General Information

January 15, 2010 | Category: General

This is the second weekly installment of the Legislative Update for the 2010 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 the bill information on Access Indiana at: http://www.in.gov/apps/lsa/session/billwatch/billinfo.

Civil Law

January 15, 2010 | Category: Civil

The House Courts and Criminal Code Committee heard HB 1118 regarding nuisance actions by community organizations authored by Rep. Day.  The bill permits a community organization, as defined in statute, to bring actions for nuisances that exist within the boundaries of the community organization without posting a bond, and permits the award of attorney fees, court costs, and reasonable expenses to the prevailing party.  The bill also adds the Attorney General to the list of prosecuting officials under the drug nuisance law and addresses actions regarding unsafe building law actions.  The Executive Director of the Community Development Law Center and the Indiana Association for Community Economic Development testified in support of the bill.  The Indiana Apartment Association and Indiana Association of Realtors raised questions regarding the bill provisions.  The Committee adopted a technical amendment and passed the bill 9-3.

Criminal Law

January 15, 2010 | Category: Criminal

The Senate Corrections, Criminal, and Civil Matters Committee heard Sen. Head’s SB 27, on the habitual offender filing deadline.  The bill was amended permitting a habitual offender charge to be added at any time prior to trial if the addition does not prejudice the substantial rights of the defendant.  Discussion among Committee members, Steve Johnson of the Prosecuting Attorneys Council, and Larry Landis of the Public Defender Council resulted in the decision to remove special provision  for adding habitual offender charges.  The Committee agreed that the statute on amending criminal charges should be changed to allow all substantive amendments, not just those for habitual offender allegations, to be more liberal by abandoning the present requirement they must be made more than 30 days prior to the omnibus date in a felony case.  However, there was no agreement as to an alternative deadline for such amendments.  A motion was made to change the bill to allow substantive amendments of any kind without restriction at any time up to 20 days before trial.  This motion was withdrawn and the bill was passed 8-2 as amended initially, with the understanding that Sen. Head would work with the Prosecuting Attorneys Council and Public Defender Council on a version agreeable to both parties. 

The Senate Corrections, Criminal, and Civil Matters Committee reheard Sen. Paul’s SB 71, pertaining to the unlawful termination of pregnancy (OVWI), which increases the penalty for drunk driving to a C felony if it causes “the termination of another person’s pregnancy.”  The bill also expands the reckless homicide offense to include “recklessly terminat[ing] another person’s pregnancy.”  As a result of the concerns about the bill’s reliance on pregnancy termination, the bill was referred to a subcommittee for redrafting.  The subcommittee recommended that the bill be stripped and amended by inserting the existing “kills a fetus” portion of the involuntary manslaughter offense, IC 35-42-1-8(d), to provide that involuntary manslaughter includes a person “who kills a fetus” while committing or attempting to commit “a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated).”  The amendment was adopted and the amended bill passed 9-0.

The House Courts and Criminal Code Committee heard HB 1163, concerning expungement of records of certain convictions authored by Rep. Tincher.  This bill provides that if post-conviction DNA testing is favorable to a convicted person then the court is required to issue orders to:  prohibit the release of records regarding the person; remove and destroy records  concerning the person by central repositories of criminal history information; remove and destroy records concerning the person held by law enforcement agencies; seal court records created as a result of allegations that the person committed a crime or delinquent act; and notify the Clerk of the Supreme Court to seal any records if an appeal was taken.  The Committee discussed an amendment making the bill effective on passage and with retroactive application.  Rep. Tincher advised the Committee that the Prosecuting Attorneys Council raised concerns about maintaining records and evidence for further investigation in these cases.  The Committee received supporting testimony from two attorneys representing a person exonerated by DNA evidence, the Indiana State Police, and the Indiana Public Defenders Council.  The State Police and Public Defenders Council also raised concerns about maintaining evidence for further investigation in these cases.  The Hoosier State Press Association testified regarding the private entities that gather public data and information that may still be accessible even if the official records are expunged.  The Committee held the bill until next week to work on an amendment regarding the documents and evidence issues.

Family and Juvenile Law

January 15, 2010 | Category: Family/Juvenile

SB 59, pertaining to grandparent and great-grandparent visitation authored by Sen. Steele was heard by the Senate Judiciary Committee.  Sen. Steele explained that grandparents in dissolution and paternity actions currently have visitation rights but no such rights exist if the family is intact.  The Committee adopted Sen. Steele’s amendment making the bill effective upon passage.  Sen. Broden expressed concern about the disproportionate economic resources which may exist between parents and grandparents.  An amendment was adopted to permit, not require, a court to order attorney fees in these cases.  Sen. Holman expressed concern about the potential increase in a court’s caseload as a result of this proposal but no estimate of the caseload increase was available.  He also expressed a reluctance to create this new “right” and has concerns regarding the potential for conflict it might cause.  Ten members of the public testified in support of this bill, all grandparents or great-grandparents.  The bill passed as amended 9-0, with one abstention.  

The Senate Judiciary Committee reheard SB 163, concerning various child support matters.  The first amendment was introduced to prevent the disclaimer of an inheritance up to and including any amounts owed by the obligor on past child support arrearages.  The second amendment prohibits the consideration of a parent’s absence due to active military duty when determining custody or permanently modifying a child custody order.  The last amendment (1) permits law enforcement the discretion to disclose information to DCS when seeking information from a TANF recipient that may assist a child support action; (2) makes an address from the Attorney General’s address confidentiality program available in a child support action for ISETS purposes only; (3) permits certain listed records to be obtained by the child support bureau or prosecutor at no charge including birth, marriage and death records, records of various state agencies, and professional and occupational licenses or permits; and (4) makes bank records available upon subpoenaing the bank or under agreement.  There was no agreement on changing the threshold amount of $1200 for immediate collection of delinquent child support from gambling winnings.  The bill passed as amended 9-1.    

The Senate Corrections, Criminal, and Civil Matters Committee heard Sen. Steele’s SB 178, pertaining to custody and parenting time matters.  The bill provides that upon the execution of a paternity affidavit the mother will  have primary physical custody, the mother and father will have joint legal custody, and the father will have parenting time in accordance with the parenting time guidelines unless another determination is made by a court.  In order to accommodate armed forces personnel serving overseas, the bill was amended to allow the paternity affidavit to be completed within “ten (10) business days after the child’s birth if one of the parents is out of the country.”  Other minor amendments were also adopted.  Concerns about the father’s immediate parenting time rights and joint legal custody status were expressed by the Indiana Coalition against Domestic Violence.  Some Committee members were also concerned about the establishment of joint legal custody solely on the basis of the execution of the affidavit.  These members pointed out that joint custody decisions are made by courts after a showing that the parents are able to work with one another to make joint decisions.  Concerns were also expressed about the additional provisions in the bill which require clear and convincing evidence before parenting time rights can be denied to a noncustodial parent.  The bill passed 5-4.

The Family, Children, and Human Affairs Committee heard HB 1157, authored by Rep. Avery on the establishment of a select joint commission on child welfare services oversight.  The commission is to be comprised of six members from the Senate and six members from the House of Representatives with equal representation from the political parties.  The bill is proposed in response to the recent financial reductions in child services.  The commission is charged with, among other things, determining whether CHINS and delinquent children are receiving the most appropriate care and treatment and receiving reports from the Department of Child Services Ombudsman and responding to trends and patterns from these reports.  Rep. Bell introduced an amendment to clarify the responsibilities of the commission.  Testimony in support of the bill was heard.  The bill was held until the next committee meeting for amendment and vote.

The House Judiciary Committee heard HB 1193, authored by Rep. L. Lawson and dealing with juvenile, education, and law enforcement matters.  Rep. Lawson introduced the bill then asked JaNae Hanger, representing the Indiana State Bar Association (ISBA) and its DMC Commission, to explain the bill.  The primary purposes of this bill are to:  (1) create a law enforcement, school policing, and youth work group to study and make specific recommendations about best practices in this area; (2) require law enforcement working in the schools to have specific training on interacting with juveniles; and (3) require reporting on school arrests and the use of law enforcement within the school corporations.  President of the ISBA, Rod Morgan, also testified in favor of the bill and discussed the Summit on Youth held in August 2009.  Judge Teske from Georgia discussed this initiative from a national perspective and stated this legislation would be the first of its kind for a state.  He stressed that this type of legislation is about school safety, improved academics, and the opportunity to give police more resources to deal with students.  Judge Marilyn Moores from Marion County Superior Court also testified in favor of the bill, as did representatives from academia, police, the Public Defender Council, school superintendents, and the Indiana Sheriff’s Association.  Neil Moore, Executive Director of the Indiana Criminal Justice Institute, also testified in support of the bill concept, but expressed some concerns about his agency’s ability to facilitate this legislation without adequate resources.  Bill amendments were proposed, the most notable of which reduced the size of the workgroup.  The bill passed as amended 10-0, with one abstention.

Judicial Administration

January 15, 2010 | Category: Administration

The Government and Regulatory Reform Committee heard HB 1075, authored by Reps. Stilwell and Bauer regarding public access issues.  Among other things, the bill provides that a court may impose a civil penalty against an agency or individual for knowingly and intentionally carrying out or failing to carry out certain actions in violation of the public access laws.  The Committee adopted a minor amendment and passed the bill as amended 7-0.

The House Judiciary Committee heard HB 1154, pertaining to Marion County magistrates authored by Reps. Pryor, Porter and Richardson.  This bill allows the judges of the Marion Superior Court and Marion Circuit Court to convert 24 commissioners to magistrates if the Executive Committee of the Marion Superior Court imposes and collects an infraction judgment of at least $35 for each traffic violation in Marion County for deposit in the state general fund.  The bill also provides that if the amount collected is not enough to cover the salaries of the magistrates, Marion County will make up the difference.  Rep. Koch offered an amendment to permit Bartholomew County to institute a similar process by imposing and collecting a $20 fee on each traffic violation to support the establishment of a third superior court.  Judge Stephen Heimann testified in support of this amendment, but the author and other members of the Committee responded with concerns that the court should consider adding magistrate instead and that other counties might want to pursue this same mechanism.  The amendment was held.  Judges Heather Welch and Tim Oakes testified in favor of the Marion County proposal, and discussed their efforts to make this proposal fiscally neutral for the State.  There were some timing amendments introduced and the bill passed as amended 11-0.

The House Courts and Criminal Code Committee heard HB 1186 regarding interlocal agreements concerning courts authored by Rep. Saunders.  The bill permits a city or town that does not have a city or town court or an ordinance violations bureau to establish an interlocal agreement with a city, town, or municipal corporation that has a city or town court or ordinance violations bureau to hear and dispose of their ordinance violations.  The Committee received supporting testimony from the Indiana Association of Cities and Towns, the New Castle City Attorney, the Westfield City Attorney, and the New Castle City Court Judge.  The testimony focused on how this bill would assist small communities that lack the resources to hire attorneys to prosecute these cases in the trial courts or establish a city or town court to enforce ordinance violations.  The bill passed 12-0.

Probate Law

January 15, 2010 | Category: Probate

The Senate Judiciary Committee heard SB 65 concerning guardianships presented by Sen. Zakas.  The bill outlines the guardian’s authority to engage in estate planning on behalf of the protected person.  This legislation is in response to In re Guardianship of E.N., 877 N.E.2d 795 (Ind. 2007).  The Committee adopted an amendment to incorporate into this bill the estate administration language from SB 66 with no fiscal impact.  The amendment includes provisions addressing transfers on death, notices to beneficiaries, non-probate transfers, trustees as beneficiaries, and disclaimers.  Both bills were prepared by the Probate Code Study Commission.  A representative from the Indiana State Bar Association testified in support of the bill and amendment and assisted in answering the Committee’s questions.  The bill passed as amended 10-0.

The Senate Judiciary Committee also heard SB 67 concerning trust matters authored by Sen. Zakas.  This bill, prepared by the Probate Code Study Commission, sets forth trust interpretation rules for discretionary trusts, protects certain trust interests from creditor actions, establishes matrimonial trusts, authorizes decanting of a trust, and provides procedures for a trustee to close a trust when a beneficiary cannot be located.  The bill passed 9-1.

The Family, Children, and Human Affairs Committee heard HB 1169, authored by Rep. Avery pertaining to volunteer advocates for incapacitated adults and seniors.  The bill, among other things, establishes a volunteer program for adults with disabilities and requires the volunteer advocate to submit a progress report to the court 30 days after appointment rather than 15 days to permit the program to gather all necessary information and make a thorough report on the individual’s situation.  Testimony was heard in support of the bill.  Voting on the bill was held until the next committee meeting.

Salaries and Benefits

January 15, 2010 | Category: Salaries/Benefits

The Pensions and Labor Committee tabled SB 104, pertaining to prosecuting attorneys retirement fund issues for another week to permit the author the opportunity to further explore potential funding sources to support the proposed amendments.

The Pensions and Labor Committee heard SB 199, authored by Sen. Walker on the state deferred compensation plan.  This bill establishs a $15 default payroll deduction for employees who were employed by the state or a political subdivision after June 30, 2007, and automatically enrolled in the deferred compensation plan in an effort to encourage employees to save their money.  The bill also automatically increases the employee’s payroll deduction on an annual basis by $5 per pay period with a maximum amount deducted per pay period not to exceed $50.  The employee may opt out of the automatic payroll deductions at any time.  The bill passed out of committee 10-1.

The Senate Appropriations Committee heard SB 298, authored by Sen. Kenley on state administration.  Representatives of the Governor’s Office presented the bill, stating that the bill is intended to effectuate cost savings during the current economic situation.  Among other things, the bill establishes the Indiana public retirement system (system) to administer and manage PERF, TRF, the judges’ retirement fund, the prosecuting attorneys retirement fund, and others.   Testimony from the Governor’s Office clarified that the new system board will merge the PERF and TRF boards without changing the composition of those boards.  Additional testimony focused on other cost-savings measures in the bill unrelated to the retirement system.  Sen. Tallian voted against the bill, primarily due to the composition of the retirement system board.  The bill passed out of committee as amended 8-3.