General Information

April 2, 2015 | Category: General

This is the thirteenth weekly installment of the Legislative Update for the 2015 legislative session. If you are interested in reading the text of any bill introduced this session, you may find all of the bill information here.

This week the Senate and House committees heard the following bills of interest to the judiciary:

Civil Law

April 2, 2015 | Category: Civil

The House Judiciary Committee heard SB 524 concerning tax deeds and conveyance documents, sponsored by Rep. Steuerwald. This bill provides that when a county auditor sends out certain notices for a tax sale by certified mail, the notices must be sent by certified mail, return receipt requested. The bill also requires that a verified petition for a tax deed to real property acquired in a tax sale must include copies of various notices sent by the petitioner, copies of certified mail mailing receipts, copies of certified mail return receipts, returned mailing envelopes, and evidence used by the petitioner to ascertain the owner of property and any other persons with a substantial property interest of public record in the property. The bill also provides that a tax deed is not prima facie evidence of the validity of a tax sale, if the petitioner for the tax deed fails to include with the petition the copies of notices, copies of mailing receipts, return receipts, returned mailing envelopes, and copies or descriptions of the evidence used to ascertain the owner and other persons having a substantial property interest of public record in the property. It also provides that a tax deed that does not comply with certain filing requirements is validly recorded, regardless of when it is recorded. An amendment was introduced concerning serial tax delinquencies, which was adopted by consent.  A second amendment was introduced concerning the exemption of certain documents from production, and a third amendment was introduced allowing a tax deed to act as prima facie evidence of a sale in certain instances. Extensive discussion and testimony from the Marion County auditor, a local tax attorney, the Association of Indiana Counties, and an attorney from the probate, trust and real property section of the Indiana State Bar Association was received.  There was no vote on the second or third amendments, and the bill was held.

The House Judiciary Committee heard SB 531 concerning various tax sale matters sponsored by Rep. Price. Author Sen. Head explained that it amends the tax sale statute to reflect current caselaw and makes procedural changes to make the process more efficient.  Regarding the procedural changes, the bill provides that:

  1. a purchaser of real property by an installment land contract may request notice of the tax sale list;
  2. adds an alternative provision for a county executive to transfer a tax sale property to a nonprofit entity, and for purposes of these provisions, defines the “county executive” of Marion County to mean the board of commissioners (consisting of the county auditor, county treasurer, and county assessor);
  3. a county treasurer may use money held on a person’s behalf in the tax sale surplus fund to pay property taxes and special assessments that become due during the tax sale redemption period;
  4. a court may consider a petition for a tax deed without conducting a hearing if there are not any written objections filed;
  5. the amount required for redemption of property includes all taxes, assessments, interest, and penalties that are delinquent after the sale; and,
  6. a political subdivision may conduct an electronic auction of surplus real property held by the political subdivision.

The bill also repeals the following:

  1. a provision authorizing a county to adopt an ordinance allowing a county auditor to accept a bid that is less than the minimum bid normally required by the tax sale statute;
  2. a provision requiring the State Board of Accounts to specify a form of tax deed to use when a grantee other than a purchaser takes the tax deed;
  3. several provisions that specify what action to take if the tax deed is ineffectual to convey title to tax sale property;
  4. a provision specifying how a grantee of a tax deed recovers money owed to the grantee in the context of an action to quiet title filed by the grantee; and,
  5. an obsolete provision that allowed a county to adopt an ordinance requiring the county treasurer to waive certain penalties and interest on delinquent property taxes.

The bill also makes additional conforming changes. Testimony was received supporting the bill by a representative from Synergistic Resources Integration, a company that conducts tax sales throughout the state, who explained several provisions of the bill.  The bill passed 8-0.

The Senate Civil Law Committee heard HB 1015, sponsored by Sens. Merritt, Head and Broden, allowing a business entity to incorporate as a benefit corporation under Indiana law. A benefit corporation allows a company to make a profit while protecting non-profit like objectives, to promote “social entrepreneurship.” The bill passed 6-0.

The Senate Civil Law Committee heard HB 1045, sponsored by Sen. Ford, creating recreational facility immunity. This bill specifies the duties and responsibilities of the users and the operator of a recreational facility operated by an elementary, secondary, or postsecondary educational institution. It also specifies that the operator of such a recreational facility who fulfills the operator’s duties and responsibilities has a complete defense to a civil action. The bill was amended to clarify the definition of “recreational user” and limit the immunity to those using the facility for its primary purpose. The amended bill passed 7-0.

The Senate Civil Law Committee heard HB 1050, sponsored by Sen. Glick, on actions against a surveyor. This bill provides that an action to recover damages for a deficiency in a land survey must be brought against the surveyor not later than 10 years after the date of the survey. The bill also sets forth requirements for a notice of survey letter to an adjoining landowner. It also provides that an action for damages for a survey completed before July 1, 2015, may not be brought against a surveyor unless the action is commenced within 15 years after the date of the survey. The statute of limitations was amended for all claims to 10 years after the date of the survey. The amended bill passed 8-0.

The Senate Civil Law Committee heard HB 1102, sponsored by Sen. Steele, on patent protection. This bill prohibits a person from asserting a claim of patent infringement in bad faith and provides that a court may, upon motion, require a person to post a bond if the target establishes a reasonable likelihood that the person has made an assertion of patent infringement in bad faith. It also provides that a claim of patent infringement is not made in bad faith if certain conditions apply to the person making the claim. The legislation also establishes remedies, damages, and civil penalties. The bill was amended to exempt from the provisions regarding bad faith assertions of patent infringement: (1) approved post-secondary educational institutions; (2) technology transfer organizations owned by or affiliated with approved post-secondary educational institution; and (3) licensees holding patents from postsecondary educational institutions or technology transfer organizations owned by or affiliated with postsecondary educational institutions. A representative of Purdue University testified in favor of the amendment. The bill passed 7-1.

The Senate Civil Law Committee heard HB 1358, sponsored by Sen. Steele and Sen. Broden, on garnishment of state tax refunds. This bill provides that if a debt has been reduced to a judgment in Indiana and the judgment has not been satisfied, set aside, or discharged in bankruptcy, the judgment creditor may garnish a state tax refund otherwise due to the debtor. It specifies the procedures that the judgment creditor must follow in obtaining the garnishment from the Department of State Revenue and allows a writ of garnishment to be electronically filed with the Department of State Revenue. The bill was amended to exclude from garnishment debt subject to a repayment plan if the repayment plan has not been breached. The amendment also exempts 50% of a joint tax refund from garnishment if there is no objection to the garnishment, and establishes a procedure to exclude from garnishment that portion of a tax refund attributable to a spouse of the debtor who is not obligated to pay the debt. The amended bill passed 8-0.

Criminal Law

April 2, 2015 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 8, sponsored by Rep. Cox and Rep. Steuerwald, on a death penalty aggravator, making a murder eligible for the death penalty if the murder involved decapitating or attempting to decapitate the victim while the victim was still alive. A representative of the Indiana Catholic Conference testified against the death penalty generally. The bill passed 10-0.

The House Courts and Criminal Code Committee heard SB 385, sponsored by Rep. McMillin and Rep. Truitt, on murder sentencing; aggravating circumstance. This bill permits the state to seek the death penalty or a sentence of life without parole for a murder committed in a building primarily used for educational purposes if the murder is committed on school property or in a building owned by a post-secondary educational institution and at a time when children are likely to be present (for a building on school property) or classes are in session (for a building owned by a post-secondary educational institution). This bill also authorizes the state to seek the death penalty or a sentence of life without parole for a murder committed in a building primarily used for religious worship if the murder is committed at a time when persons are likely to present for religious worship or education. A representative of the Indiana Catholic Conference and a representative from the Public Defenders Council testified against the bill. The bill was held to clarify language issues.

The House Courts and Criminal Code Committee heard SB 559, sponsored by Rep. Frizzell, on crimes of violence. This bill adds unlawful possession of a firearm by a serious violent felon to the definition of “crimes of violence”. It also establishes new caps for consecutive sentences that result from a single episode of criminal conduct. This legislation defines “emergency medical services provider”. It also establishes a 20 year sentencing enhancement for a person who points or discharges a firearm at an individual whom the person knows or reasonably should have known was a police officer.  A representative from the Public Defenders Council testified against the bill because of the mandatory criminal sentence for the police officer enhancment. The bill was amended to change the police officer enhancement to “may” instead of “shal” for 5 to 20 years. The bill was also amended to provide that a person is a habitual offender if the state proves the person has been convicted of three prior unrelated felonies of any level. A police officer and a prosecutor from Dearborn County, spoke in favor of the police officer enhancement. The amended bill passed 9-0.

The Senate Appropriations Committee heard HB 1006, sponsored by Sen. Steele and Sen. Young, on criminal justice funding. This bill was amended to provide:

  1. the DOC to compile certain information and submit a quarterly report to the state budget committee and a monthly report to the Justice Reinvestment Advisory Council;
  2. provides that counties or courts wishing to apply to the DOC for financial aid shall apply through the Community Corrections Advisory Board and specifies the purposes for which the DOC may award financial aid;
  3. permits a residential work release facility to be physically connected to a jail if total separation between the facilities is maintained;
  4. repeals the county corrections fund that provides funding to each county for operation of the county’s jail, jail programs, or other local correctional facilities or community based programs;
  5. removes the provision in the bill that would require the Indiana Judicial Center to award grants to assist with community corrections programs in each county;
  6. provides that the Executive Director of the Indiana Judicial Center is to serve as the chairperson of the Justice Reinvestment Advisory Council;
  7. establishes the mental health and addiction forensic treatment services account within the statutes governing the Division of Mental Health and Addiction rather than the statutes governing corrections (under current law);
  8. provides that the Division of Mental Health and Addiction may use money in the account to fund grants and vouchers for mental health and addiction forensic treatment services;
  9. requires a probation officer to consult with community corrections in preparing a presentence report;
  10. permits a court to delegate the terms of placement in community corrections to the community corrections program director, and permits the director to change the terms of placement or reassign a person in community corrections;
  11. permits the sheriff to receive a community corrections grant as a per diem or as reimbursement for the medical expenses of an incarcerated person;
  12. establishes the duties of the advisory council.

Representatives of several agency service providers, Universal Health, and the Probation Officers Professional Association of Indiana testified in support of the bill. The amended bill passed 11-0.

The Senate Health and Provider Services Committee heard HB 1269 on mental health matters sponsored by Sen. Patricia Miller and Sen. Crider. Author Rep. Clere reported that the bill addresses a number of mental health issues including: (1) authorizing the DOC, county or health navigator to serve as a representative of inmates for the purpose of applying for Medicaid eligibility, (2) requiring the DOC, county or health navigator to assist inmates apply for Medicaid and to secure treatment services upon release or discharge from incarceration, (3) authorizing a community mental health center to assist DOC and jail offenders apply for Medicaid, (4) establishing that a person found to be Medicaid eligible who is incarcerated in DOC or a jail shall have their Medicaid participation suspended for a period not to exceed three years before participation is terminated unless the individual is receiving immediate medical attention, and (5) requiring a person who is arrested and taken into custody to be assessed, subject to available funding, by a qualified and licensed mental health or addictions professional or a provider certified or licensed by DMHA to determine if the person has a mental illness or substance addiction, with required reporting of assessment results and providing for re-assessments until release. Testimony was heard in support of this bill from the Indiana Council of Community Mental Health Centers, Mental Health America of Indiana, Children’s Coalition of Indiana, Recovering Kids and Families, Indiana University Health, and the Indiana School Counselor Association. The bill was held until next week for amendment.

The Senate Appropriations Committee heard HB 1304 on various criminal law issues sponsored Sen. Steele and Sen. R. Michael Young. The committee adopted three amendments. Two of the amendments made language changes and technical corrections. The third amendment, introduced by Sen. Kenley, excludes certain offenders from treatment in lieu of prosecution or incarceration and removes provisions providing for 100% state reimbursement to chief public defenders.

The amended bill passed 11-0, and includes the following provisions:

  • Amends the forensic diversion program (pre-conviction and post-conviction) to make persons with intellectual disabilities, developmental disabilities, and autism spectrum disorders eligible for participation;
  • Authorizes a drug abuser or alcoholic charged with or convicted of a felony to request treatment in lieu of prosecution and imprisonment under certain conditions;
  • Authorizes the voluntary and involuntary commitment of alcoholics and drug abusers to DMHA;
  • Authorizes a court alcohol and drug program under IC 12-23-16 or the clerk of a court to collect program user fees;
  • Authorizes a court to appoint a court appointed forensic advocate to assist persons with intellectual disabilities or autism spectrum disorders charged in a criminal offense and for payment of a user fee for this service;
  • Amends Ind. Code § 35-50-2-8 to allow a court to suspend the sentence of certain habitual offenders if the habitual offender is in a court approved substance abuse treatment program and if the offender completes the program, to deduct the time spent in treatment from the fixed term of imprisonment;
  • Authorizing the use of a federal Food and Drug Administration approved long acting, nonaddictive medication to treat opioid or alcohol addiction as a condition of parole, probation community corrections, pretrial diversion or participation in problem solving courts;
  • Excludes possession of rolling papers and raw materials from the crime of possession of paraphernalia and makes the knowing and intentional possession of paraphernalia a Class C misdemeanor and increases the penalty to a Class A misdemeanor if the person has a prior unrelated judgment or conviction;
  • Makes it a Level 6 felony to possess a hypodermic needle with intent to commit a controlled substance offense (current law makes it a crime only if committed with intent to violate the legend drug act);
  • Requires the Criminal Justice Institute to track, by age and offense, the number of presumptive and permissive waivers of jurisdiction involving juveniles in adult court to evaluate the feasibility of increasing the age in these cases from 16 to 17 years;
  • Raises the minimum age a child can be charged with murder if committed by an adult and waived from 10 to 12 years of age under Ind. Code § 31-30-3-4;
  • Adds a new article to the juvenile code to require a law enforcement agency to record custodial interrogations of juveniles, except in schools, if it would impair the administration of school functions;
  • Specifies that a juvenile may not be restrained in court unless the court has determined on the record that the juvenile is dangerous or potentially dangerous;
  • Removes the authority of a court to hold truants and runaways for 24 hours (excluding Saturdays, Sundays and nonjudicial days) before and after a detention hearing; and
  • Establishes that a child commits a delinquent act, runaway, when the child leaves a specific location previously designated by the child’s parent, guardian or custodian in addition to home.

Family & Juvenile Law

April 2, 2015 | Category: Family/Juvenile

The House Judiciary Committee heard SB 324 concerning various child support matters sponsored by Rep. McNamara and Rep. Kirchhofer. Author Sen. Head explained that it repeals the Uniform Interstate Family Support Act currently in effect and replaces it with an updated version of the act. The bill also makes various changes to family and juvenile law concerning the following: (1) parties entitled to file a paternity action; (2) petitions for child support; (3) petitions for adoption; (4) adoption decrees; (5) duties of the child support bureau; and, (6) costs of services for children and payments of child support. An amendment was introduced proposing a technical correction, and adopted by consent. Testimony supporting the bill was received from a representative from the Department of Child Services explaining that federal funding would be secure by updating the Uniform Family Support Act provisions in the bill. The amended bill passed 9-0.

Judicial Administration

April 2, 2015 | Category: Administration

The House Judiciary Committee heard SB 2 concerning service of process sponsored by Rep. Mayfield and Rep. Cox. Author Sen. Steele explained that this bill clarifies the cost of services to be paid from court fees and addresses service/process issues. This bill specifies that “registered or certified mail” includes any means of delivery that provides a return receipt. The bill also provides that the cost of service to not more than two parties may be paid from court fees and requires a person who requests a circuit court clerk to send an additional mailing by registered or certified mail to provide: (1) an addressed envelope with postage prepaid; (2) the United States Postal Service or other forms for registered or certified mail; and (3) the United States Postal Service fee or other fee for service by registered or certified mail. Rep. Mayfield also explained that that this legislation will save counties money by clarifying the number of mailings permitted with each filing.  The bill passed 10-0.

The House Courts and Criminal Code Committee heard SB 523, sponsored by Rep. Frizzell and Rep. Behning, on Marion County small claims courts. This bill was amended to:

  1. make the small claims courts in Marion County courts of record after July 1, 2018;
  2. make small claims courts full time courts before 2018 unless the township board objects, and full-time courts after 2018 by operation of law;
  3. sets the annual salary of a full time small claims court judge at 80% of the salary of a Marion County circuit or superior court judge;
  4. increase the jurisdictional amount to $8,000 on July 1, 2018;
  5. require courts to use the Odyssey case management system; and,
  6. define “low caseload court” and require certain fees to be transferred to low caseload courts.

The amended bill passed 10-0.

The Senate Appropriations Committee heard HB 1110, sponsored by Sens. Steele, Grooms, and Randolph, adding various magistrates. This bill allows:

  1. the judges of the Clark circuit court to jointly appoint a third full-time magistrate;
  2. the judge of the Greene circuit court and the judge of the Greene superior court to jointly appoint one full-time magistrate;
  3. the judges of the Madison circuit court to jointly appoint a second full-time magistrate;
  4. the judges of the Marion superior court to appoint four additional full-time magistrates after December 31, 2015;
  5. the judge of the Porter circuit court to appoint one full-time magistrate;
  6. the judge of the Vanderburgh circuit court to appoint a second full-time magistrate.
  7. The judge of the St. Joseph circuit court to appoint one additional full-time magistrate, without considering the political affiliation of a candidate for magistrate, for a total of three full-time magistrates; and,
  8. The judges of the St. Joseph superior court to jointly appoint two additional full-time magistrates for a total of four full-time magistrates, not more than two of whom may be from the same political party.

This bill also allows a magistrate to approve:

  1. criminal plea agreements;
  2. agreed settlements concerning civil matters; and
  3. decrees of dissolution, settlement agreements, and any other agreements of the parties in domestic relations actions or paternity actions.

Additionally, it provides that meetings of the St. Joseph Judicial Nominating Commission must be held at a place in the St. Joseph County courthouse or another building owned or operated by St. Joseph County in South Bend as the clerk of the St. Joseph superior court may arrange. The bill was amended by consent to remove the authority of the Sullivan circuit and superior court judges to jointly appoint a full-time magistrate as of July 1, 2016 and provides that the term of a full-time magistrate appointed by the Sullivan circuit and superior court judges ends not later than July 1, 2016. The amendment also urges the legislative council to assign to a study committee the topic of the appropriate number of judges in Pulaski County. Individuals from Sullivan County testified against the bill. The amended bill passed 11-0.

Probate Law

April 2, 2015 | Category: Probate

The House Judiciary Committee heard SB 355 concerning various probate and trust matters sponsored by Rep. Koch.  Author Sen. Steele introduced an amendment concerning attorneys in fact which was adopted by consent.  As amended, the bill provides that a trust may incorporate by reference a document that exists at the time the trust is executed. The bill also specifies that funeral expenses and expenses of a tombstone are expenses of administration. It expands the definition of “person” under the probate code to include governmental entities and other legal entities. The bill provides that a non-probate transfer to a testamentary trust: (1) is valid upon the will being admitted to probate; and (2) is not subject to claims against the probate estate. It allows a governmental entity or business entity (in addition to an individual) to be a transfer on death beneficiary of an automobile or a watercraft. The bill also allows a governmental entity or business entity (in addition to an individual) to be appointed a health care representative and amends the order of priority of persons who may control the disposition of a decedent’s body. The bill provides that a power of attorney may delegate the authority of a parent or guardian with respect to the health care of a minor or protected person.  It adds that an attorney in fact is entitled to judicial review and settlement of an account. Lastly, the bill provides that absent fraud, misrepresentation, inadequate disclosure, or failure to provide proper notice, an attorney in fact is discharged from all liability as to the transactions in the accounting if proper notice is provided of the court’s approval of the accounting.  An attorney with the Probate Trust and Real Property Section of the Indiana State Bar Association testified in support of the bill. The amended bill passed 9-0.