imposed in any appeal by a defendant, even if the defendant had not raised the sentence as an issue in his appeal. After testimony was received in favor of the bill without the added subsection, the Committee adopted an amendment deleting subsection (b) and passed the bill as amended 9-0.

The House Courts and Criminal Code Committee heard SB 523, Sen. R. Michael Young’s bill to make changes to the Marion County Small Claims courts, sponsored by Rep. Frizzell. Sen. Young explained that decisions by the Indiana Supreme Court and the Seventh Circuit Court of Appeals on venue within the small claims court had adversely affected the caseload balances between the individual township small claims courts, which diminished the fee revenues for a number of the courts to the point where they were no longer able to operate on the fee collections alone as they had in the past. Sen. Young stated the bill will overcome venue problems by creating three small claims court “districts,” each consisting of three of the nine townships with a small claims court in each township.  This would allow case filings by district, which he said would help alleviate caseload imbalances and the resulting revenue problems. The small claims judges would become full time with salaries equal to 70% of a circuit court judge’s salary. The bill would also raise the court’s jurisdictional level from the current $6,000 amount-in-controversy cap to $8,000, which Sen. Young said would result in more filings in the small claims court, helping increase their operating revenue, and reducing filings in the Marion Superior Court, helping lower that court’s caseload burdens. The bill would have the Decatur and Franklin township courts, which have had the most serious reductions in operating funds, each receive $1 of the docket fees for filings in the other seven township courts.  Candidates in small claims court elections would run at-large within the three-township districts, with the three candidates receiving the greatest number of votes in the district being elected. The elected candidates could agree between themselves as to which township court each would serve in, but if no agreement could be reached the Marion Circuit Court judge would assign the judges to their courts.

Sen. Young then presented Amendment 2, which he said he had drafted after meeting with Indiana Supreme Court Chief Justice Loretta Rush.  He noted that “there’s a lot more they [the Supreme Court] want than is in this bill,” and said that he had asked the Chief Justice for the items the Court considers most needed. He said she had responded favorably to his proposal that there be a General Assembly summer study committee examination of small claims issues generally. He reported that she had said a desirable reform would be to make the small claims courts courts of record, which led Sen. Young to provide in his amendment that the small claims court would have three years to acquire the necessary equipment to become a court of record. He said the Chief Justice also said it was essential for there to be uniform practices and procedures in the nine township courts, which Sen. Young’s amendment would require to be in place by January 1, 2016.  Sen. Young also said that the Chief Justice had said that a case management system should be implemented, which he said his amendment would require to be in place by July 1, 2016.

Testimony on the bill was then received from Judge John Baker of the Court of Appeals, who described previous small claims court reform studies made first by a task force he had chaired with Court of Appeals Senior Judge Betty Barteau, second by the Indianapolis Bar Association, and third by the National Center for State Courts. Judge Baker said that Chief Justice Rush appreciated Sen. Young’s willingness to incorporate some of the Supreme Court’s major concerns in the bill, but the Judge urged the Committee to commit the small claims court issues to a legislative summer study committee for a full-spectrum assessment rather than pass SB 523 now. Further testimony was received for and against the bill from Marion Small Claims Court judges. Sen. Greg Taylor, Rep. Cherrish Pryor, and former Rep. William Crawford all urged the Committee to not pass the bill and instead send the small claims court issues to a summer study committee. In Committee discussion, five members thought it best to send the small claims court issues to a study committee, noting that after all the reform assessments there was still significant disagreement among those involved as to what should be done. Other members proposed that Sen. Young be given another week to see if the bill could be altered in a fashion which would better address objections heard in the hearing. Committee Chair Washburne decided to hold the bill for another week, to give Sen. Young an opportunity to present a revised bill with limited testimony only.

The Senate Judiciary Committee heard HB 1405 pertaining to state examiner, attorney general, and prosecuting attorneys sponsored by Sen. Niemeyer. Author Rep. Slager explained that the bill authorizes concurrent criminal jurisdiction by the Attorney General and prosecuting attorney to prosecute certain violations committed by local public officers under the purview of the State Board of Accounts. The bill also expands the Attorney General’s authority to bring a civil action to remove a public official from office when a second, unrelated violation of IC 5-11-1-10 or IC 5-11-1-21 is committed and to combine this action with an action brought under IC 5-11-5-1. An amendment was adopted by consent removing the concurrent criminal jurisdiction provisions. The State Examiner testified in support of the bill. The Association of Indiana Counties testified in opposition to the bill. The amended bill failed to pass 5-3.

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Traffic Law

March 27, 2015 | Category: Traffic

The Senate Corrections and Criminal Law Committee heard HB 1305 concerning various motor vehicle issues, sponsored by Sen. Young and presented by author Rep. McMillin.  The bill was drafted to improve on the changes made by HEA 1279-2014. The Committee took an amendment by consent that would continue the work to move the penalty provisions into the same statute as the substantive elements of the offenses. Representatives from the Indiana Prosecuting Attorney Council and Public Defender Council both testified in support of the bill.  The Committee made additional amendments to reckless driving, offenses for traveling on interstate highways, and operator responsibilities after an accident. The amended bill passed 10-0.

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General Information

March 19, 2015 | Category: General

This is the eleventh weekly installment of the Legislative Update for the 2015 legislative session. If you are interested in reading the text of any bill introduced this session, you may find all of the bill information here.

This week the Senate and House committees heard the following bills of interest to the judiciary:

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Civil Law

March 19, 2015 | Category: Civil

The House Judiciary Committee heard SB 101 on religious freedom restoration. Co-sponsor Rep. McMillin offered an amendment clarifying that the bill applies only to governmental action and does not authorize a private cause of action. The amendment passed 9-3. Sponsor Rep. Wesco explained that the bill restores the strict scrutiny standard of review for governmental intrusions on an individual’s exercise of religion. A governmental entity may burden a person’s exercise of religion if the burden: (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering the compelling governmental interest. The bill provides a procedure for remedying a violation of this law. Extensive testimony was heard in support of and in opposition to the bill. The amended bill passed 9-4.

The Senate Civil Law Committee heard HB 1413, sponsored by Sen. Ford, on aircraft financial responsibility and liability. This bill increases the amount of financial responsibility required for the ownership, maintenance, or use of an aircraft to $100,000 for the bodily injury or death of one person, $200,000 for the bodily injury or death of two or more persons in any one accident, and $100,000 for damage to property in any one accident. It also provides that the owner of an aircraft who is not the pilot is not vicariously liable for damages unless:

(1)  the owner engages in negligent, reckless, knowing, intentional, or unlawful conduct that is the proximate cause of the damages;

(2)  an agency relationship exists between the owner and the person who proximately caused the damages; or

(3)  the owner’s liability is based on the doctrine of respondeat superior.

This bill additionally specifies that certain provisions relating to the ownership of an aircraft are not intended to modify Indiana law on bailments or bailor liability. The bill was held for amendment.

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Criminal Law

March 19, 2015 | Category: Criminal

The House Public Policy Committee heard SB 6, sponsored by Rep. Dermody, powdered or crystalline alcohol prohibited. This bill makes it a Class B infraction to possess, purchase, sell, offer to sell, or use powdered or crystalline alcohol. The bill was amended to assign the subject of crystalline alcohol to a study committee. The amended bill passed 13-0.

The Senate Judiciary Committee heard SR 34 authored by Sen. Messmer urging the legislative council to assign to an appropriate committee the topic of the sentencing level of a caregiver who causes the death of a mentally handicapped person 18 years of age or older. The resolution passed 6-0.

The House Courts and Criminal Code Committee heard SB 94, Sen. Crider’s bill to extend the statute of limitations for rape to allow prosecutions for Level 3 felony rapes within five years of the time prosecution becomes possible with DNA evidence or the time a confession is obtained.  Rep. Hale testified in support of the bill, as did David Powell of the Indiana Prosecuting Attorneys Council.  The bill passed 11-0.

The House Courts and Criminal Code Committee heard SB 313, sponsored by Rep. Kirchhofer and Rep. Hale, Sen. Head’s bill to change the definition of “sexual conduct” to include exhibition of the female breast as used in child exploitation and pornography offenses.  After Sen. Head presented the bill, Suzanne O’Malley of the Indiana Prosecuting Attorneys Council said that the law had been amended to include breast exhibitions two years ago, but that such exhibitions were excluded inadvertently in last year’s legislation. A representative of the Motion Picture Association of America testified in support of the intent of the bill, but noted that it posed several problems, including display of films with actresses over age eighteen portraying characters under age eighteen and having its “descriptions” prohibition applied to verbal descriptions or drawings in violation of the First Amendment. The bill passed 10-0.

The House Public Policy Committee heard SB 433, sponsored by Rep. Lucas, repealing the prohibition against manufacturing, importing, selling, or possessing a sawed-off shotgun. This bill also provides for a 10-year sentence enhancement if a person possesses a sawed-off shotgun in violation of federal law while committing certain offenses. A representative of the National Rifle Association testified in favor of this bill. The bill passed 12-1.

The House Courts and Criminal Code Committee heard SB 522, deterring serious sex offenders from entering school grounds.  Sen. Mrvan explained that the bill defines “serious sex offenders” and makes it a Level 6 felony for a serious sex offender to enter school property. The bill allows these offenders to vote by mail. The Committee expressed concern about the bill’s creation of a new category of sex offenders and asked whether the sex offender registry or sexually violent predator statutory categories could be used instead.  In discussion, it was noted that the sex offender registry responsibility ends for many after ten years and that sexually violent predators could seek to have their status removed by judicial hearing.  Sponsor Rep. Smaltz said that he and Sen. Mrvan are willing to utilize the sex offender registry definition instead. The bill was held to allow the definition change to be explored.

The House Courts and Criminal Code Committee heard SB 532, sponsored by Reps. McNamara, Cox, Hale and Lawson, on forfeiture of property used in human trafficking and indecent nuisances.  Sen. Head explained that sexual trafficking would be added to the indecent nuisance statutes, and provide that 80% of the money obtained from property taken in prosecutors’ human trafficking indecent nuisance actions would go into a human trafficking prevention and victim assistance fund established by the bill, with the remaining 20% going to the prosecutor.  Sen. Head agreed to a Committee amendment incorporating SB 375 into this bill, which provides for asset seizure and forfeiture of vehicles and other property used in human trafficking or promoting prostitution. The Committee also adopted Rep. Pierce’s amendment, making the bill consistent with Sen. Hershman’s SB 388, on asset forfeiture reporting. SB 388 requires the State Police to report the amounts received from human trafficking forfeitures through cooperation with federal authorities and for prosecutors to report to the Prosecuting Attorneys Council on funds received through state human trafficking forfeiture actions. The bill passed as amended 10-0.

The Senate Judiciary Committee heard HB 1006 on criminal justice funding sponsored by Sen. Steele and Sen. Young. Author Rep. Steuerwald explained that the bill reduces the deadline for submitting a collaboration plan between the probation department and the community corrections program in each county for the provision of community supervision for adult offenders from July 1, 2017 to January 1, 2016. The date upon which persons convicted of a Level 6 felony may not be committed to the DOC, unless the commitment is due to a probation, parole or community corrections violation, was also extended until after January 1, 2016. The bill authorizes community corrections grant funds to be used to support court supervised recidivism reduction programs. The bill establishes the justice reinvestment community grants program under the administration of the Indiana Judicial Center, and vests the authority to adopt rules for the program in the Judicial Conference of Indiana Board of Directors (including the requirement that at least 75% of awarded funds must be used to provide evidence-based mental health and addiction treatment). A justice reinvestment community grants program advisory council (membership specified) is established and charged with making recommendations to the Judicial Center on the award of grant applications. An amendment was adopted by consent adding representatives from the Probation Officers Professional Association of Indiana and the Indiana Association of Community Corrections Act Counties to the advisory council.

Extensive testimony was heard in support of the bill from representatives of:  the Indiana Judicial Center, the Probation Officers Professional Association of Indiana, the Indiana Prosecuting Attorneys Council, the Indiana Public Defender Council, Lawrence County Superior Court, the Indiana Judges Association, the Monroe County Probation Department, the Marion County Probation Department, Vanderburgh County, Allen County, Mental Health America of Indiana, the Indiana Association of Community Corrections Act Counties, the Indiana Council of Community Mental Health Centers, the Indiana Sheriffs’ Association and two vendors currently partnering with community supervision agencies. The amended bill passed 9-0.

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General Information

March 13, 2015 | Category: General

This is the tenth weekly installment of the Legislative Update for the 2015 legislative session. If you are interested in reading the text of any bill introduced this session, you may find all of the bill information here.

This week the Senate and House committees heard the following bills of interest to the judiciary:

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