This is the thirteenth 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.  As a reminder, the last day for third readings in the House and Senate is Wednesday, April 15^th.

 

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.

The House Financial Institutions Committee heard SB 492, sponsored by Rep. Bardon and authored by Sen. Tallian, concerning consumer practices and residential mortgage foreclosure.  An amendment, adopted by consent, replaced most of the bill’s original language and includes several new provisions. The bill passed, as amended, 10-0.

As amended, the bill contains provisions on gift card, foreclosure consultants’ record retention, engaging in real estate or mortgage transactions without a license, and other licensing matters. 

The amended bill also establishes that a violation of the statutes governing: (1) credit service organizations; and (2) mortgage rescue protection fraud; by a person licensed or required to be licensed as a real estate salesperson or broker is a violation of the statute governing the regulation of real estate salespersons and brokers and is subject to certain specified enforcement procedures and sanctions.  

The bill also provides that the electronic system to be established by the department of insurance not later than September 1, 2009, for the collection and storage of certain information concerning persons participating in or assisting with single family residential mortgage transactions must include the names of the buyer and the seller in a first lien purchase money mortgage transaction.

With respect to foreclosure filings, the bill establishes the following: (1) the lender must send the borrower in default a pre-suit notice meeting certain requirements, (2) when the foreclosure complaint is filed the lender must send the borrower notice of the right to conduct a settlement conference, (3) if a settlement conference is conducted, the lender must have someone at the conference with representative authority, (4) the court must be informed if an agreement was reached at a settlement conference, and (5) if parties participate in a settlement conference it satisfies any local rule requiring mediation or another form of alternative dispute resolution.

 

The Senate Corrections, Criminal, and Civil Matters Committee heard additional testimony on HB 1167 on limitations on asbestos claims.  Representatives of business interests predicted significant increases in asbestos litigation and liability if a proposed amendment to the bill purportedly aimed at limiting its changes to asbestos manufacturers is adopted.  Witnesses feared that retail sellers and contractors would be included within the proposed limitations changes for entities which “sold” asbestos.  Testimony was also received from an attorney who represents persons suffering from illnesses allegedly contracted from asbestos exposure.  The Committee held the bill until later in the week.  When the Committee met again they adopted an amendment that deleted the contents of the bill and inserted language to urge the Legislative Council to assign this topic to an interim or statutory study committee.  The bill passed as amended 9-0.

The House Courts and Criminal Code Committee heard SB 34 on assisting a criminal.  An amendment was offered repealing IC 35-38-1-10.7 on HIV testing and replacing it with a statute mandating testing for HIV, other sexually transmitted diseases and tuberculosis.  The amendment provides that, if requested by the victim of a sex offense, the HIV and STD testing must be administered to the person accused of the offense within 48 hours of the date criminal charges are filed.  The test results must be promptly provided to the victim.  According to Steve Johnson of the Prosecuting Attorneys Council, this amendment was requested by the Criminal Justice Institute, to comply with a federal government mandate and avoid a 5% reduction in federal grant funds (Office on Violence Against Women through its Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program).  The amendment was adopted by the Committee after it added a provision that the test results cannot be admitted as evidence in a criminal proceeding. 

An amendment to provide for a Marion County redocketing fee of $50, with a hardship exception, in order to upgrade compensation for six commissioners to magistrate levels was rejected.  The proposal was described as a reduced version of the authorization for 20 Marion County magistrates which had been sought in HB 1632.  The Committee agreed that the redocketing fee and commissioner upgrade proposal should be referred to a summer study committee. 

An amendment was also proposed to change the IC 35-50-2-8 habitual criminal offender statute to exempt certain defendants from habitual criminal offender liability if they are convicted of a drug offense and have no more than one prior conviction for certain specified drug offenses.  The amendment adds dealing in methamphetamine to the list of specified prior drug offenses for which the defendant can have no more than a single conviction.  Steve Johnson explained that when dealing with methamphetamine was made into a separate offense by legislation last year, the new methamphetamine offense had inadvertently not been added to the list of prior drug offenses in the habitual offender exemption provisions.  The Committee adopted this amendment.  The amended bill passed 10-0.

 

The Senate Corrections, Criminal, and Civil Matters Committee passed SR 61, which directs the interim committee on sentencing and policy study to study the child solicitation offense, the habitual offender amendment statute, the interference with custody offense, and the non-support of a dependent offense as each was proposed to have been amended this session by SB 48, SB 276, SB 272, and SB 277, respectively.

The House Public Policy Committee continued its hearing on SB 280 concerning adoption, which streamlines the adoption process in the areas of post-adoption contact and exchange of information for older adoptees.  The Committee adopted an amendment providing that the mother cannot consent to voluntary termination of parental rights before birth of the child, consistent with the adoption code.  The bill passed as amended.

 

The House Public Policy Committee passed SB 303 concerning adoption records, which specifies that adoption records must be kept for 99 years and restores the state subsidy for hard-to-place children ages 2-18.

 

The Senate Appropriations Committee reviewed HB 1602, establishing a Department of Child Services (DCS) Ombudsman Office.   Sen. Kenley, Chair, expressed concerns about the structure of the office and suggested that the DCS Regional Service Councils be used to address problems with DCS since advocates are already on them.  Rep. Brown stated the ombudsman is needed because children in care of DCS have died, other agencies (i.e. DOC) have ombudsman, and children under state control need every effort to protect them.  Sen. Broden stated the ombudsman’s office could address community skepticism and provide an independent look at DCS.  James Payne, Director of DCS, reiterated the department’s position that they were not opposed to the ombudsman and supported the language of the present bill.  He stated that the DOC ombudsman was funded with $100,000.  He suggested funding the DCS ombudsman at $150,000, with the provision the ombudsman report next year on the number of complaints filed and investigated to justify whether additional resources were needed.  A local attorney testified that independence is the most important function of a DCS ombudsman, and stated the governor should not appoint the ombudsman suggesting that a board including the governor, members of the general assembly and others handle this task.  Cathy Williams, on behalf of the Children’s Coalition, pointed out the legislation permits the Ombudsman to resolve complaints against the DCS therefore potentially save the state money by avoiding litigation.  The bill was held.         

 

The Senate Health and Provider Services Committee again considered HB 1681 on foster care matters.  Sen. Dillon introduced an amendment requiring the Department of Child Services to notify foster care recipients of grants and other educational support opportunities when appropriate.  The amendment also requires the Commission on Higher Education and SASSI to determine how this program will be administered.  The Indiana healthy check-up plan section was removed from the bill as redundant to existing law on plan eligibility.  The bill passed as amended 7-0.

The Senate Judiciary Committee heard HB 1363 concerning waiver of certain court fees and court costs.  Rep. VanHaaften explained that the bill permits the clerk to waive the required fees and court costs for a person bringing a civil action or petition for guardianship if the person is represented by an attorney employed by a legal aid program or serving on a pro bono basis and the attorney files an affidavit requesting waiver of fees.  The bill also allows for judicial review and modification of indigency findings.  The Executive Director of Indiana Legal Services, the Indiana State Bar Association, and the Clerks Association testified in favor of the bill.  The Committee adopted an amendment to change the language that the clerk “may waive” to “shall waive” the payment of required fees under this bill.  The bill passed as amended 10-0.

 

The Senate Judiciary Committee continued its hearing of HB 1491 on St. Joseph superior court judges.  The Committee adopted an amendment to create a Sixth District of the Indiana Court of Appeals.  The Sixth District would constitute the entire state and consist of one judge from each of the geographical districts.  The Judicial Nominating Commission shall provide a list of three candidates for each of the three judgeships to the Governor before November 1, 2010 and the Governor shall appoint the three judges before January 1, 2011.  Representatives from the St. Joseph County Bar Association, Judge John Pera, Lake Superior Court, and the Indiana State Bar Association all testified in opposition to the part of the bill that removed merit selection of judges in St. Joseph County.  After Committee discussion, the bill was passed as amended by a vote of 6-5.

The House Roads and Transportation Committee amended and passed SB 16 concerning learner’s permits and graduate licenses last week by a vote of 10-0.  The bill increases the minimum age for learner’s permits and issuance of probationary operator’s licenses, prohibits a driver under 18 years old from using telecommunication devices while driving, revises limitations on probationary operators, requires the State Board of Education and the Criminal Justice Institute to adopt rules regarding driver education, makes the holders of probationary license ineligible for pretrial diversion or deferral for certain offenses involving motor vehicles, and creates an interim study committee on driver education.  This bill was recommitted to House Ways and Means, which heard the bill this week and passed the bill 24-0.

 

The House Roads and Transportation Committee heard SB 249 concerning federal regulation of commercial driver’s license.  The Committee adopted a lengthy amendment, including provisions on the operation of mini-trucks and limiting liability relating to the operation of off-road vehicles under certain circumstances.  The bill passed 11-0.

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The Legislative Update is a weekly update of the activities of the Indiana General Assembly and a publication of the Indiana Judicial Center.