This is the third 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:[Permalink]
The Senate Judiciary Committee heard Sen. Steel’s SB 2 on proceedings supplemental to execution. This bill provides that a person requesting the mailing of a document by registered or certified mail in a proceeding supplemental shall pay for the mailing. The bill was amended to add that a party must provide a pre-stamped envelope after the initial mailing and to delete that this applies only in proceedings supplemental. The amended bill passed 8-0.
The Senate Judiciary Committee heard SB 38, authored by Sen. Steele and Sen. Delph, on the application of foreign law. This bill provides that a court may not apply, enforce, or grant comity, res judicata, claim preclusion, or issue preclusion to a foreign law, ruling, or judgment if doing so would violate the fundamental liberties, rights, and privileges guaranteed by the U.S. or Indiana Constitution. Additionally, it provides that a provision in a contract or agreement is void and unenforceable if it provides for the choice of foreign laws or of venue or forum that would result in a violation of a fundamental liberty, right, or privilege guaranteed by the U.S. or Indiana. The bill also prohibits a court from granting certain motions if the transfer is likely to affect the constitutional rights of the nonmoving party. It also provides that a court may not require or authorize any court to adjudicate or prohibit a religious organization from adjudicating ecclesiastical matters or determine or interpret the doctrine of a religious organization. An amendment was adopted that clarified the definition of ecclesiastical matters. The amended bill passed 7-3.
The Senate Judiciary Committee heard SB 55, Sen. Steele’s bill on medical malpractice actions that permits a patient to bring an action against a health care provider without submitting the complaint to the Medical Review Board if the amount of the claim is not more than $187,000. Under current law, a patient may bring a direct action only if the amount is not more than $15,000. After much testimony against raising the limit to $187,000 and testimony that the limit should be higher than $187,000, Sen. Taylor made a motion to reduce the amount to $105,000 and the motion failed. A second motion amending the amount to $50,000 made by Sen. Glick passed. The amended bill passed 8-1.
The Senate Judiciary Committee heard SB 354, Sen. Steele’s bill on judgments, providing that a judgment creditor may require a judgment debtor to appear in court to provide information concerning the judgment debtor’s income and assets: (1) at any time, if the judgment debtor’s circumstances have changed; or (2) not more than one time every six months. It also permits a court, after conducting a hearing concerning a judgment debtor’s income and assets, to summarily modify a previously issued order concerning the judgment debtor’s income and assets. An amendment was adopted by consent stating that this does not affect or limit the enforcement of a child support case by a Title IV-D agency or office. The Indiana Creditors’ Bar Association testified in favor of the bill with some suggestions. The amended bill passed 10-0.
The House Courts and Criminal Code Committee heard Rep. Richardson’s HB 1141 pertaining to judgment dockets. This bill was prepared at the request of the Supreme Court Records Management Committee to clarify changes made last session to the judgment docket. The bill specifies that the clerk of the circuit court is the official keeper of the judgment docket and shall keep the judgment docket for the circuit court and any superior court or probate court served by the circuit court clerk. The bill further clarifies that the judgment docket may not contain judgments where the state, county, or other governmental entity is the sole creditor except for judgments won by the state for unpaid taxes or an entry required by statute. The bill passed 11-0.[Permalink]
The Senate Corrections and Criminal Law Committee heard SB 94, Sen. Crider’s bill on the statute of limitations for rape. Sen. Crider explained that the bill would allow the state to bring rape charges otherwise time-barred if the charges are filed within five years of the time that (1) the state first discovers DNA evidence sufficient to charge the offender or, (2) a person confesses to the rape. The bill also contained a provision stopping the running of the five year period until the rape was reported to a law enforcement officer. This latter provision was removed, in an amendment by consent, when Committee members agreed that it could permit an extensive delay after a confession was known to have been obtained due to unwillingness of the one with knowledge of the confession to come forward. The bill passed as amended 10-0.
The Senate Corrections and Criminal Law Committee heard SB 175, Sen. Young’s bill establishing uniform terminology for sentence credit time. Sen. Young explained that the bill would not change the law but would clarify terminology by enacting the following definitions:
(1) “accrued time” would mean “the amount of time that a person is imprisoned or confined”;
(2) “educational credit” would “mean a reduction in a person’s term of imprisonment or confinement awarded for participation in an educational, vocational, rehabilitative, or other program”;
(3) “good time credit” would mean “a reduction in a person’s term of imprisonment or confinement awarded for the person’s good behavior while imprisoned or confined”; and
(4) “credit time” would mean “the sum of a person’s accrued time, good time credit, and educational credit.”
A representative of the Monroe County Probation Department asked if the bill could be amended to clarify that persons would receive “accrued” and “good time credit” for home detention as a condition of pretrial release. The author responded that the bill is intended just to clarify terminology, not to address substantive issues of when sentence credits are earned. The bill passed 10-0.
The Senate Corrections and Criminal Law Committee heard SB 212, Sen. Miller’s bill on inmates and Medicaid. The bill authorizes the Department of Correction to act as an inmate’s representative for Medicaid and to authorize a sheriff to act as Medicaid representative for persons detained in the jail pending trial. Testimony was received about the amounts the State and counties will save on medical care by having incarcerated or detained individuals receive Medicaid assistance. The bill was amended to clarify that a DOC-represented individual must be either serving a sentence in a DOC facility or in a county jail. The bill passed as amended 9-0.
The Health and Provider Services Committee heard SB 464 authored by Sen. Patricia Miller on mental health drugs. The bill was prepared at the request of Attorney General Zoeller and the Prescription Drug Abuse Task Force in response to epidemic prescription opioid abuse. The bill provides that addictions counseling, inpatient detoxification services, and long-acting, non-addictive medications may be required to treat opioid or alcohol addiction as a condition of pretrial diversion, parole, probation, community corrections, community transition programming, problem-solving court participation and pre-trial conviction forensic diversion program participation. The bill also adds inpatient detoxification services to Medicaid coverage, and prohibits Medicaid from requiring preauthorization to prescribe long-acting non-addictive medication assistance treatment drugs for the treatment of substance abuse. Medicaid is also required to include coverage for addictive medication assistance treatment drugs coverage for the treatment of substance abuse (and may require prior preauthorization for reimbursement) under this bill. Furthermore, the bill requires Medicaid to preauthorize reimbursement for methadone if the prescription was prescribed for the treatment of pain. The bill extends coverage under the Indiana check-up plan to include long-acting non-addictive medication assistance treatment drugs (without prior authorization) and long-acting addictive medication assistance treatment drugs if prescribed for the purpose of treating substance abuse. The bill authorizes applications for new opioid treatment programs run by a certified community mental health center. Extensive testimony was heard in support of the bill from Attorney General Zoeller and his staff, treating clinicians, recovering addicts, the Hamilton County Drug Court, the Prosecuting Attorneys Council, the Public Defenders Council, the Indiana Judicial Center, and the Indiana Council of Community Mental Health Centers, Inc. The bill was held for further discussion of fiscal matters and possible amendment.[Permalink]
The House Family, Children and Human Affairs Committee heard Rep. Truitt’s HB 1216 concerning missing children and trafficked children. The legislation requires the Indiana State Police to prepare an informational pamphlet for distribution to every law enforcement agency with toll free numbers for the National Center for Missing and Exploited Children, the National Runaway Hotline and other services to provide to families of missing children. The bill also provides a defense to the crime of prostitution if the person is a child and a victim of sex trafficking. Requires law enforcement to contact DCS if a child under age 18 and an alleged victim of sex trafficking is detained. A prosecutor, a representative and a volunteer from the National Runaway Safeline testified in favor of the bill. The Indiana State Police gave information about the runaway problem and answered questions by the committee. The bill passed 12-0.
The House Family, Children and Human Affairs Committee heard Rep. Mahan’s HB 1434 making various juvenile law changes which affect the Department of Child Services and juvenile courts. Representative Mahan introduced the bill, which has five portions:
- requires the Indiana State Police to conduct a record check of local records in addition to the national background check, for service providers;
- requires national background checks for collaborative care host homes;
- repeals the requirement that DCS family case managers be licensed social workers;
- repeals the requirement that the Regional Services Council prepare a local plan for the provision of child protection services;
- makes numerous amendments to the juvenile code to permit Indiana to comply with the recently passed federal, “Preventing Sex Trafficking and Strengthening Families Act.” These changes include
- defines a “Reasonable and prudent parent standard” for determining when a child in foster care can participate in extracurricular, enrichment, cultural and social activities;
- eliminates the term independent living and defining “successful adulthood” for the same purpose;
- directs DCS to provide the child’s medical passport to the child or child’s legal guardian at the close of a CHINS or collaborative care case in certain instances;
- requires an older youth who received foster care to be eligible for placement in collaborative care on the day the child becomes 18 years old, not during the month the child becomes 18 years old;
- permits foster children at least 14 years to select a ‘child representative’ to participate in development of case and transition plans;
- adds to the requirements to the use of permanency option of “another planned permanent living arrangement” to require in both CHINS and Delinquency cases, documentation or testimony from DCS (or testimony only in the case of probation), of the intensive, ongoing and unsuccessful efforts made to return the child to the home, secure a fit and willing relative, or find adoptive families for the child. In addition, the court must make a judicial determination explaining why another planned permanent living arrangement is the best permanency plan for the child and provide compelling reasons why it continues to not be in the best interests of the child to return home or use another permanency option. Testimony must be provided to indicate steps DCS or probation is taking to ensure the child’s foster family or placement is taking to follow the reasonable and prudent parent standard and provide the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities.
A technical amendment was adopted by the Committee. The amended bill passed 12-0.[Permalink]
The Senate Judiciary Committee heard SB 137, Sen. Bray’s bill on magistrates and criminal trials. This bill provides that a magistrate may not preside over a criminal trial or sentencing hearing if the defendant timely requests that the elected circuit court or superior court judge preside. The amendment, adopted by consent, requires that the same magistrate must preside over the trial and the sentencing. The amended bill passed 9-1.
The House Courts and Criminal Code Committee heard HB 1039 authored by Rep. Washburne and Rep. DeLaney on the court staff attorney pilot project. This bill establishes a two-year pilot circuit and superior court assistance project administered by the Indiana Judicial Center to handle complex motions. The bill provides for legal assistance from an attorney, senior judge, or third year law student to trial courts in five counties, to be selected on the basis of specified population levels, to assist with the research and the drafting of judicial orders in response to complex motions. The bill authorizes the litigants in a complex case to request pilot project assistance. The Indiana Judicial Center would be authorized to charge a fee for the assistance when parties request it. Requests for assistance made by judges in the selected counties would not be subject to any fees. Mike McMahon from the Judicial Center testified in support of the bill, pointing out that the pilot could complement efforts under way for study of a “specialty court” as Chief Justice Rush described in her State of the Judiciary message to “bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources.” McMahon said that some extra funding for the Judicial Center may be required for the pilot. A representative from State Farm Insurance also testified in support of the bill. The bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1058, authored by Rep. Washburne and Rep. McNamara, adding a Vanderburgh circuit court magistrate. Lilia Judson, Executive Director of State Court Administratio,n provided background testimony on judicial weighted caseload measures. Judge Felts, Allen Circuit Court, and Judge Pera, Lake Superior Court, testified on behalf of the Indiana Judges Association as to the duties and responsibilities of magistrates in the judicial system. Testimony in support of the bill was heard by Judge Kiely, Vanderburgh Circuit Court, indicating both of the judicial officers of this court are currently operating at almost double capacity. The bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1110, authored by Rep. Stemler and Rep. Steuerwald, adding a Clark circuit court magistrate. Lilia Judson, Executive Director of State Court Administration, provided background testimony on judicial weighted caseload measures. Judge Felts, Allen Circuit Court, and Judge Pera, Lake Superior Court, testified as to the duties and responsibilities of magistrates in the judicial system. Testimony in support of the bill was heard by Judge Carmichael, Clark Circuit Court #4, and Judge Weber, Clark Circuit Court #3, indicating the need for an additional judicial officer based on weighted caseload measures and that by the end of 2015 3 of 4 city courts in Clark County will have closed. The bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1307, authored by Rep. Fine, pertaining to Lake County city and town jurisdiction. The bill raises the limit of the amount in controversy from $3,000 to $6,000 in Lake County city and town courts with concurrent civil jurisdiction with the circuit court. An amendment, adopted by consent, added the Crown Point City Court to the list of city court with concurrent civil jurisdiction with the circuit court. Judge Jeffers of the Crown Point City Court and the Indiana Association of Cities and Towns testified in support of the bill. The amended bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1367, authored by Rep. Ubelhor, adding a Greene County courts magistrate. Lilia Judson, Executive Director of State Court Administration, provided background testimony on judicial weighted caseload measures. Judge Felts, Allen Circuit Court, and Judge Pera, Lake Superior Court, testified on behalf of the Indiana Judges Association as to the duties and responsibilities of magistrates in the judicial system. Judge Martin, Greene Superior Court, and Judge Allen, Greene Circuit Court, testified in support of the bill. The bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1416, authored by Rep. Speedy and Rep. Kirchhofer, authorizing magistrates to perform additional judicial duties. The bill allows magistrates to: (1) approve and accept criminal plea agreements; (2) approve agreed settlements concerning civil matters; and (3) approve decrees of dissolution, settlement agreements, and any other agreements of the parties in domestic relations actions or paternity actions. The bill also continues the conversion of commissioners to magistrates in Marion County by authorizing the appointment of four full-time magistrates after December 31, 2015. Judge Oakes, Marion Superior Court, testified in support of the bill. The bill passed 11-0.[Permalink]
The Senate Judiciary Committee heard SB 5, authored by Sen. Bray, the Uniform Powers of Appointment Act. This bill urges the legislative council to assign to the interim study committee on courts and the judiciary or another appropriate interim study committee the topic of the Uniform Powers of Appointment Act, as approved and recommended by the National Conference of Commissioners on Uniform State Laws. The bill passed 10-0.
The Senate Judiciary Committee heard SB 368, authored by Sen. Waltz, the Uniform Fiduciary Access to Digital Assets Act. This bill enacts the Uniform Fiduciary Access to Digital Assets Act, drafted by the National Conference of Commissioners on Uniform State Laws. It vests fiduciaries with the authority to access, control, or copy digital assets – like emails and Facebook accounts. The Uniform Law Commission spoke in favor of the bill. The bill passed 9-0.[Permalink]
The House Roads and Transportation Committee heard HB 1305 concerning various motor vehicle issues authored by Rep. McMillin. Rep. McMillin explained that this bill was a product of a workgroup of judges, prosecutors, public defenders, and the BMV to refine the provisions of Title 9 impacted by HEA 1279-2014. The Committee adopted some amendments by consent. The amended bill would adjust some of the penalties for reckless driving, address some provisions on possession of multiple licenses/id cards, provide that reproducing counterfeit licenses/permits would constitute a class B misdemeanor, provide that a person can only be suspended one time for the same incident, amend some reporting responsibilities when accidents occur, amend eligibility for specialized driving privileges, amend some OWI provisions, allow a defendant to petition the court to make the HTV determination in advance of the bureau, amend provisions related to individuals with lifetime suspensions and eligibility for specialized driving privileges, amend provisions on habitual substance abuse offender determinations, and make some technical corrections. After supporting testimony from Judge Stephenie LeMay-Luken, Hendricks Superior Court #5, Indiana Prosecuting Attorney’s Council, and the BMV, the amended bill passed 12-0.[Permalink]
This is the second 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:[Permalink]
The House Judiciary Committee heard HB 1011, authored by Rep. Torr, on passenger restraint systems. Rep. Torr introduced this bill explaining that it repeals the current provision that failure to comply with safety belt laws and child passenger restraint system laws does not constitute fault or contributory negligence. The bill also prohibits the admission of evidence of failure to comply with safety belt laws in civil actions to mitigate damages. Rep. Torr explained the intent of the bill is to allow judges to decide whether to admit evidence about an injured party wearing a safety belt at the time of an accident. An attorney with the Indiana Trial Lawyers Association testified against the bill, discussing several public policy concerns about the burden shifting to victims of accidents. Another Indiana Trial Lawyers Association attorney also testified against the bill, noting that mitigation of damages usually occurs after an injury has occurred and that this will establish a new concept permitting mitigating issues to be introduced before the injury is incurred. A representative of the Insurance Institute of Indiana testified supporting the bill, explaining that seatbelt usage nationally is approximately 83%, that the bill is reverting to common law where the judge and jury decide the admissibility of the statutory seatbelt duty, and that the mitigation of damages is consistent with Indiana’s comparative fault scheme. A representative of State Farm Insurance testified in support of the bill to encourage seat belt use. Representatives from the Defense Trial Counsel of Indiana, the Indiana Manufacturers Association, and a local defense attorney also testified in support of the bill. Rep. Torr withdrew the bill to consider whether to do a strip and insert to repeal the mandatory seatbelt law.
The House Judiciary Committee heard HB 1050, authored by Rep. Ober and Rep. McMillin, on actions against a surveyor. Rep. Ober introduced this bill, and explained that it provides that an action to recover damages for a deficiency in a land survey must be brought against the surveyor not later than 10 years after the date of the survey. The bill also sets forth requirements for providing a notice of a survey letter to an adjoining landowner. The bill provides that an action for damages for a survey completed before July 1, 2015, may not be brought against a surveyor unless the action is commenced within 15 years after the date of the survey. A representative from the Indiana Society of Professional Land Surveyors testified supporting the bill, explaining that the language in the bill including the notice to adjoining landowners provides parties an opportunity to timely take action potentially impacting their property and addressed concerns about the effectiveness of the notice by requiring the recording of the survey. The bill passed 12-0.[Permalink]
The Senate Corrections and Criminal Law Committee heard SB 8, Sen. Steele’s bill to amend the death penalty statute, I.C. 35-50-2-9, to add decapitation or attempted decapitation of the victim as a death penalty aggravator. In discussion, Committee members agreed with Sen. Steele that decapitation might possibly be found to not be incorporated in the present death penalty aggravators, although its addition would arguably be as much a clarification as an addition. The bill passed 9-0.
The Senate Corrections and Criminal Law Committee heard SB 37, Sen. Bray’s bill to amend the possession of paraphernalia statute by removing possession of “raw material” as a basis for liability. Several amendments to the bill were presented by Sen. Bray and adopted by consent: (1) “rolling paper” was defined and removed from the paraphernalia definition; (2) the I.C. 35-48-4-3 Class A infraction for possession of paraphernalia without any “knowingly” or “intentionally” requirement was deleted from the statute, so that after the amendment the statute would contain only the Class A misdemeanor of “knowingly” or “intentionally” possessing paraphernalia; and (3) I.C. 16-42-19-18 in the Legend Drug Act was amended to make it a first-offense Level 6 felony, and a second-offense Level 5 felony for a person with intent to violate the Legend Drug chapter or to commit a drug offense in I.C. 35-48-4, to possess a syringe adapted to use either a controlled substance or a legend drug. Sen. Bray said the syringe amendment was prompted by the Dec. 9, 2014 Court of Appeals decision Bookwalter v. State (holding that possession of a syringe intended to inject heroin was not a violation of the Legend Drug Act syringe offense, because heroin is not a legend drug). A representative from the Public Defendesr Council testified in support of the bill, and a representative of the Prosecuting Attorneys Council testified that the Council was neutral on the first two amendments, but was in favor of the third amendment about syringes. The bill passed as amended 9-0.
The Senate Corrections and Criminal Law Committee heard SB 173, Sen. R. Michael Young’s bill to establish a DOC specialized vocational program. Sen. Young explained that the bill would require the DOC to establish a program to train minimum-security offenders in trades such as truck driving, manufacturing, plumbing, heating, and air conditioning. Sen. Young said that the Department of Workforce Development had identified these trades as the ones for which more workers are needed. The program would allow the offenders admitted to it to receive in-the-field training outside DOC facilities.The bill was amended by consent at the request of the DOC to make the program discretionary rather than mandatory. The Committee discussed but rejected a suggestion from the Prosecuting Attorneys Council that standards, such as program ineligibility for anyone convicted of a “crime of violence,” be added to the bill to help define the bill’s provision that persons posing a “security risk” were not eligible for the program. The bill passed as amended 9-1.
The Senate Corrections and Criminal Law Committee heard SB 174, Sen. R. Michael Young’s bill to make the application of the 2014 sentence modification statutory changes retroactive to crimes committed before July 1, 2014. Sen. Young noted that there was disagreement in the criminal justice system about the issue and that several appeals about it are pending. The disagreement was manifested by the testimony of Larry Landis of the Public Defenders Council, who supported the bill and said he had thought last year’s legislation made it applicable to pre-July 1, 2014 crimes, and the testimony of David Powell of the Prosecuting Attorneys Council in opposition to the bill that the Council interpreted last year’s legislation as making the 2014 modification change inapplicable to crimes committed before July 1, 2014. Mr. Powell also urged the Committee to undo the 2014 elimination of the prosecutor’s consent requirement, pointing out that the amended law increases the numbers of modification hearings, at which victims are obliged to appear, sometimes by subpoenas issued by the petitioner. The Floyd County Chief Deputy Prosecutor also testified in opposition to the bill, observing that if a judge schedules a hearing on a modification petition he is obliged to notify the victim and to have the victim appear at the hearing to oppose the modification, all of which is extremely stressful for victims. A crime victim who accompanied the prosecutor testified as to the stress she felt at having to encounter at a modification hearing the person who had violated her. After Committee discussion, Sen. Young said he was amenable to having a provision inserted in the bill on second reading to avoid subpoenas to victims from petitioners. An amendment proposed by Sen. Steele to have the bill take effect on passage was adopted by consent, and the bill passed as amended 9-0.[Permalink]