General Information

January 22, 2010 | Category: General

General Information

This is the third weekly installment of the Legislative Update for the 2010 legislative session.  Below are the summaries of bills of interest to the judiciary 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.

State of the Judiciary

Chief Justice Randall T. Shepard gave his annual State of the Judiciary speech on Wednesday, January 20, 2010.  The speech, titled “Dealing With The Recession: A Court System That Won’t Roll Over,” reported on the judiciary’s role in addressing mortgage foreclosures; the increase in CASA volunteers to help abused and neglected children; JTAC’s production of the eCWS system, the protection order registry, and the jury list; the risk assessment project; plain English jury instructions; programs celebrating Abraham Lincoln’s 200th birthday; ICLEO milestones; the judiciary’s response to the budget crisis; and three revenue-positive ideas.

You may access the webcast or text of the speech at: http://www.in.gov/judiciary/supreme/stjud/2010.html.

Civil Law

January 22, 2010 | Category: Civil

The House Judiciary Committee heard HB 1062, authored by Rep. Van Haaften proposing the adoption of the uniform enforcement of foreign judgments act.  A representative of the National Conference of Commissioners on Uniform State Laws testified that this bill will promote uniformity among the states, assist in giving full faith and credit to judgments in other states, and lessen the expense on local courts in enforcing local judgments.  The bill will also promote judicial economy by effectively preventing two trials on the same case.  The bill passed the committee 9-0.

The House Judiciary Committee heard HB 1255, authored by Reps. GiaQuinta and DeLaney concerning proof of collateral source payments.  The bill prohibits a court from admitting into evidence a write-off, discount, or other deduction associated with a collateral source payment in a personal injury or wrongful death action.  Rep. GiaQuinta explained that the bill is a response to Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009).  Mark Scott, a Kokomo attorney, spoke in support of the legislation.  He stated that the Stanley case rewrote the 1986 collateral source rule permitting evidence of discounted amounts to be placed before the trier of fact.  He stated that the case will result in additional hearings and that those with private insurance, Medicaid and Medicare will be treated unequally.  Representatives from the Defense Trial Counsel of Indiana, Insurance Institute of Indiana, Indiana Department of Insurance, State Farm Insurance, Indiana State Medical Association, Indiana Hospital Association, Indiana Chamber of Commerce and Indiana Manufacturers Association spoke in opposition to the legislation and in support of the Stanley and Butler v. Ind. Dept. of Insurance, 904 N.E.2d 198 (Ind. 2009) decisions.  Testimonial information included the fact that jurors are aware that doctors and hospitals require insurance companies to write off portions of medical bills.  After lengthy discussion, the bill passed 8-4.

Criminal Law

January 22, 2010 | Category: Criminal

The Senate Pensions and Labor Committee heard SB 213 authored by Sens. Delph, Boots and Kruse on unauthorized aliens.  Steve Johnson, Executive Director, Prosecuting Attorneys Council, summarized the provisions establishing or enhancing criminal penalties for conduct associated with illegal immigration.  Other provisions of the bill pertain to employer verification of immigration status, eligibility for unemployment benefits, verification by the Department of Correction and sheriffs of immigration or citizenship status, and a court’s consideration of the defendant’s status as a foreign national not lawfully admitted to the U.S. in bail determinations.  Extensive testimony was heard in support of the bill citing national security issues, local enforcement of federal law and preserving job opportunities available for citizens and legal immigrants.  Testimony was also taken in opposition to the bill from representatives of religious organizations, not-for-profit organizations, the Immigration Attorneys Association and the Indiana Manufacturer’s Association.  The Committee approved the bill 9-0 and referred it to Appropriations.

The Senate Corrections, Criminal, and Civil Matters Committee heard Sen. Merritt’s SB 224, on electronic dissemination of indecent material.  This bill establishes a special category of delinquency for a child who creates, transmits, or possesses an image showing a minor in a state of nudity.  Sen. Merritt explained that under current law, children who engage in such conduct are alleged to have committed felony D, C, or B child exploitation.  The bill also creates delinquency “defenses” for children alleged to be delinquent for engaging in what would have been child exploitation had they been adults, provided the image is not of a child under thirteen or that the image was not transmitted to ten or more other persons.  After discussion, the bill was held for a subcommittee to consider possible amendments.

The Senate Corrections, Criminal, and Civil Matters Committee heard Sen. Yoder’s SB 285, pertaining to the sale and tracking of ephedrine.  The bill provides for manufacturer-funded real time ephedrine sales reporting.  After extensive testimony about the proposed reporting system, the bill passed 8-2.

The Senate Corrections, Criminal, and Civil Matters Committee heard Sen. Steele’s SB 290, on probation.  The bill creates an exemption to the requirement for the constant monitoring of offenders on home detention in an area of a county in which the necessary electronic monitoring telecommunications infrastructure is unavailable.  One member suggested that the bill’s provision requiring reports on un-monitorable individuals “as soon as possible” be made more specific by providing instead for a particular time period.  Based on Sen. Steele’s assurance that he would work on this issue on second reading, the bill passed 10-0.

The House Courts and Criminal Code Committee continued its hearing on HB 1163 concerning expungement of records of certain convictions authored by Rep. Tincher.  The Committee discussed an amendment that addresses the sealing of an exonerated person’s records and information, provides that a court may unseal the records after approval of written applications showing good cause for the unsealing of the records, the use of such records in civil actions, and the rights of the exonerated person after sealing of the records.  Steve Johnson of the Prosecuting Attorneys Council raised additional concerns regarding the procedure for sealing records in the amendment that he previously discussed with Larry Landis of the Public Defenders Council.  The Committee made some additional changes and adopted the amendments by consent.  Both Mr. Johnson and Mr. Landis agreed to continue to review this legislation as it moves forward.  The bill passed as amended 12-0.

The House Judiciary Committee heard HB 1234, authored by Rep. Reske regarding no contact orders.  This bill requires a court to include as a condition of bail the requirement that a defendant charged with a violent crime (as defined in IC 5-2-6.1-8) refrain from any direct or indirect contact with the victim if the defendant is released to bail without a bail hearing in open court.  The Public Defender Council testified in opposition that the bill removes judicial discretion, impinges on the defendant’s constitutional right to bail, and may have unintended consequences.  Additionally, the bill may cause a defendant who otherwise would be entitled to bail to not post bail because he or she could not return home.  Rep. Foley expressed concern about the broad indirect contact prohibition and the automatic nature of this no contact order.  Rep. Lawson stated her support for this legislation and its ability to prevent domestic violence.  Although the committee did discuss the addition of a limitation of this order to 72 hours, the bill passed 7-1.

Family and Juvenile Law

January 22, 2010 | Category: Family/Juvenile

The Senate Judiciary Committee heard SJR 13, proposing a constitutional amendment establishing the definition of marriage as between one man and one woman.  This proposed amendment has not been previously agreed to by a General Assembly.  After two hours of testimony and discussion, the bill passed 6-4.

The Family, Children, and Human Affairs Committee heard HB 1055 concerning grandparent and great-grandparent visitation.  Rep. Stilwell explained that the bill permits grandparents and great-grandparents of intact families to petition for visitation rights if they had meaningful contact with the child.  He further explained that the bill provides factors for the courts to consider when deciding these petitions.  Questions were raised about the definition of meaningful contact, whether the rights of parents to raise their children without interference were being usurped, and whether guardianship or other remedies currently exist. Testimony in favor of the bill was heard from grandparents.  An attorney representing parents spoke in opposition to the bill noting the stress imposed on children in these types of cases and pointing out legitimate reasons a court might deny the requested visitation.  The bill passed 11-1.

The Courts and Criminal Code Committee heard HB 1085, authored by Rep. Avery regarding the disposition of certain children in need of services (CHINS).  The bill provides that reasonable efforts to reunify a child with a parent, guardian or custodian or to preserve the family are not required if the child was adjudicated a CHINS on three separate occasions as a result of an act or omission of the parent, guardian or custodian.  Committee members expressed concern about the “three strikes” concept in the juvenile area and inquired whether such a concept might better fit in termination of parental rights cases.  James Payne, Director of the Department of Child Services, spoke against the bill as presently written, but expressed sympathy with the problem of repeated CHINS cases involving the same child.  He explained that the bill as written will jeopardize Title IV-E federal monies. Rep. Pierce suggested that the Family, Children, and Human Affairs Committee should be contacted about the potential loss of federal monies and whether an exception may be permissible.  Director Payne expressed a willingness to seek an opinion from the Family, Children, and Human Affairs Committee, work with Rep. Avery to revise this bill, and make previous CHINS cases a factor for consideration in a termination of parental rights case.  The bill was held and no vote was taken.

The Family, Children, and Human Affairs Committee continued discussion on HB 1157, creating a select joint commission on child welfare services oversight.  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.  With the adoption of the amendment, the bill passed 7-5. 

The Family, Children, and Human Affairs Committee continued discussion on HB 1169, concerning volunteer advocates for incapacitated adults and seniors.  The committee adopted an amendment assigning guardianship to the program and not the volunteer advocate ensuring continuity of care if the volunteer advocate changes.  The bill passed as amended 12-0.

Judicial Administration

January 22, 2010 | Category: Administration

The House Ways and Means Committee heard HB 1154 pertaining to Marion County magistrates, authored by Reps. Pryor, Porter and Richardson.  This bill was approved by the House Judiciary Committee last week and referred to Ways and Means to consider any fiscal impact.  Rep. Pryor explained that the 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 fee of at least $35 for each traffic violation in Marion County.  The bill also provides that Marion County will make up the difference if the amount of fees collected does not cover the amount necessary for the magistrate salaries.  Rep. Pryor also explained that Marion County initially had legislative authority to collect this fee for the purpose of easing jail overcrowding.  The fees are still collected, but Marion County no longer needs the funds for the original purpose.  Rep. Pryor further explained that the Commission on Courts considered the bill during the summer study period and recommended approval.  She introduced an amendment to the bill that allows any savings realized by the county as a result of the bill to be used to support guardian ad litem appointments for children in CHINS cases.  Judges Tim Oakes and Heather Welch of Marion Superior Court testified in favor of the bill.  The amendment was adopted by consent and the amended bill passed 22-1.

Miscellaneous

January 22, 2010 | Category: Miscellaneous

The Senate Judiciary Committee heard SB 222, on technical corrections to the Indiana Code.  It passed as amended 9-0.

Salaries and Benefits

January 22, 2010 | Category: Salaries/Benefits

The Senate Pensions and Labor Committee granted Sen. Kruse’s request to withdraw SB 104 pertaining to prosecuting attorneys retirement fund issues.  The author was unable to find an alternative funding source to support the bill provisions.

Traffic

January 22, 2010 | Category: Traffic

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 93, Sen. Boots’ bill requiring motorists to yield to stationary utility service vehicles.  The bill requires motorists to reduce speed by ten miles per hour below the posted limit when passing parked utility vehicles with flashing lights.  The bill passed 9-2.

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 399, authored by Sen. Michael Young which caps fines for moving violations.  Fines would be capped: (1) at court costs if the motorist admits the violation prior to his court date, (2)  at costs plus $50.50 if the motorist admits the violation on the day of the court date, (3) at costs plus $50.50 if the motorist contests and is found to have committed the violation in court and has not contested another moving violation within the previous five years, (4) at costs plus $250.50 if the person contests and is found to have committed the violation and is found to have contested another moving violation within the previous five years, and (5) at costs plus $500 if the person contests and is found to have committed the violation and is found to have contested two or more moving violations in the previous five years.  Sen. Young stated that the bill was introduced in response to reports from Marion County constituents who were fined the maximum $500 judgment plus costs for contesting Class C moving traffic infractions.  Members agreed that motorists should not have greater judgments imposed on them because they opt to have an infraction trial.  Some senators said they would vote for the bill but would like to see it altered to give the court some flexibility to impose higher amounts for more dangerous violations, e.g., distinguishing between speeding five miles over the limit versus twenty miles over the limit.  The bill passed 10-1.