This is the third weekly installment of the Legislative Update for the 2012 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 at: http://www.in.gov/apps/lsa/session/billwatch/billinfo.
The Senate Corrections, Criminal, and Civil Matters Committee finished hearing SB 5, Sen. Head’s bill on funding of lawsuits. The bill regulates the practice of making a loan to a plaintiff in an action in exchange for the contingent right to receive a part of the potential proceeds of the action. After testimony and an amendment, the bill failed to pass by a 3-4 vote.
The Senate Appropriations Committee continued discussion on SB 54, state university use of eminent domain. An amendment was introduced by author Sen. Eckerty removing references to the capitalization of property and approval by the budget committee as well as adding clarifying language, and was adopted by consent. Sen. Eckerty testified that the amended bill is intended to establish the parameters of fairness and equity when public universities invoke eminent domain. Supportive testimony from a representative of Indiana University was heard. The amended bill passed, 7-4.
The Senate Judiciary Committee heard SB 156 regarding partition authored by Sen. Steele. The bill repeals superseded provisions and establishes a new procedure for partitioning real and personal property that requires a court to refer the matter to mediation, and to order that the property be sold at auction if the parties are not able to reach an agreement during mediation. The bill passed after technical amendment by a vote of 9-0.
The Senate Insurance and Financial Institutions Committee heard SB 298 on mortgages and liens on real property authored by Sen. Zakas. Current law provides that a mortgage or lien expires ten years (or 20 years for a mortgage or lien created before September 1, 1982) after the due date of the last installment of the secured debt, and this bill provides that a mortgage or vendor’s lien on real estate in Indiana expires five years after the due date of the last installment of the secured debt. The bill also provides that if the record of the mortgage or lien does not show the due date of the last installment, the mortgage or lien expires in six years, instead of the 20-year expiration under current law, after the date of execution of the mortgage or lien. The bill provides that if: (1) the record of the mortgage or lien does not show the due date of the last installment; and (2) the execution date is omitted from the mortgage or lien; the mortgage or lien expires 6 years after the mortgage or lien is recorded. The bill makes corresponding changes in the provision that allows the mortgagee or lienholder to file an affidavit stating when the debt becomes due. For purposes of an action to foreclose a mortgage on an interest in real property in Indiana, an “interested person” is defined as: (1) the holder of the evidence of debt secured by the mortgage being foreclosed; or (2) a person to whom a sheriff’s deed is conveyed as a purchaser of the property at a judicial sale ordered in the action. The bill defines an “omitted party” as a person who: (1) before the foreclosure action acquired in the property a record interest that is junior or subordinate to the mortgage being foreclosed; and (2) either is not named as a defendant in the action or not served with process, or is not served with a notice of sale after a judicial sale is ordered in the action. The bill provides that at any time after a judgment and decree of sale is entered in an action to foreclose a mortgage on an interest in real property in Indiana, an interested person or an omitted party may bring a civil action to determine the extent of and terminate an omitted party’s interest in the property. This bill provides that upon the filing of such an action, the court shall determine the extent of the omitted party’s interest and issue a decree terminating that interest, subject to the right of the omitted party to redeem the property if the omitted party would have had redemption rights under existing law. Additionally, this bill sets forth factors that the court must consider in determining the terms of redemption: (1) the amount to be paid for redemption may not be less than the sale price resulting from the foreclosure of the senior lien, plus interest; and (2) the time allowed for payment of the redemption amount may not exceed 90 days from the date of the court’s decree. Also, the bill provides that: (1) the senior lien on which the foreclosure action was based is not extinguished by merger with the title to the property conveyed to a purchaser at the judicial sale until the interest of any omitted party has been terminated through an action authorized under the new provisions or by operation of law; and (2) until an omitted party’s interest is terminated, the purchaser at the judicial sale is the equitable owner of the senior lien and has all rights against an omitted party as existed before the sale. This bill provides that an interested person’s rights under the new provisions may not be denied because of certain acts or omissions by the interested person. It was explained that this law is in response to the Indiana Supreme Court’s decision in Citizen’s State Bank of New Castle v. Countrywide Home Loans, Inc. (decided June 29, 2011) which adopted the doctrine of merger; the bill restores the doctrine of strict foreclosure. Representatives from the Indiana State Bar Association and the Indiana Bankers and Mortgage Brokers Association testified in support of the legislation. As amended the bill passed 7-1.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 329 on eminent domain filing deadlines authored by Sen. Hume. The bill provides that the 20-day period in which a party to an eminent domain action may file an objection to the report of the appraiser begins not when the report is filed, as in current law, but rather on the date the party receives written notice of the filing from the clerk. The bill was amended to change the period from 20 days to 45 days after the party receives the clerk’s notice, and was passed as amended 8-0.
The House Judiciary Committee heard HB 1015 authored by Rep. Davisson regarding immunity when granting access to cemetery. This bill provides immunity from civil liability to landowners who grant a decedent’s family members and descendants access to cemeteries that are located on the landowners’ properties and a property tax assessment as cemetery lands. It also provides immunity from civil liability to persons who guide family members or descendants to those cemeteries. An amendment was taken by consent to extend immunity to invitees. The amended bill passed 9-0.
The House Judiciary Committee heard HB 1133 regarding rights of publicity authored by Rep. Eberhart and Rep. Foley. This bill is a clarification of current law providing that a deceased personality’s rights of publicity apply to the personality whether the personality died before, on, or after July 1, 1994 (the original effective date of the rights of publicity law), and if the personality died before July 1, 1994, the rights are considered to have existed on and after the date the personality died. The bill was amended to track with the Son of Sam law (profiting from crimes). Testimony was heard in favor of and inopposition to the bill from those in the motion picture and right of publicity businesses. Vote was held for further discussion.
The House Financial Institutions Committee heard HB 1238 regarding finding of abandonment for residential property authored by Rep. Burton. This bill specifies that for purposes of the statute governing foreclosure prevention agreements for residential mortgages, the statute: (1) applies to a mortgage made with respect to a dwelling that is occupied by the debtor as the principal residence of the debtor; and (2) does not apply to a mortgage made with respect to a dwelling that is purchased by the debtor as a second home or a vacation home and is not occupied by the debtor as the debtor’s principal residence. This bill also provides a procedure that allows a creditor in a residential mortgage or an enforcement authority with jurisdiction in the location of the mortgaged property to petition the court having jurisdiction over an existing or a potential mortgage foreclosure action to find that the mortgaged property is abandoned. Additionally, the bill provides that the creditor or enforcement authority may petition the court for a determination of abandonment in connection with an existing foreclosure action, or before any foreclosure action is filed; by filing a complaint or a motion with the court, as appropriate. The bill specifies that if a petition is filed outside an existing foreclosure action, or a petition is filed at the same time a foreclosure action is filed the petitioner must include a notice containing certain information about the requested abandonment determination on the first page of the summons that is served on the debtor in conjunction with the complaint. This bill requires the housing and community development authority (authority), in consultation with the Division of State Court Administration, to prescribe, not later than June 1, 2012, language for the notice required to be included on the first page of the summons that is served on the debtor. This bill provides that upon receiving a petition for a determination of abandonment, the court shall issue an order to show cause as to why the property should or should not be found to be abandoned and to direct the appropriate parties to appear before the court on a date and time specified in the order. Additionally, this bill provides that a party subject to the order has the right to present oral or written evidence or objections on the issue of abandonment to the court, and be represented by an attorney when appearing before the court. This bill provides that the court shall hold a hearing on the issue of abandonment on the specified appearance date, subject to the court’s right to cancel the hearing if the court receives a request for a settlement conference by the debtor before the specified appearance date, or finds that a hearing would be of limited value based on written evidence or objections received by the court before the appearance date. It provides that after considering all evidence and objections presented on the issue of abandonment, the court shall issue an order finding that the mortgaged property is abandoned if the court determines that certain conditions apply with respect to the mortgaged property. This bill provides that either or both of the following constitute conclusive evidence that the mortgaged property is abandoned: (1) failure by the debtor to present evidence or objections on the issue of abandonment or to appear before the court on the specified appearance date; (2) the existence of one or more written statements, including documents of conveyance, that are executed by the debtor and indicate a clear intent to abandon the property. An amendment was introduced, and the bill passed as amended, 9-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 1 on the right to defend against unlawful entry authored by Sen. R. Michael Young. This bill was drafted by the Legislative Council Barnes v. State Subcommittee in reaction to the Indiana Supreme Court decision. The bill is intended to establish a “bright line” between lawful and unlawful entries by police. Sen. Young offered an amendment striking the domestic violence basis for a lawful police entry; explaining that domestic violence entries are still permissible under the provision for entry based on an officer’s “reasonable belief that a person inside the dwelling has been or is at risk of physical harm.” The amended bill passed 8-0.
The House Courts and Criminal Code Committee heard SB 4 on human trafficking authored by Senators Head, Walker, and Hume, and sponsored by Representatives Steuerwald, L. Lawson, Foley, and Welch. The bill provides that recruiting, harboring, or transporting another person to participate in sexual conduct by force, threat of force, or fraud constitutes human trafficking. The bill also provides that a person who recruits, harbors, or transports a child less than 16 years of age with the intent of engaging the child in forced labor, involuntary servitude, prostitution, or sexual conduct commits promotion of human trafficking of a minor, a Class B felony, and prohibits a person at least 18 years of age from selling or transferring custody of a child less than 16 years of age for the purpose of prostitution or participation in sexual conduct. The bill passed unanimously.
The Senate Judiciary Committee heard SB 114 on driving while suspended authored by Sen. Bray. This bill makes a technical correction concerning calculating the ten-year recidivism period under the driving while suspended statute. The bill passed 9-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 154, Sen. Steele’s bill to move operating a motorboat while intoxicated offenses to Title 35 and to revise the language to match the existing drunk driving offenses. The bill passed 7-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 185 on battery on a security officer authored by Sen. Grooms. The bill makes battery on a security officer a D felony. The Committee agreed with Public Defender Council’s Larry Landis’s proposal that the bill be sent for summer study by the Criminal Code Evaluation Commission, and the bill was tabled.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 234 on synthetic drugs (including “bath salts”) authored by Sen. Alting and Sen. Merritt. The bill abandons the “synthetic cannabinoid” terminology adopted last year for “synthetic drugs.” The bill avoids identifying exact compounds to be made illegal, substituting instead a series of basic prohibited synthetic structures along with any “analogue” or “homologue” of such structures. Several amendments were offered to the bill. One amendment makes this bill identical to HB 1196. A second amendment does the same, strikes “analogue” and “homologue” and adds the HB 1215 provisions for the State Police and Board of Pharmacy to establish, by regulation, new prohibitions on new synthetics as they are developed. The third amendment also has the State Police and Board of Pharmacy regulations and strikes “homologue” but not “analogue.” The bill was taken under advisement to permit the members to consider the amendments.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 262 regarding IC 4 and IC 5 revision authored by Sen. Bray. This bill relocates state and local administration offenses into a single Title 35 chapter. After testimony from the state Inspector General, who drafted the bill, stating that the bill simply relocates offenses without any substantive changes with two exceptions, the Committee decided to hold the bill for study of one of the exceptions mentioned.
The Senate Judiciary Committee heard SB 274 on immunity for certain alcohol offenses authored by Sen. Merritt, Sen. Head, and Sen. Simpson. The bill prohibits a law enforcement officer from taking a person into custody for a crime of public intoxication or minor possession, consumption, or transportation of an alcoholic beverage if the officer, after making a reasonable determination and considering the facts and surrounding circumstances, reasonably believes that the officer has contact with the person because the person requested emergency medical assistance, or acted in concert with another person who requested emergency medical assistance, for an individual who reasonably appeared in need of medical assistance due to alcohol consumption; and the person meets other requirements. The bill also provides that a person meeting these conditions is immune from criminal prosecution for public intoxication or minor possession, consumption, or transportation of an alcoholic beverage. The bill requires a prosecuting attorney to withhold prosecution for public intoxication or minor possession, consumption, or transportation of an alcoholic beverage against a person who: (1) received medical assistance due to alcohol consumption in response to a request for medical assistance by another person; (2) agrees to a pretrial diversion program in which the person, not later than 90 days after the initial hearing, completes an alcohol education program and 20 hours of community service; and (3) has not had two prosecutions previously withheld under the pretrial diversion program. An amendment, taken by consent, removes the language that, “A prosecuting attorney shall withhold prosecution against a person for an offense under this section if the person meets the conditions of the pretrial diversion program established under IC 33-39-1-8.5.” Testimony was heard in favor by the student body presidents of Indiana University-Bloomington and Purdue, as well as by other organizations that represent college students, and the Attorney General’s office. Many questions were raised by the Indiana Prosecuting Attorney’s Council about the unintended consequences of the application of this bill. This bill, as amended, passed 10-0.
The House Courts and Criminal Code Committee heard HB 1033 regarding conversion of Class D felony to Class A misdemeanor authored by Rep. McMillin and Rep. Page. This bill permits a court to convert a Class D felony to a Class A misdemeanor if: (1) the person is not a sex or violent offender; (2) the offense was a non-violent offense; (3) at least three years have passed since the person completed the sentence; and (4) the person has not been convicted of a new felony. Specifies that a conviction for a Class A misdemeanor that was originally entered as a Class D felony and converted to a Class A misdemeanor under an express sentencing provision is treated as a Class A misdemeanor. An amendment was introduced specifying that if a felony has been reduced under this provision, and the individual commits another felony within five years of the reduction, the conviction will be returned to a felony conviction. As amended, the bill passed unanimously.
The House Veterans Affairs and Public Safety Committee heard HB 1056 on novelty lighters authored by Rep. R. Frye. An amendment was accepted by consent that stripped the original bill. The amended bill makes selling a novelty lighter at retail, offering a novelty lighter for retail sale, or distributing a novelty lighter for retail sale or promotion in Indiana a Class C infraction. Testimony was heard in support of the bill from the Indiana Fire Chiefs’ Association, Wayne Township Fire Department, a taskforce commander of the ATF, the Indiana Volunteer Firefighters’ Association, and the Professional Firefighters’ Union of Indiana. Testimony was heard in opposition to the bill from the Grocer and Convenience Stores Association. The amended bill passed 11-0.
The House Courts and Criminal Code Committee heard HB 1080 on sexual battery authored by Rep. R. Frye and Rep. Eberhart. The bill makes sexual battery a Class D felony, for a person to, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person, touch another person when that person is unaware that the touching is occurring. This bill passed unanimously.
The House Courts and Criminal Code Committee heard HB 1204 regarding the sexual offender registry authored by Rep. Dermody. Four amendments were introduced and adopted by consent. This legislation makes several changes to Indiana Code 11-8-8-22 concerning the sex offender registration provisions on access and registry information retention. The bill passed unanimously.
The House Corrections, Criminal and Civil Matters Committee heard HB 1365 on dual juvenile and criminal jurisdiction. This bill allows a court with criminal jurisdiction to exercise dual jurisdiction of both criminal and juvenile law when a juvenile has been waived to adult court, is less than 17 years old, and committed an act that would be a felony. The bill passed, 9-0.
The Senate Judiciary Committee heard SB 249 regarding record of marriage authored by Sen. Alting. This bill provides that a clerk of a circuit court may forward a record of marriage to the State Department of Health in a paper form or in an electronic form by using an automated system developed by the Judicial Technology and Automation Committee (JTAC) or another automated system approved by the State Department of Health. Testimony was heard by the State Department of Health and Mary DePrez of JTAC. The bill passed, 9-0.
The Senate Judiciary Committee heard SB 402 concerning the Indiana Uniform Law Commission authored by Sen. Simpson. This bill specifies the membership of the Indiana Uniform Law Commission, which is the Indiana delegation of the National Conference of Commissioners on Uniform State Laws (NCCUSL). The bill provides for the reimbursement of expenses incurred by commission members for attending the annual meeting of the NCCUSL. An amendment, taken by consent, adds a law professor appointed by the Chief Justice of the Indiana Supreme Court as a member of the Commission. Testimony was heard in favor of the bill by Mark Dinsmore, head of the Indiana delegation. The bill passed as amended with a vote of 8-0.
The House Judiciary Committee heard HB 1009 authored by Rep. Foley making technical corrections. The amended bill was passed, 8-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard SB 157 regarding copy of power of attorney authored by Sen. Steele. The bill amends present law to provide that a copy of a power of attorney has the same force and effect as the original document, provided the person who grants the power of attorney certifies that the document is a true and accurate copy. The bill was amended to amend IC 30-5-6-4(c) to add a child of the principal as a person who may demand an accounting. The bill passed as amended, 8-0.
The House Judiciary Committee heard HB 1258 on various estate planning matters authored by Rep. Foley and Rep. McMillin. The bill specifies that an individual holding a beneficial or ownership interest in an entity is considered the transferee when a transferor makes a transfer subject to the inheritance tax to the entity. The bill also provides that the individual is liable for the same percentage of the inheritance tax as the individual’s percentage of beneficial or ownership interest in the entity. The bill provides that reasonable funeral expenses have priority over claims to recover supplemental assistance for the aged and Medicaid from a recipient’s estate. The bill specifies that for the purposes of the Medicaid recovery statute, costs of administration include taxes, penalties, and interest paid by the estate, and that costs of administration include the fee of a surrogate attorney for the purposes of determining the priority of claims when an estate’s resources are insufficient to pay all claims. The bill eliminates rules of will construction that applied only to decedents dying in 2010. Additionally, the bill eliminates authority to file a recovery claim against the estate of the recipient’s spouse. This bill also authorizes foreign wills to be probated after the expiration of the probate deadlines for the same limited purposes for which Indiana wills may be probated after the deadlines. This bill provides that when an estate’s resources are insufficient to pay all claims, the amount given priority for reasonable funeral expenses is not subject to any reductions for various benefits received by the decedent. The bill eliminates the requirement that a declaration designating a standby guardian include the Social Security number of the child or protected individual. The bill passed, 7-0.