General Information

April 3, 2009 | Category: General

This is the twelfth weekly installment of the Legislative Update for the 2009 legislative session.  As in the past, the Indiana Judicial Center will report on matters of interest to the judiciary.  Below are the summaries of bills of interest heard this week in committee.

 

If you are interested in reading the text of any bill introduced this session, you may find bill information on Access Indiana at: http://www.in.gov/apps/lsa/session/billwatch/billinfo.

Civil Law

April 3, 2009 | Category: Civil

The House Judiciary Committee heard SB 225 concerning foreclosure and tenants.  Rep. Day presented the bill and discussed a proposed amendment.  He also provided a copy of a letter from Judge David Dreyer discussing the procedures he uses when handling writ of assistance cases.  The Committee amended the bill to require initial notice to the tenants within ten days of the filing of the complaint, require a plaintiff who obtains a judgment of foreclosure to honor the terms of the residential rental agreement and prohibit eviction of tenants for 90 days unless there is cause, and sets forth tenant rights to terminate the rental agreement.  The amendment also provides that with residential units, a tenant may not be evicted for one year after the date of the judgment unless the landlord or owner sends a notice of eviction at least 30 days before the date of eviction or the rental agreement has expired, and if a landlord or owner seeks an order from a court to evict they must provide the court with a copy of the notice to the tenant.  Those that spoke in opposition to the bill raised concerns about landlords following through with the notice requirements, the impact on commercial real estate, and the right of termination by the tenant.  The bill passed as amended 5-3.

 

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1167 on actions based on exposure to hazardous substances and asbestos.  The bill addresses statute of limitations periods for such actions.  Testimony was received from an attorney who represents plaintiffs in asbestos litigation, from persons diagnosed with illnesses which may have been caused by asbestos, and from a physician who treats persons suffering from diseases asbestos can cause.  An amendment was offered and the Committee decided to hold the bill for further consideration.

Criminal Law

April 3, 2009 | Category: Criminal

The House Ways and Means Committee passed SB 21 concerning theft of metal by a vote of 21-3.

 

The House Judiciary Committee continued discussing SB 238 concerning crimes against animals.  The Committee discussed and adopted an amendment incorporating animal cruelty language from a number of bills introduced this session, but would not include any language relating to puppy mills.  As amended, the bill permits a court or the parole board to prohibit a person from owning, harboring, or training an animal as a condition of bail or parole, amends the definition of neglect of an animal to include failure to provide reasonable medical care or restraining the animal in a manner that endangers the animal’s health or life, expands the definition of torturing an animal by poisoning to all vertebrate animals, makes abandoning or neglecting an animal a class A misdemeanor or a class D felony if a person has a prior conviction, and makes knowingly or intentionally killing a domestic animal without the consent of the owner a class D felony.  The bill passed as amended 8-1.

 

The House Public Policy Committee heard SB 252 on operating while intoxicated.  Sen. Wyss, one of the Senate authors, explained that the bill establishes a blood serum alcohol concentration conversion ratio for the operating while intoxicated statutes.  He stated that the additional alcohol concentration equivalent is necessary because hospitals routinely use blood serum to check alcohol concentration.  Steve Johnson of the Prosecuting Attorneys Council testified in support of the bill.  He said that expert testimony is currently necessary when blood serum alcohol concentrations are used in drunk-driving trials.    According to Mr. Johnson, the bill would eliminate the need for the expensive expert testimony but would not lead to automatic convictions.  A defense attorney testified in opposition to the bill, stating that hospital procedures are lax when they test blood serum and that it makes a difference when the test is not done forensically.  Larry Landis of the Public Defender Council spoke in opposition to the bill suggesting that the bill be sent to a study committee.  The Committee will vote on the bill next week.

 

The House Judiciary Committee heard SB 576 concerning pawnbrokers, presented by Sen. Taylor.  This bill requires a pawnbroker to immediately return a stolen item to an individual who provides the pawnbroker with specified documentation establishing the item was stolen and belongs to the individual.  The bill also permits the pawnbroker to file a cause of action against the person who pledged the item.  The bill passes 7-0.

 

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1468 on animal cruelty and commercial dog breeder regulation.  An amendment was offered and adopted by consent, which among other matters would adopt the federal USDA standards as statewide standards for dog breeding operations.  Extensive testimony was heard in favor of the bill, as enacted by the House and as proposed to be amended in the Committee, from dog breeders, shelter operators, and the Attorney General’s office.  Extensive testimony was also heard from shelter operators, veterinary medicine professionals, and others in favor of the unamended bill and in opposition to the amendment’s use of the USDA standards, which the witnesses asserted do not offer adequate protection.  The bill passed as amended 8-0.

Family & Juvenile Law

April 3, 2009 | Category: Family/Juvenile

The House Public Policy Committee heard SB 280 on adoption.  Sen. Lubbers explained that the bill streamlines the adoption process in the areas of post-adoption contact and exchange of information for older adoptees.  The bill also makes technical clarifications.  Kate Creason from Indiana Adoption Agencies United and the Indiana Children’s Bureau testified that the agencies have concerns about the bill’s notice provisions but generally support the bill.  Attorney Steve Kirsch testified in support of the bill, stating that the most substantive change made by the bill is the creation of a paternity index.  The Committee will vote on the bill next week.

 

The House Public Policy Committee heard SB 303 on adoption records.  Sen. Simpson explained that the bill does two things:  it specifies that adoption records must be kept for 99 years and restores the state subsidy for hard-to-place children ages 2-18.  The Indiana Coalition of Adoption Agencies and IARCA testified in support of the bill, as well as members of the public.  The Committee will vote on the bill next week.

 

The Senate Judiciary Committee heard HB 1511 permitting a court to order joint custody in paternity cases.  Rep. GiaQuinta presented the bill and explained that it contains factors for the court to consider when making this determination similar to those in dissolution cases.  The Family Law Section of the Indiana State Bar Association testified in support of this bill.  An amendment was accepted establishing a rebuttable presumption in paternity cases that parenting time with a noncustodial parent convicted of child molesting or child exploitation must be supervised.  The legislation passed as amended 9-1.

 

HB 1602 creating a Department of Child Services (DCS) Ombudsman was heard by the Senate Judiciary Committee.  A nine page amendment rewriting the bill was introduced which (1) permits the governor to appoint the ombudsman, who reports to the commissioner of the Department of Administration; (2) requires the ombudsman to be an attorney or a social worker with a master’s degree; (3) permits the DCS Ombudsman to receive, investigate and attempt to resolve a complaint against DCS, occurring on or after January 11, 2005, alleging that DCS failed to follow a specific law, rule or DCS written policy and therefore failed to protect the health or safety of any child; (4) permits the DCS Ombudsman to examine policies and procedures and evaluate effectiveness of the child protection system, including the roles of DCS, the court, the medical community, service providers, GAL/CASA and law enforcement; (5) utilizes the local child protection team to assist the ombudsman; (6) prohibits the ombudsman from investigating a complaint from a DCS employee about DCS employment, or a matter pending in administrative review at DCS; (7) gives immunity to a state or local government entity that gives records to ombudsman unless the release or disclosure is gross negligence or wanton misconduct; (8) requires the ombudsman to prepare an annual report for distribution to the governor, legislative council, department of administration, the DCS and placed on the Internet; (9) provides that interference with the duties of the ombudsman is a Class A misdemeanor; and (10) provides the juvenile court and DCS shall provide access to all records of the DCS and juvenile court, excluding adoption records and immediate access without prior notice to a facility in which the child is placed or is receiving services funded by DCS.  Another amendment accepted by the Committee from the Hoosier Press Association made only records in an individual case investigated by the ombudsman confidential, but permits public access to the records of the ombudsman generally.  After adopting both these amendments, the bill passed 9-0 and was recommitted to the Senate Appropriations Committee.

Judicial Administration

April 3, 2009 | Category: Administration

The Public Health Committee heard SB 96 on the licensure of addiction counselors.  Wade Lowhorn, Deputy Director of the Professional Licensing Agency, introduced Amendment #7 making technical corrections and ensuring conformance with existing licensing procedures.  This amendment includes language limiting the exception to the licensure requirement applicable to certain court staff and probation officers in the performance of assigned job duties.  Amendment #6 was introduced by Rep. T. Brown referring the issue of licensing paramedics to the Health Finance Commission for study.  Both amendments were adopted by consent.  Testimony was taken both in support of and opposition to the bill.  Those in opposition primarily object to the fact that some of the current addictions counselors will not be “grandfathered” into the clinical addiction licensure, which would eliminate their ability to conduct clinical assessments.  Advance America, represented by Eric Miller, also testified in opposition to the bill stating that the current language will hinder clergy and mission staff from providing needed services.  The bill passed as amended 11-1.

 

The Senate Judiciary Committee heard HB 1491 concerning St. Joseph superior court judges.  The bill replaces the merit retention system for St. Joseph superior court judges with a nonpartisan election process.  Rep. Dvorak presented the bill to the Committee.  The Indiana Fraternal Order of Police, on behalf of the South Bend local organization, testified in favor of this legislation.  The St. Joseph County Chamber of Commerce, the League of Women Voters of Indiana, the Indiana State Bar Association, the President of the St. Joseph County Bar Association, and Judge Michael Scopelitis, St. Joseph Superior Court, testified in opposition to the bill.  An amendment was offered by Sen. Bray that would expand merit selection in Lake County to include the Lake Superior Court County Division.  Rep. Lawson explained that Lake County presented this issue to the Commission on Courts, which recommended this legislation.  The Past President of the Lake County Bar Association, the County Attorney for Lake County, and Judge John Pera, Lake Superior Court, all testified in favor of the merit selection.  In their testimony, they indicated that they did not want changes in the Lake County system to pass at the expense of the St. Joseph County merit retention system, so they requested the Committee reject the amendment containing the Lake County language as well as the bill to change the St. Joseph County system.  The Committee did not take action on the bill or the amendment and will take up the measure next week.  

 

The Senate Judiciary Committee heard HB 1703 concerning interlocal agreements concerning courts.  Rep. Saunders presented the bill which allows cities and towns that have not established a city or town court to enter into interlocal agreements with a city or town that has a court located in the same judicial circuit to hear and dispose of cases that would otherwise come under their jurisdiction.  The bill also provides that a city or town that has not established a court or ordinance violations bureau may enter into a similar agreement.  The bill allows the sums collected by the violations clerk to be accounted for and paid as provided in the interlocal agreement.  Jodie Woods of the Indiana Association of Cities and Towns along with a city court judge spoke in favor of the bill.  Judge Mary Willis, on behalf of the Board of Directors of the Judicial Conference of Indiana, spoke in opposition to the bill sections expanding the jurisdiction of city and town courts, and indicated that sections related to ordinance violation bureaus would accomplish the goals of the proponents.  An amendment was adopted by the Committee which expressly limits the ability to create interlocal agreements to ordinance violations.  The bill passed as amended 8-0.