This is the eighth weekly installment of the Legislative Update for the 2014 legislative session. If you are interested in reading the text of any bill introduced this session, you may find the bill information at the link below:
This week the Senate and House committees heard the following bills of interest to the judiciary:[Permalink]
The House Judiciary Committee heard SB 138, sponsored by Rep. Kubacki and Rep. Lawson and authored by Sen. Becker, on victim advocates in civil proceedings. This bill removes restrictions on grants from the Victim Services Division of the Indiana Criminal Justice Institute for certain entities to enter into a contract with the Domestic Violence Prevention and Treatment Council. It also provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary, and specifying that a victim advocate is not considered to be practicing law when performing certain services. Indiana Coalition Against Domestic Violence testified in favor of the bill. The bill passed 7-0.[Permalink]
The House Courts and Criminal Code Committee discussed SB 88, on mental health witnesses in criminal cases, sponsored by Rep. Bacon. The bill removes the requirement that one of the court-appointed witnesses in an insanity defense case must be a psychiatrist. The Committee adopted by consent an amendment which addressed issues raised in the hearing last week. The amended bill passed 9-0.
The House Courts and Criminal Code Committee heard SB 169, providing firearms to an ineligible person; firearm theft, sponsored by Rep. McMillin and Rep. Steuerwald. Senate author R. Michael Young presented the bill, which makes it a Level 5 felony to provide a firearm to a person the provider knows either is legally ineligible to have a firearm or is going to use the firearm to commit a crime. The bill makes it a Level 2 felony if the person uses the firearm to commit murder. The bill also makes it a Level 5 felony ‘straw purchase” to purchase a handgun for another knowing the other is ineligible to have a handgun, or when the purchaser knows the person he is buying a handgun for will use the handgun to commit a crime, or to purchase a handgun with the intent to transport it to another state and transfer it there to one the purchaser knows is either ineligible or will use it to commit a crime. “Straw purchase” is a Level 2 felony if the handgun is used to commit murder. The bill also permits the State to seek a 10 to 20 year sentence enhancement if a person uses a firearm to commit: (1) a felony against the person that results in death or serious bodily injury; or (2) kidnapping, or Level 2 or 3 criminal confinement. Members noted that there was no time limit for criminal liability; Sen. Young said the way to avoid liability is to refrain from giving a firearm to an individual know to be ineligible or intending to commit a crime. Indianapolis Mayor Ballard testified in favor of “mandatory minimums” for persons who use firearms to commit crimes, noting the city’s recent surge in crimes committed with firearms. Rep. McMillin introduced an amendment reducing the sentence limit from 10 years to 5 years for the use of the firearm to commit the felony against a person resulting in death or serious bodily injury, kidnapping, or Level 2 or 3 criminal confinement.The amendment was adopted by consent. Sen. Merrit spoke in favor of the bill, as did the Indiana Prosecuting Attorneys Council. The amended bill passed 8-1.
The Senate Appropriations Committee heard HB 1006, reconciling technical and substantive conflicts between HEA 1006-2013 (the criminal code revision bill) and other bills concerning criminal law authored by Representatives Clere and Steuerwald, and sponsored by Sens. Becker, Steele, R. Michael Young, and Breaux. Sen. Kenley introduced two amendments to the legislation.
The first amendment adds Sen. Yoder’s SB 43 on child seduction bill to the legislation. The amendment makes it child seduction, a Level 6 felony, for a law enforcement officer who is at least five years older than a child who is at least 16 years of age, but less than 18 years of age; to fondle or touch the child with the intent to arouse or satisfy the sexual desires of either the child or the law enforcement officer, if the law enforcement officer’s contact with the child occurred in the course of the officer’s official duties. The amendment makes it child seduction, a Level 5 felony, if the law enforcement officer engages in sexual intercourse or other sexual conduct with the child. The amendment was adopted by consent.
The second amendment requires, that before March 1, 2015, the Department of Correction to estimate any operational cost savings realized in the state fiscal year ending June 30, 2015 attributable to sentencing changes made under the legislation and if cost savings will be realized, the department may grant community corrections grants to counties for local programming. The department may also transfer saved funds to the judicial conference to be used to support probation services. The maximum amount of these additional grants and transfers may not exceed the lesser of the amount of operational cost savings or $11,000,000. The amendment also reduces the sentence for arson with intent to defraud, institutional criminal mischief, an offense against intellectual property, and auto theft from a Level 5 felony to a Level 6 Felony. The amendment also reduces the maximum penalties for Level 1 felonies from 50 to 40 years, Level 3 felonies from 20 to 15 years, Level 4 felonies from 12 to 10 years, and Level 5 felonies from six to five years. Advisory sentences for Level 3 felonies are reduced from ten years to eight years. The amendment also addresses “sexting” and provides that a person less than eighteen who possess an indecent image of another person less than eighteen years of age commits a Class A misdemeanor if the person is in a dating relationship, the age difference is not more than four years, and the person acquiesced in the taking or transmission of the indecent image. The amendment specifies that an individual prosecuted for possession of an indecent image as a misdemeanor may not be prosecuted for possession of child pornography or child exploitation. The amendment was adopted by consent.
The Indiana Prosecuting Attorney Council testified supporting the House version of the bill, taking no position on Sen. Kenley’s second amendment. The Public Defender’s Council testified in support of Sen. Kenley’s second amendment but expressed some concerns with other provisions of the bill – particularly the enhancement for committing a crime within 250 feet (instead of 500 feet) of a school, family housing complex, child care facility, or public park.
A defense attorney testified also expressing concerns with the reduced drug free zones provision. The Attorney General’s office testified supporting the version of the bill that passed out of the House, without amendments, and believes the legislation is a balanced approach to public safety. The American Institute of Research testified, as the individuals who did the research for the Sentencing Policy Study Committee, that their sources of research were locally obtained using IRAS results, focus groups from local counties, and information from State Court Administration. The amended bill passed 9-2.
The Senate Judiciary Committee heard HB 1155 on expungement sponsored by Sen. Steele. Author Rep. McMillin explained that this bill cleans up last year’s second chance expungement legislation and is a product of the Criminal Law and Sentencing Policy Study Committee. The bill: (1) strikes language requiring the payment of the filing fee, (2) changes the burden of proof from clear and convincing evidence to a preponderance of the evidence, (3) eliminates a conflicting expungement procedure currently in statute, (4) allows defense attorneys and probation departments access to expunged information upon court order, (5) shortens the waiting period for filing a petition to expunge felonies higher than a D felony, (6) clarifies that expungement petitions may be amended after filing if mistakes were made in good faith, and (7) prohibits a person from waiving his/her right to expungement in a plea agreement. An amendment was adopted by committee consent allowing members of the State Board of Law Examiners access to expunged records for the purposes of determining an applicant’s good moral character during the bar admission process. A second amendment was adopted by committee consent clarifying that a person convicted of a crime of domestic violence that has been expunged may restore his/her right to possess a firearm only in accordance with IC 35-47-4-7. Representatives from the Board of Bar Examiners, Prosecuting Attorneys Council, Marion County Prosecutor’s Office, Indiana State Bar Association, and Martin University testified in support of the bill. Representatives from the Office of the Attorney General and the Department of Financial Institutions noted concerns with federal law regulating state licensing protocols which mandate access to expunged information. A final amendment was adopted by committee consent to make the bill effective upon passage. The amended bill passed 7-1.
The Senate Judiciary Committee heard HB 1378 on familial DNA searches sponsored by Sen. Zakas. The bill requires the Indiana State Police to report to the Criminal Law and Sentencing Policy Study Committee during the legislative interim on the use of familial DNA searches in criminal investigations. A technical amendment was adopted by consent. The amended bill passed 7-0.[Permalink]
The House Judiciary Committee heard SB 59, sponsored by Rep. Mayfield and authored by Sen. Bray, on a guardian filing for dissolution of marriage, legal separation, or annulment. This bill allows a guardian, including a volunteer advocate for senior programs or a volunteer advocate for incapacitated adults program, to request permission to file a petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of an incapacitated person in the guardian’s county of residence. It also allows the court to grant a request for permission to file a petition for a dissolution of marriage, a legal separation, or an annulment on behalf of an incapacitated person only if the court determines by clear and convincing evidence that petitioning for a dissolution of marriage, a legal separation, or an annulment is in the best interests of the incapacitated person. The bill provides that the guardian may not delegate the power to request permission to file a petition for dissolution, separation, or annulment and requires the guardian to: (1) be named in a petition for dissolution of marriage, legal separation, or annulment; and (2) file, with the petition, a copy of the court order granting the request for permission to file the petition. An amendment was presented by Rep. Washburne as trailer language to SB 36 allowing a guardian to bring an enforcement proceeding against a third party who fails to comply with the guardian’s written demand or instruction, and this amendment was adopted by consent. A representative from the Probate and Property Section of the Indiana State Bar Association testified in support of the bill. The amended bill passed 6-1.
The Senate Health and Provider Services Committee heard HB 1110, authored by Rep. Mahan and sponsored by Sen. Holdman, on the Department of Child Services. The bill was held for an amendment to provide the delinquency statutes would have the same definition of “relative” as used in the CHINS statutes and other changes. The definition of “relative” was broadened to include other individuals with whom the child has an established and significant relationship in addition to the existing list of relatives. The amendment was adopted by consent and the amended bill passed 7-0.[Permalink]
The House Judiciary Committee heard SB 60, sponsored by Rep. Steuerwald and authored by Sen. Boots, urging the legislative council to assign the topic of the representation of judges in mandate of funds litigation and payment of attorney’s fees in judicial mandate actions to an interim study committee. The Association of Indiana Counties testified in favor of the bill. The bill passed 7-0.
The House Courts and Criminal Code Committee heard SB 160, sponsored by Rep. T. Brown and Rep. Goodin, allowing the appointment of magistrates only when authorized by statute. Rep. McMillin presented the bill for Senate author Luke Kenley. The bill passed 9-0.
The House Courts and Criminal Code Committee heard Sen. R. Michael Young’s SB 235, the Marion County mental health pilot project bill, sponsored by Rep. Steuerwald and Rep. Frizzell. This bill requires community corrections programs to use evidence-based services, programs, and practices that reduce the risk for recidivism. It also permits the community corrections board to coordinate or operate certain programs. This bill establishes standards for the award of certain grants by the Department of Correction (“DOC), requires DOC to consult with the Judicial Conference and the Division of Mental Health and Addiction (“DMHA”) before awarding grants, defines “mental health and addiction forensic treatment services”, establishes eligibility and treatment criteria, and creates the mental health and addiction forensic treatment services account to fund mental health and addiction forensic treatment services. It removes the requirement that the budget committee must approve the distribution of funds appropriated to the Judicial Conference to assist probation departments, specifies the purposes for which these funds may be used, and requires the Judicial Conference to develop a plan to establish application procedures and funding requirements for courts seeking assistance. It also requires the Judicial Conference to consult with the DOC and DMHA before awarding financial assistance, and requires any person providing mental health and substance use treatment services be certified by the DMHA. Additionally, this bill establishes a three-year pilot project in Marion County to reduce recidivism by providing mental health and forensic treatment services. After a number of witnesses testified in support, and a technical amendment was adopted by consent, the amended bill passed 9-0.
The Senate Judiciary Committee heard HB 1347 sponsored by Sen. Steele regarding circuit court clerk administrative matters. Author Rep. Mayfield explained that the bill is intended to increase efficiency and flexibility in the clerk’s office by authorizing, among other things, the retention of certain records electronically. The bill also limits the costs to courts for certified mail service to the initial mailing of a document and specifies that any subsequent certified mailings are the financial responsibility of the requesting party. Sen. Steele offered two amendments adopted by committee consent. The first amendment establishes that the circuit court clerk is the official keeper of the circuit court judgment docket, specifies that the judgment docket may not include criminal convictions, infractions or ordinances with limited exception and authorizes the judgment docket to be maintained electronically. This amendment also specifies that a judgment debtor must apply to the court that rendered the judgment to suspend a garnishment order. The second amendment refers the study of small claims administration and actions to the legislative council to assign to an appropriate study committee and makes changes to garnishment actions (language from SB 366). Several clerks and the Association of Indiana Counties testified in support of the bill. The amended bill passed 7-0.[Permalink]
The Senate Appropriations Committee heard HB 1279 concerning various motor vehicle issues authored by Rep. McMillin and sponsored by Sen. R. Young. Rep. McMillin explained that this legislation is intended to clarify license suspension provisions in Title 9 and to give discretion to judges to permit specialized driving licenses. The bill makes various other changes to motor vehicle laws. The bill passed 11-0.[Permalink]
This is the seventh weekly installment of the Legislative Update for the 2014 legislative session. If you are interested in reading the text of any bill introduced this session, you may find the bill information at the link below:
This week the Senate and House committees heard the following bills of interest to the judiciary:[Permalink]
The Senate Judiciary Committee heard HB 1369, concerning garnishment of state tax refunds, authored by Rep. Cox and sponsored by Sen. Steele and Sen. Broden. This legislation creates a new mechanism for collecting valid judgments by creating efficiency between courts and the Department of Revenue, and a process for garnishment of wages to collect tax judgments. According to the author this will decrease post-judgment costs and reduce caseloads. The bill permits creditors to file a writ of garnishment with the court, which is served on the debtor. Debtors have 21 days to object. If the debtor does not object or the court does not rule on the debtor’s objection, the court finalizes judgment and garnishment proceeds after 21 days. The bill also provides that these garnishments in priority are secondary to other obligations like child support. A representative of the creditors bar testified that this is modeled after Michigan law. The bill passed 7-1.[Permalink]
The House Courts and Criminal Code Committee heard SB 52, sponsored by Rep. Eberhart and authored by Sen. Steele, on criminal penalties and DNR. This bill makes the penalty for violating certain statutes in Indiana Code Title 14 (natural and cultural resources) an infraction instead of a misdemeanor. The bill was amended by consent to clean-up some issues with penalties and remove civil penalties for the mining industry. Indiana Wildlife Federation and Indiana Conservation Officers Organization testified in opposition to the bill and recommended it be sent to the summer study committee. Nature Conservancy and Hoosier Environmental Council also expressed concerns about the bill. The Indiana Public Defender Council testified in favor of the bill. The bill passed 9-0.
The House Courts and Criminal Code Committee heard SB 88, sponsored by Rep. Bacon and authored by Sen. Alting, on mental health witnesses in criminal cases. This bill specifies who may be appointed as a mental health expert in a criminal case. Two amendments were presented, and held. Henry Circuit Court Judge Mary Willis testified on behalf of the Indiana Judges Association in favor of the bill. The Indiana Psychiatric Society spoke in opposition to the bill. Indiana Prosecuting Attorneys Council and the Indiana Public Defenders Council testified in support of the bill if amended. The bill was held for further amendment.
The House Judiciary Committee heard SB 101 concerning agricultural operations and trespass authored by Sen. Holdman and sponsored by Rep. Steuerwald. The bill provides that regular criminal mischief would be made an A misdemeanor if the damage to property is between $750 and $50,000. The bill also makes institutional criminal mischief (1) include damage to agricultural property, (2) a Level 6 felony if the damage to agricultural property was between $750 and $50,000, and (3) a Level 5 felony if the damage to agricultural property exceeds $50,000. Among those testifying on this bill was the Indiana State Department of Agriculture, the Indiana Soybean Alliance, the Indiana Corn Grower Association, and the Indiana Prosecuting. Attorneys Council. After lengthy discussion, the bill passed 8-4.
The House Courts and Criminal Code Committee heard Sen. R. Michael Young’s SB 171, sponsored by Rep. McMillin and Rep. Steuerwald, on community supervision. This bill requires a community corrections program to develop a plan of collaboration with the county probation department as a condition of receiving financial assistance from the Department of Correction. This bill also permits the commissioner of the Department of Correction to award additional financial aid to counties with an approved community supervision collaboration plan. The Indiana Prosecuting Attorneys Council and the Indiana Public Defenders Council testified in support of the bill. The bill passed 9-0.
The Senate Judiciary Committee heard HB 1009, concerning search warrants and privacy, authored by Rep. Koch and sponsored by Senator Steele. This legislation contains several provisions concerning GPS tracking and unmanned aerial vehicles. It also prohibits unattended surveillance cameras to be on private property without consent of landowners or tenant consent. It provides an exception for exigent circumstances for law enforcement to use unmanned aerial vehicles in certain circumstances. It also provides certain procedures for the issuance of search warrants concerning electronic communications. The bill also urges the legislative council to assign to a summer study committee the topic of digital privacy, including: (1) issues related to searches of electronic devices, compelling the disclosure of electronic user data, the collection and use of geolocation information, and the collection and use of biometric information by government agencies; and (2) any other issue concerning digital privacy and related subjects. The Indiana Prosecuting Attorneys Council requested an amendment that deals with the exigent circumstance exception, and providing a 72-hour requirement for obtaining a court order when that exception is invoked. A second amendment was introduced that provides several technical changes, as well as permitting electronic signatures for procedures related to the issuance of search warrants. Both amendments were adopted by consent. The Hoosier State Press Association testified supporting the bill explaining it offers protection to news media from law enforcement going after records of press members to identify news sources. Testimony was heard against the bill by a private investigator who wanted access to private property, and for the bill by a nursing home representative supporting restrictions against cameras being permitted on private property. The amended bill passed 8-0.
The Senate Corrections and Criminal Law Committee heard HB 1140, sponsored by Sen. Tomes, Sen. M. Young, and Sen. Randolph, on parole. House Author Rep. Mahan explained that under current law a parolee who is charged with a new felony must have the parole revoked. The bill would require parole revocation only if the new felony is Level 1 or 2 and would confer discretion on the parole board to revoke if the new felony is Level 3, 4, 5, or 6. A technical amendment [changing “parole agent” to “parole officer”] was adopted by consent and the bill passed as amended 9-0.
The Senate Corrections and Criminal Law Committee heard HB 1269, sponsored by Sen. Steele, Sen. M. Young, and Sen. Randolph, the HEA 1006-2013 follow-up bill. Before House Author Rep. Steuerwald presented the bill, Amendment #3 was adopted by consent to make a change to its provision on the commitment to community corrections chapter, IC 35-38-2.6 (substituting “a felony whenever any part of the sentence may not be suspended” to replace “suspendible” in 35-38-2.6-1(a)’s statement that the chapter applies to such a felony) and to reinsert prescription defense language in the methamphetamine possession offense (apparently there is one variety of methamphetamine which is prescribed, for weight loss, so that the defense language needs to be continued). Rep. Steuerwald explained that the bill specifies that HEA 1006-2013 has no application to crimes committed before July 1, 2014. It also specifies that the General Assembly “does not intend that the doctrine of amelioration” “to apply” to any part of HEA 1006-2013. After discussion about the nature of the amelioration doctrine and this first legislative express statement of intent that it not apply, the bill passed, as amended, 10-0.
The Senate Corrections and Criminal Law Committee heard HB 1384, sponsored by Sen. Waltz and Sen. Randolph, on downloading of cellular telephone information by police. The bill would prohibit police from searching the cellphone of a person stopped for texting or for other infractions or ordinance violations without the owner’s consent unless the police have probable cause to believe the phone was used in the commission of a crime, or a search of the phone is authorized by warrant, or the search is “otherwise authorized by law.” House author Rep. Speedy presented the bill. He was asked why this bill was necessary, as the protections it would confer appear to already be applicable as part of Fourth Amendment and Indiana Constitution caselaw; he responded that it would be “useful” for law enforcement officers and the public to have the protections placed in statute. The bill passed 10-0.[Permalink]
The House Judiciary Committee heard SB 27 concerning petitions for adoptions authored by Sen. Zakas and sponsored by Rep. Richardson. This bill does not permit (1) the adoption of a child while a termination of parental rights appeal is pending, and (2) an adoption if the time period after a court has ruled on the termination case and the time in which to file an appeal has not elapsed, or an appellate court is considering a motion to transfer or certiorari. The bill also makes certain procedural requirements when an adoption is pending for a child subject to a custody or parenting time action. The Committee adopted an amendment that removed the procedural requirements when an adoption is pending for a child subject to a custody or parenting time action in the Senate version and provided the ability for a person who had custody or parenting time with a child before the temporary custody order was issued to petition the court to suspend, modify, or revoke the temporary custody order. Upon receiving this petition, the court shall hold a hearing on the matter and may suspend, modify, or revoke the temporary custody order if it is in the best interest of the child. The amendment also provides that the biological father of the child is not required to consent to the adoption if the father had knowledge of the pregnancy and the father abandoned the birth mother during the pregnancy without justifiable cause. An adoption attorney testified on this bill and explained why these amendments were being proposed. The bill passed as amended 9-0.
The Senate Health and Provider Services Committee heard HB 1110, authored by Rep. Mahan and sponsored by Sen. Holdman, on the Department of Child Services. This bill makes various changes to provisions concerning child welfare, including: (1) the contents of notices sent out by the director of the Department of Natural Resources to individuals who are delinquent in paying child support; (2) the definition of “relative” for purposes of provisions concerning residential child care, collaborative care, and the placement of children who are children in need of services; (3) the issuance and implementation of income withholding orders; (4) information reviewed by the residential placement committee; (5) the disclosure of reports and other materials concerning investigations and reports of children who are or are alleged to be children in need of services and child fatalities or near fatalities; and (6) the placement of children who are or alleged to be children in need of services. This bill also makes a technical correction and repeals a provision concerning foster care licenses. An amendment was adopted by consent that expands the definition of “relative” used for purposes of dealing with dispositional hearings and residential care to also be used for pre-dispositional reports and dispositional decrees. IARCAA, an association of children and family services, testified in favor of the bill. The Committee held the bill for further amendment.[Permalink]