General Information

January 27, 2012 | Category: General

This is the fourth 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.

Judicial Administration

January 27, 2012 | Category: Administration

The Senate Judiciary Committee heard SB 8 regarding representation of judges in mandate litigation authored by Sen. Boots. This bill requires the Attorney General to represent a court that has issued an order of mandate for funds for the operation of the court or court related functions, and prohibits the state from reimbursing a judge for expenses incurred in employing a private attorney to represent the court in an action for mandate of funds. Amendment makes this effective July 1, 2013, instead of July 1, 2012. Judge Robin Moberly for the Indiana Judges Association, Judge Vicki Carmichael, Judge Dan Moore, and the Association of Indiana Counties testified in support of the bill.  The Committee held this bill without voting.

The Senate Judiciary Committee heard SB 152 regarding the Allen Circuit Court authored by Sen. Kruse. Judge Felts presented this bill, which does not add any new judicial officers, but changes a current magistrate position from a Title IV-D magistrate to a state paid magistrate. The effective date was amended to July 1, 2013. The bill passed, as amended, 8-0. The bill was then reassigned and heard by the Senate Appropriations Committee, where Judge Felts again testified on its behalf.   The Appropriations Committee passed the bill unanimously.

The Senate Judiciary Committee heard SB 235 on pro bono legal services fee authored by Sen. Grooms and Sen. Steele. This bill imposes a pro bono legal services fee of $1 on parties who file certain civil actions, small claims actions, and probate actions, and requires the fees to be transferred to the Indiana Bar Foundation. This bill also requires the Indiana Bar Foundation to deposit in an appropriate account and otherwise manage the fees the foundation receives in the same manner it deposits and manages the net earnings the Foundation receives from IOLTA accounts, and use these fees to assist or establish approved pro bono legal services programs. The Indiana Bar Foundation testified to explain the need for this new fee because of the low interest rates the last three years. The Indiana State Bar Association also testified in full support. The bill passed with a vote of 8-0.  The bill was then reassigned and heard by the Senate Appropriations Committee. The bill was amended to include that the Indiana Bar Foundation is subject to audit by the State Board of Accounts. The Indiana State Bar Association and Indiana Bar Foundation testified in support of the bill. The Appropriations Committee passed the amended bill unanimously.

The House Judiciary Committee heard HB 1049 on problem solving courts introduced by author Rep. Koch. The bill makes several changes to the problem solving court statutes, including expanding eligibility and authorizing the court as well as the clerk to collect program fees. The bill also makes changes to the court alcohol and drug program statutes concerning education, treatment, and fees. The Committee adopted two amendments. The first amendment revises various statutes regarding the Office of the Inspector General. The second amendment authorizes a city court in certain cities to have concurrent jurisdiction with the circuit court in civil cases in which the amount in controversy does not exceed $3,000. Testimony in support of the bill was heard from Judge John Surbeck, Allen Superior Court, and the Indiana Judicial Center. Testimony in support of the first amendment was heard from Dhiann Kinsworthy of the Office of the Inspector General. The amended bill passed 7-0.

The House Judiciary Committee heard HB 1092 authored by Rep. Burton and Rep. Steuerwald authorizing a fourth Johnson superior court judge as of January 15, 2015. Rep. Burton introduced the bill, and Judge K. Mark Loyd, Johnson Circuit Court, testified in support of the bill. The bill passed 7-0.

The House Courts and Criminal Code heard HB 1152 concerning city and town courts jurisdiction authored by Rep. McClain.  The bill limits misdemeanor jurisdiction to those city and town courts that are required to be attorneys in good standing in accordance with IC 33-35-5-7(c).  The Committee adopted an amendment to include additional city and town courts that currently have judges who are attorneys into IC 33-35-5-7(c).  Those testifying in favor of the bill included: Judge Mark Stoner, Marion Superior Court, on behalf of the Judicial Conference Strategic Planning Committee; Judge Tom Felts, Allen Circuit Court, on behalf of the Indiana State Bar Association; and Larry Landis, Indiana Public Defender Council.  Four city and town court judges, a chief of police, a town council member, and a deputy prosecutor testified against the bill.  After discussion, the Committee established a sub-committee to look at a second reading amendment to address additional concerns.  The bill passed as amended 9-2.

Civil Law

January 27, 2012 | Category: Civil

The House Judiciary Committee continued consideration of HB 1133 concerning rights of publicity authored by Rep. Eberhart and Rep. Foley for a vote only. The amended bill passed 7-0.

The House Judiciary Committee heard HB 1206 regarding third party lawsuit lending authored by Rep. Culver and Rep. Foley. Rep Culver explained that lawsuit lending incentivizes plaintiffs to reject reasonable settlement offers and offered an amendment intended to clarify the bill. Testimony in support of the bill was heard from the insurance industry and the Indiana Chamber of Commerce. Testimony in opposition to the bill was heard from the legal finance industry and a consumer. The Committee determined that this issue requires further review and will seek a resolution to send this issue to a study committee.

Criminal Law

January 27, 2012 | Category: Criminal

The Senate Judiciary Committee heard SR 6 on creating a summer study committee on Indiana’s grand jury system authored by Sen. Delph and Sen. Holdman. Larry Landis testified in support of the bill.  The bill passed with a vote of 6-2.

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 97 on public intoxication. Author Sen. Michael Young presented the bill amending the public intoxication offenses to provide they apply only if the intoxicated person (1) endangers the person’s life, (2) endangers the life of another person, or (3) breaches the peace or is in imminent danger of breaching the peace.  The bill is intended, he said, to avoid the result in Moore v. State, 949 N.E.2d 343 (Ind. 2011), in which the Supreme Court affirmed the public intoxication conviction of a person who had been riding in her automobile which was being driven by a sober individual.  Sen. Young said that Indiana is one of five states requiring no more than intoxication in a public place to constitute the public intoxication offense.  Committee members responded favorably to the bill, which they agreed would prevent convicting persons from engaging in the desirable conduct of using a “designated driver.”  A representative of the Prosecuting Attorneys Council urged the Committee to adopt an amendment to encompass other conduct (e.g., providing that the intoxicated person commits the offense if his conduct “may endanger” life), advocating the Tennessee offense as a desirable model.  Committee members unanimously rejected these suggestions and passed the bill as introduced 10-0.

The Senate Judiciary Committee heard SB 196 on downloading of cell phone information by police authored by Sen. Waltz. This bill prohibits a police officer from extracting or otherwise downloading information from a telecommunications device and retaining it as evidence pending trial for a violation of the law concerning typing, transmitting, or reading a text message while operating a motor vehicle unless the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime, or the information is extracted or otherwise downloaded under a valid search warrant.  This bill also provides that if a law enforcement officer detains a person because the law enforcement officer believes the person has committed an infraction or ordinance violation, the law enforcement officer may not extract or otherwise download information from a cellular telephone or another wireless or cellular communications device possessed by the person at the time the person is detained unless the law enforcement officer has probable cause to believe that the cellular telephone or other wireless or cellular communications device has been used in the commission of a crime, or the information is extracted or otherwise downloaded under a valid search warrant. The committee accepted an amendment by consent. The Executive Director of the Libertarian Party testified in support, and the Indiana State Police testified against this bill. No vote was taken.

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 234, on synthetic drugs (including “bath salts”), authored by Sen. Alting and Sen. Merritt. This bill changes synthetic cannabinoid offenses to synthetic drug crimes and to make possession and sale of “bath salts” a “synthetic drug” offense.  Sen. Merritt presented the bill with a major proposed amendment.  Due to the rapid pace of the development of synthetic drugs, the amended bill authorizes the State Board of Pharmacy to add new substances to the synthetic drug crimes by regulation when either the DEA or another state schedules the new substance; the regulation would become effective thirty days after promulgation.  The amended bill also tightens the definition of “analog” substances prohibited based on their molecular similarity to legislatively-defined prohibited synthetic drug compounds. The bill would is upon passage.  After adopting the proposed amendment by consent the Committee passed the bill 10-0.

The Senate Judiciary Committee heard SB 243 on silencers when hunting authored by Sen. Grooms, Sen. Holdman, and Sen. Waterman. This bill repeals the law prohibiting the possession or use of a silencer while in the act of hunting, and providing that a person who takes or possesses a deer or wild turkey unlawfully, by illegal methods, or with illegal devices while using or possessing a silencer commits a Class C misdemeanor. Testimony was heard from numerous people in support of the bill. This bill was passed with a vote of 7-1.

The Senate Judiciary Committee heard SB 246 on lab technician testimony in criminal cases authored by Sen. Bray. This bill is in response to the U.S. Supreme Court case, Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). This bill requires a prosecuting attorney who intends to introduce a laboratory report into evidence to file a notice of intent at least 20 days before the trial, and requires a defendant who wishes to cross-examine the technician who prepared the laboratory report to file a pretrial demand for cross-examination not later than ten days after receiving the notice from the prosecutor. This bill provides that if a defendant properly files a pretrial demand for cross-examination, a laboratory report is not admissible into evidence unless the technician who prepared the report testifies at trial, except that the laboratory report is admissible without the testimony of the technician if the technician is unavailable for trial and the defendant was provided a pretrial opportunity to cross-examine the technician. Additionally, this bill provides that a defendant’s failure to properly file a pretrial demand for cross-examination constitutes a waiver of the right to cross-examine the laboratory technician.  The amendment drafted by Larry Landis provides a simple notice and demand procedure for laboratory reports and technician testimony.  The Indiana Prosecuting Attorneys’ Council and Attorney General’s Office testified in support.  The bill passed, with amendment, 8-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 347, on marijuana offenses, authored by Sen. Tallian. This bill makes possession of small amounts of marijuana an infraction.  Testimony was presented on proposals to make possession of less than 3 ounces of marijuana an infraction, to reduce punishment for other marijuana offenses, to eliminate any penalty for possession of small amounts of marijuana with a physician’s approval, and to eliminate the marijuana tax stamp laws.  Testimony was also presented (and favorably received) on industrial hemp, which was said to have very little psychoactive content in comparison with the “marijuana” used as a drug, many commercial uses, and formerly grown in Indiana as a legal commercial crop.  Committee Chair Sen. Steele said he would like to see a proposal for marijuana infractions and other measures on marijuana and hemp presented again to summer study committees for potential adoption next year.

The House Courts and Criminal Code Committee continued its discussion from two weeks ago on HB 1011 various correction matters authored by Rep. Foley.  The Committee adopted two amendments related to the county incentive and disincentive for class D felony offenders and probation matters.  A representative from the Department of Correction, Larry Landis from the Public Defenders Council, and Andrew Berger with the Association of Indiana Counties testified before the Committee.  The bill passed as amended 11-0.

The House Veterans Affairs and Public Safety Committee heard HB 1120 on arrests or citations at traffic stops authored by Rep. Morris. An amendment was drafted by the Indiana State Police that stripped the original bill.  The Committee adopted the amendment by consent. The amendment creates exceptions under which a police officer can stop someone without lights on their car.  The exceptions are aggressive driving, reckless driving, driving under the influence, and leaving the scene of an accident.  Testimony was heard in opposition to the bill by the Public Defenders Council and the Indiana Coalition of Sexual Assault. The bill was tabled for further discussion.

Family/Juvenile

January 27, 2012 | Category: Family/Juvenile

The Senate Judiciary Committee heard SB 190, on termination of parent-child relationship, authored by Sen. Charbonneau and Sen. Bray. Many states currently have laws of this nature.  The bill, as amended, provides that if the alleged rapist is or alleges to be the biological parent and seeks custody, parenting time or contact with the child, and the court finds by clear and convincing evidence the child was conceived as the result of rape and the individual was the perpetrator of the rape, the court shall deny custody, parenting time and contact with the child.  In addition, the court may not require the individual to pay child support.  Director James Payne added this proposed law uses the Louisiana approach in requiring the perpetrator to take action before acquiring any rights, rather than requiring the mother to hire an attorney and file a Termination of Parental Rights action.  Indiana Adoption Agencies United and Indiana Coalition Against Sexual Assault support the bill.  The bill passed as amended, 8-0.

The House Family, Children and Human Affairs Committee heard HB 1252 regarding prerequisites for filing for dissolution of marriage authored by Rep. Noe.  This bill enlarges the waiting period for dissolution of marriage.  In a dissolution where there is a minor child, the parent who seeks a dissolution must file a notice of intent to file a dissolution, and wait 120 days for the dissolution if both parents complete a divorce education program.  The wait is 300 days if one or both parents do not complete a divorce education program.  The bill provides exceptions to these requirements.  Members of the committee expressed concern (1) at being required to stay with someone when the intent to file the dissolution was made, (2) the mechanics of where to file the intent document and service of it, (3) the potential to allege and prove an exception to the waiting requirement which might be fraudulent, (4) problems with protection orders associated with the dissolution, and (5) other issues.  The Indiana Coalition Against Domestic Violence expressed concern about, among other items, the lack of provisions for indigents required to take the educational program for the lesser waiting period.  Attorneys testified to the potential for fraud in order to meet the exceptions.  A representative from the Indiana Family Institute, the Indiana Pastors’ Alliance, the Indiana Healthy Family Coalition, and others testified in favor of lengthening the waiting period and the benefits of keeping the family intact.  There was no vote taken by the committee on the legislation

Miscellaneous

January 27, 2012 | Category: Miscellaneous

The Senate Judiciary Committee heard SB 237 regarding noncode statutes authored by Sen. M. Young, Sen. Arnold, and Sen. Banks, and prepared by the Code Revision Commission. This is a non-substantive bill that only makes technical corrections. The bill passed with a vote of 6-0.

Probate Law

January 27, 2012 | Category: Probate

The Senate Tax and Fiscal Policy Committee heard SB 293 on inheritance tax authored by Sen. Smith and Sen. Hershman. This bill reclassifies a spouse, widow, or widower of a child of the transferor as a Class A transferee instead of a Class B transferee, and a spouse, widow, or widower of a stepchild of the transferor as a Class A transferee instead of a Class C transferee. This bill annually increases the inheritance tax exemption amounts through 2015, provides that the tax base for determining the inheritance tax includes the exempted amount but applies a 0% tax rate to transfers that are equal to or less than the exempted amounts, and reduces the inheritance tax rates by 50% for transfers resulting from the death of an individual who dies after June 30, 2016. Additionally, this bill repeals the Indiana estate tax on July 1, 2012, and provides that the repealed statutes, as in effect on June 30, 2012, apply to the estate of an individual who dies before July 1, 2012. The bill was amended to delete language regarding filing for the refund of inheritance or Indiana estate tax which has been erroneously or illegally collected, and appeals.  The bill passed, as amended, 12-0.

The House Ways and Means Committee resumed discussion of HB 1258 concerning various estate planning matters authored by Rep. Foley, Rep. McMillin and Rep. DeLaney. Rep. Espich offered an amendment deleting references to Medicaid liens in the bill to provide the Committee with further opportunity to determine the fiscal impact of this language on the State of Indiana. The amended bill passed 17-0.