General Information

February 24, 2012 | Category: General

This is the eighth 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.

Civil Law

February 24, 2012 | Category: Civil

The House Judiciary Committee, for amend and vote only, heard SB 156 on partition sponsored by Rep. Koch and Rep. Foley. This bill establishes a new procedure for partitioning real and personal property that requires a court to refer the matter to mediation to order that the property be sold at auction if the parties are not able to reach an agreement. An amendment to the bill changed the mediation procedure. The bill passed as amended with a vote of 11-0.

The House Judiciary Committee heard SB 322, tort immunity for DOC employees and contractors, sponsored by Rep. Steuerwald.  This bill provides for tort immunities for governmental entities and public employees for employees of the Department of Correction (DOC) and contractors of DOC who provide monitoring services or sex offender treatment for certain offenders. It also provides that a governmental entity or government employee is not liable if a loss results from an injury to a person or property of an individual who is on parole.  The bill was amended to add qualified immunity to law enforcement officers when providing roadside assistance. Testimony was heard against the bill by the Indiana Trial Lawyers Association, and in support of the bill by a representative of a company that provides products and services for home detention. This bill passed as amended with a vote of 11-1.

The House Judiciary Committee heard SB 329 on eminent domain filing deadlines sponsored by Rep. Messmer and Rep. Battles. This bill specifies that a party to an eminent domain action aggrieved by the assessment of benefits or damages in a report of the appraisers filed with a court may file written exceptions to the assessment in the office of the circuit court clerk after the report of the appraisers is filed with the court not later than 45 days after the date the circuit court mails the report. The bill passed 10-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1040 concerning immunity for fast responders sponsored by Sen. Miller. Author Rep. Grubb explained that the bill is intended to establish a structure for community fast responder services in rural areas.  Testimony in support of the bill was heard from an EMT, the American Heart Association and the Indiana Trial Lawyers Association. An amendment was adopted extending immunity protections to schools when the general public is invited on the premises to engage in physical fitness activities. The amended bill passed 10-0.

Criminal Law

February 24, 2012 | Category: Criminal

The House Courts and Criminal Code Committee heard the “Barnes” bill, SB 1, on self defense and defense against unlawful entry, making amendments to statute to define when a citizen may use force to resist an illegal home entry by law enforcement officers.  An amendment was offered expanding the definition of situations in which force may be used to resist law enforcement to address arrests in public places and entries of vehicles.  The Prosecuting Attorneys Council opposed the amendment on the basis that it unnecessarily addressed situations beyond resistance to illegal home entry, and was also concerned with the apparent subjectivity of the bill’s “reasonable belief” of illegality from the resister’s point of view.  Rep. McMillin said that the bill with the amendment would do no more than to restore Indiana’s law as in effect, under the IC 35-41-3-2(b) “castle” statute, prior to the Barnes decision.  Rep. Lawson testified about her experiences as a police officer and urged the Committee to make a careful decision, as the safety of police officers would be affected by the bill.  Testimony was heard from some prosecutors and law enforcement officers of their concern that the mere passage of any bill, amended or not, would be perceived by some as permitting the use of lethal force against police by any citizen who subjectively thought resistance was reasonable.  The Public Defender Council spoke in favor of the amendment, which was a general restatement of Indiana law on resisting entries and arrests.  The amendment was adopted by a vote of 9-3, with Committee members stating that the bill needed to be passed to allow its consideration by the entire House, which would then have the opportunity to make changes on second reading.  Chair Rep. Steuerwald indicated that he would appoint a subcommittee to explore second reading change proposals.  The bill was then passed 9-3.

The House Courts and Criminal Code Committee heard SB 97, Sen. Young’s public intoxication bill, sponsored by Rep. Steuerwald and Rep. McMillin, amending the public intoxication offense to require that the intoxicated person have endangered her life, or the life of another, or have breached or be in imminent danger of breaching the peace.  An amendment was adopted to confer law enforcement officer immunity against any claims of harm resulting from the officer’s not arresting or detaining an intoxicated person.  The bill passed as amended 11-1.

The House Courts and Criminal Code Committee heard SB 246, on lab technician testimony in criminal cases, sponsored by Rep. Foley and Rep. Koch, requiring a prosecutor to give notice 20 days prior to trial that a laboratory test would be used as evidence and require a defendant to file a demand no later than 10 days before trial to cross-examine the person who prepared the laboratory test report.  If the prosecutor fails to give the notice the test cannot be used as evidence, and if the defendant fails to file the demand he is deemed to waive any right to cross-examine the person who prepared the report.  Both the Prosecuting Attorneys Council and the Public Defender Council testified in support of the bill, which passed 11-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1011 concerning various corrections matters sponsored by Sen. Bray. Author Rep. Foley noted that the bill is a product of the Criminal Code Evaluation Commission and is intended to encourage programming and services to enhance positive outcomes for the criminal justice system. Three amendments were adopted pertaining to the fiscal portions of the bill. Testimony in support of the bill was heard from Larry Landis of the Indiana Public Defender Council, Don Travis representing the Probation Officers’ Professional Association of Indiana, and a representative of Mental Health America. Testimony was also heard from law enforcement raising concerns about the impact this bill will have on local jails and from a representative of the Association of Counties regarding the impact of the bill on counties. Judge David Certo and Judge Marc Rothenberg of the Marion Superior Court testified to the potential negative impact that the disincentive program portion of the bill will have on Marion County. The amended bill passed 7-3. The bill was recommitted to Senate Appropriations where it was not heard this week.

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1080 adding an alternative element that the defendant touched the victim to gratify sexual desires when the victim was “unaware that the touching [was] occurring” to the sexual battery offense. The bill was amended to strip the provision on sexual battery, with language added encouraging a summer study committee to evaluate the proposed change in the sexual battery offense.  The sex offender registry provisions of HB 1204 were amended into the bill.  The bill passed as amended 9-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1196 on synthetic drugs (including “bath salts”).  Sen. Merritt presented the bill, which he said is the same as SB 234 as it left the Senate.  The bill adds additional chemical compounds (including some compounds sold as “bath salts”) to the definition of synthetic drugs and expands the definition of synthetic drugs to include certain chemical compounds that are structurally related to synthetic drugs. It also allows the Board of Pharmacy to adopt an emergency rule to declare that a substance is a synthetic drug, although Committee members agreed that the emergency rule would permit civil controls to be imposed on the subject compound but that legislative action would be required to incorporate the compound into the drug crimes.  The bill provides that the definition of synthetic drug includes a compound determined to be a synthetic drug by a rule adopted by the Board, and enhances penalties for dealing in or possessing a synthetic drug if the amount of the synthetic drug is more than two grams.  Sen. Bray expressed concern about criminalizing possession or use of synthetic substances which may be created for and in fact have legitimate legal uses.  The bill passed 8-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1204 regarding the sex and violent offender registry sponsored by Sen. Steele and Sen. Arnold. Author Rep. Dermody explained that the bill clarifies current law regarding the retention of certain information on the sex offender registry when a sex offender is no longer required to register. Brent Myers, Director of Registration and Victim Services, Indiana Department of Correction, testified in support of the bill reiterating that the bill reinforces current law. The Office of the Attorney General and the Indiana Coalition Against Sexual Assault also testified in support of the bill. Larry Landis, Executive Director, Indiana Public Defender Council, expressed concern that the law does not include a procedure for those who are no longer required to register to remove their personal information from the registry. The Committee heard testimony in opposition to the bill from members of the public. The bill was held for further discussion.

Family and Juvenile Law

February 24, 2012 | Category: Family/Juvenile

The Family, Children and Human Affairs Committee heard SB 18, duty to support a child, sponsored by Rep. Kirchhofer.  This bill amends the child support statutes to provide a parent’s duty to support a child ends when the child turns 19 years of age.  An amendment was adopted by consent to remove confusing language attempting to clarify that the duty of support does not apply if the child is emancipated or in certain other cases.  Author Sen. Steele noted there are provisions indicating a child who is receiving support under an order issued before July 1, 2012 may file a petition for educational needs until age 21.  However, a child who is receiving child support under an order issued after June 30, 2012, may only file a petition for educational needs until age 19.  He explained there were many orders issued when the child was under 5 years old for support through grade 12.  Parents were routinely told to come back to court when the child is older for an order concerning post-secondary education. These provisions would permit a parent who was told this many years ago to continue to ask for the support until age 21.  The bill passed as amended 12-0.

The House Judiciary Committee heard SB 190, denial of parenting rights to rapists, sponsored by Rep. Kubacki, Rep. Ellspermann, and Rep. Riecken.  Author Sen. Charbonneau introduced and explained the bill, which permits a court to deny custody, parenting time or contact with the child conceived as a result of rape to the biological or alleged biological parent if the court finds by clear and convincing evidence the child was conceived as the result of the rape and the individual perpetrated the rape.  If this contact is denied, the individual would not be required to pay child support.  Married women who are raped are excluded from this legislation.  Representatives from the Indiana Coalition Against Sexual Assault and Indiana Right to Life spoke in favor of the bill.  The Committee agreed to try to force the bill to a conference committee, and obtained the promise of Sen. Charbonneau to ask for a conference committee to look at the bill.  They amended it back to the original Senate version and additionally added a requirement that the Child Custody and Support Advisory Committee look at this issue this summer.  The bill passed as amended, 9-3.

The House Family and Children Committee heard SB 267, a bill on education concerning child abuse, also known as “Aaron’s Law,” sponsored by Rep. Behning and Rep. L. Lawson. Author Sen. Rogers explained this legislation requires Department of Education and DCS to develop education materials using evidence-based models and reporting polices on child abuse for use by schools.  Prevent Child Abuse and Marion County Commission on Youth testified in favor of the bill.  The bill was amended by consent to provide parents may opt in to have their child in class when a school teaches this child abuse prevention program, rather than a requirement the parent opt their child out of hearing the presentation.  The bill passed as amended 11-0.

The House Family, Children and Human Affairs Committee completed their discussion from last week on the Department of Child Services bill, SB 286.  As fully discussed in last week’s legislative update, this bill repeals county pay provisions in the juvenile justice area and makes numerous amendments to child abuse laws.  Discussion this week centered on five amendments or concepts:

(1)   Legislative oversight of DCS stemming from problems at the Child Abuse Hotline.  Rep. Noe, chair, would not permit a vote on an amendment of this nature.

(2)   Rep. Foley offered an amendment creating a summer study committee to discuss the unmet mental health needs of children within the juvenile justice system, and to discuss whether a prosecutor should be permitted to file a CHINS 6 petition.  Rep. Foley read an email from Judge Burnham, President of the Indiana Council of Juvenile and Family Court Judges, supporting passage of SB 286 and this commission.  The amendment was adopted by consent.

(3)   Rep. Noe agreed to work with Rep. Riecken concerning the turnover of staff at the Child Abuse/Neglect Hotline, and at DCS generally, and the need to talk to DCS staff without any repercussions to them.

(4)   A technical amendment was offered to prevent a conflict between SB 286 and SB 287, both amending the same section of Indiana Code.  This amendment passed by consent.

(5)   Regarding the bill permitting DCS to pay for services or facilities contracted by them, it was pointed out there was no definition of where the contracted beds would be located.  Rep. Noe suggested a resolution of this issue with a second reading amendment.

The bill passed with amendments, 9-3. The House debated for over an hour whether to adopt the report of the committee. The adoption of the committee report passed with a vote of 56-38.

The House Family, Children and Human Affairs Committee heard SB 287, a technical clean-up bill on the Department of Child Services sponsored by Rep. Noe and Rep. McNamara.  This legislation repeals obsolete references and outdated language, adds language from recent Indiana case decisions, aligns Indiana law with federal statutes and clarifies existing Indiana statutes.  The bill passed with two minor amendments which were adopted by consent, 11-1.

The Senate Judiciary Committee heard HB 1365 sponsored by Sen. Bray and Sen. M. Young on sentencing alternatives for youthful offenders, permitting a court with criminal jurisdiction to exercise dual jurisdiction of both the criminal and juvenile law when a juvenile has been waived to adult court. Rep. McNamara introduced an amendment, which removed dual juvenile and criminal jurisdiction from the bill.  The amendment establishes sentencing alternatives for juvenile offenders being sentenced after a conviction in an adult court.  The amendment provides that the adult court may: (1) impose a criminal sentence on the juvenile; (2) suspend the criminal sentence imposed; (3) order the juvenile to be placed in a juvenile facility of the IDOC, Division of Youth Services, if the department agrees to the placement; and (4) provide that the successful completion of the placement in the juvenile facility is a condition of the suspended criminal sentence.  The amendment also provides that when the juvenile becomes 18, the sentencing court must hold a review hearing.  The sentencing court, after the review hearing, may (1) discharge the offender if the sentencing court determines that the objectives of the sentence imposed have been met; (2) order execution of all or part of the suspended criminal sentence in an adult facility; or (3) place the offender in home detention, in a community corrections program, on probation, or in any other appropriate alternative sentencing program.  Rep. McNamara testified that Judge Chris Burnham, President of the Indiana Council of Juvenile and Family Court Judges and other juvenile stakeholders helped draft the amendment. Indiana Department of Corrections Division of Youth Services testified in support of the bill.  David Powell, Indiana Prosecuting Attorneys Council testified in favor of the amendment and also explained that the judge must decide at the time of sentencing whether to exercise this sentencing alternative.  The Indiana Public Defender Council testified in support of the amendment and also explained that adult facilities do not have the staffing or the programs to handle juvenile offenders as addressed by this bill.  The Indiana Juvenile Justice Task Force testified in favor of the bill and amendment. The bill passed as amended 8-1.

Judicial Administration

February 24, 2012 | Category: Administration

The House Judiciary Committee heard SB 152 on Allen circuit court sponsored by Rep. Pond, Rep. Morris, Rep. GiaQuinta, and Rep. Heuer.  This bill does not add any new judicial officers, but beginning July 1, 2013 changes a current commissioner position to a state paid magistrate while still maintaining the Title IV-D federal reimbursement. Judge Thomas Felts of Allen County Circuit Court testified in support of this bill. The bill passed with a vote of 11-0.

Miscellaneous

February 24, 2012 | Category: Miscellaneous

The House Judiciary Committee heard SB 402 on the Indiana Uniform Law Commission sponsored by Rep. Foley. 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), and provides for the reimbursement of expenses incurred by Commission members in attending the annual meeting of the NCCUSL. The bill passed with a vote of 10-0.

Probate

February 24, 2012 | Category: Probate

The House Judiciary Committee heard SB 176 regarding immediate detention orders sponsored by Rep. Foley.  This bill permits a court to order an individual to be transported to an appropriate facility for a preliminary medical and psychological evaluation if the court has reasonable grounds to believe that the individual has a mental illness, is dangerous, and is in immediate need of hospitalization and treatment. This bill also provides that the costs of transportation and care must be paid by the county if there were not reasonable grounds to believe that the individual had a mental illness and was dangerous. The bill passed, 11-0.

The House Ways and Means Committee heard SB 293, regarding inheritance tax sponsored by Rep. Turner, Rep. Welch, Rep. Grubb, and Rep. McMillin. The bill was amended in committee and now 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. The amended bill provides that IC 6-4.1- 1 through 9, and IC 6-4.1-12 do not apply to property interest transfers by a decedent whose death occurs after June 30, 2022.  Finally, the amended bill increases the exemption for Class A transferees (to $250,000), Class B and C transferees (to $25,000) for transfers resulting from the death of the decedent after June 30, 2012, amends the percentages for credits allowed, and amends the formula for the inheritance tax replacement amount for each county through June 30, 2022. The bill passed as amended 22-3.