General Information

January 16, 2015 | Category: General

This is the second 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

January 16, 2015 | Category: Civil

The House Judiciary Committee heard HB 1011, authored by Rep. Torr, on passenger restraint systems. Rep. Torr introduced this bill explaining that it repeals the current provision that failure to comply with safety belt laws and child passenger restraint system laws does not constitute fault or contributory negligence. The bill also prohibits the admission of evidence of failure to comply with safety belt laws in civil actions to mitigate damages. Rep. Torr explained the intent of the bill is to allow judges to decide whether to admit evidence about an injured party wearing a safety belt at the time of an accident.  An attorney with the Indiana Trial Lawyers Association testified against the bill, discussing several public policy concerns about the burden shifting to victims of accidents. Another Indiana Trial Lawyers Association attorney also testified against the bill, noting that mitigation of damages usually occurs after an injury has occurred and that this will establish a new concept permitting mitigating issues to be introduced before the injury is incurred.  A representative of the Insurance Institute of Indiana testified supporting the bill, explaining that seatbelt usage nationally is approximately 83%, that the bill is reverting to common law where the judge and jury decide the admissibility of the statutory seatbelt duty, and that the mitigation of damages is consistent with Indiana’s comparative fault scheme.  A representative of State Farm Insurance testified in support of the bill to encourage seat belt use. Representatives from the Defense Trial Counsel of Indiana, the Indiana Manufacturers Association, and a local defense attorney also testified in support of the bill. Rep. Torr withdrew the bill to consider whether to do a strip and insert to repeal the mandatory seatbelt law.

The House Judiciary Committee heard HB 1050, authored by Rep. Ober and Rep. McMillin, on actions against a surveyor. Rep. Ober introduced this bill, and explained that it 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 providing a notice of a survey letter to an adjoining landowner. The bill 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.  A representative from the Indiana Society of Professional Land Surveyors testified supporting the bill, explaining that the language in the bill including the notice to adjoining landowners provides parties an opportunity to timely take action potentially impacting their property and addressed concerns about the effectiveness of the notice by requiring the recording of the survey. The bill passed 12-0.

Criminal Law

January 16, 2015 | Category: Criminal

The Senate Corrections and Criminal Law Committee heard SB 8, Sen. Steele’s bill to amend the death penalty statute, I.C. 35-50-2-9, to add decapitation or attempted decapitation of the victim as a death penalty aggravator. In discussion, Committee members agreed with Sen. Steele that decapitation might possibly be found to not be incorporated in the present death penalty aggravators, although its addition would arguably be as much a clarification as an addition. The bill passed 9-0.

The Senate Corrections and Criminal Law Committee heard SB 37, Sen. Bray’s bill to amend the possession of paraphernalia statute by removing possession of “raw material” as a basis for liability. Several amendments to the bill were presented by Sen. Bray and adopted by consent: (1) “rolling paper” was defined and removed from the paraphernalia definition; (2) the I.C. 35-48-4-3 Class A infraction for possession of paraphernalia without any “knowingly” or “intentionally” requirement was deleted from the statute, so that after the amendment the statute would contain only the Class A misdemeanor of “knowingly” or “intentionally” possessing paraphernalia; and (3) I.C. 16-42-19-18 in the Legend Drug Act was amended to make it a first-offense Level 6 felony, and a second-offense Level 5 felony for a person with intent to violate the Legend Drug chapter or to commit a drug offense in I.C. 35-48-4, to possess a syringe adapted to use either a controlled substance or a legend drug. Sen. Bray said the syringe amendment was prompted by the Dec. 9, 2014 Court of Appeals decision Bookwalter v. State (holding that possession of a syringe intended to inject heroin was not a violation of the Legend Drug Act syringe offense, because heroin is not a legend drug).  A representative from the Public Defendesr Council testified in support of the bill, and a representative of the Prosecuting Attorneys Council testified that the Council was neutral on the first two amendments, but was in favor of the third amendment about syringes. The bill passed as amended 9-0.

The Senate Corrections and Criminal Law Committee heard SB 173, Sen. R. Michael Young’s bill to establish a DOC specialized vocational program.  Sen. Young explained that the bill would require the DOC to establish a program to train minimum-security offenders in trades such as truck driving, manufacturing, plumbing, heating, and air conditioning. Sen. Young said that the Department of Workforce Development had identified these trades as the ones for which more workers are needed. The program would allow the offenders admitted to it to receive in-the-field training outside DOC facilities.The bill was amended by consent at the request of the DOC to make the program discretionary rather than mandatory. The Committee discussed but rejected a suggestion from the Prosecuting Attorneys Council that standards, such as program ineligibility for anyone convicted of a “crime of violence,” be added to the bill to help define the bill’s provision that persons posing a “security risk” were not eligible for the program. The bill passed as amended 9-1.

The Senate Corrections and Criminal Law Committee heard SB 174, Sen. R. Michael Young’s bill to make the application of the 2014 sentence modification statutory changes retroactive to crimes committed before July 1, 2014.  Sen. Young noted that there was disagreement in the criminal justice system about the issue and that several appeals about it are pending. The disagreement was manifested by the testimony of Larry Landis of the Public Defenders Council, who supported the bill and said he had thought last year’s legislation made it applicable to pre-July 1, 2014 crimes, and the testimony of David Powell of the Prosecuting Attorneys Council in opposition to the bill that the Council interpreted last year’s legislation as making the 2014 modification change inapplicable to crimes committed before July 1, 2014.  Mr. Powell also urged the Committee to undo the 2014 elimination of the prosecutor’s consent requirement, pointing out that the amended law increases the numbers of modification hearings, at which victims are obliged to appear, sometimes by subpoenas issued by the petitioner.  The Floyd County Chief Deputy Prosecutor also testified in opposition to the bill, observing that if a judge schedules a hearing on a modification petition he is obliged to notify the victim and to have the victim appear at the hearing to oppose the modification, all of which is extremely stressful for victims. A crime victim who accompanied the prosecutor testified as to the stress she felt at having to encounter at a modification hearing the person who had violated her. After Committee discussion, Sen. Young said he was amenable to having a provision inserted in the bill on second reading to avoid subpoenas to victims from petitioners.  An amendment proposed by Sen. Steele to have the bill take effect on passage was adopted by consent, and the bill passed as amended 9-0.

Family & Juvenile Law

January 16, 2015 | Category: Family/Juvenile

The Senate Judiciary Committee heard SB 352 pertaining to identifying information for adoptions authored by Sen. Steele and Sen. Delph. Sen. Steele stated that the bill authorizes adoptees adopted between 1941 and 1993 to access their own adoption information to the same extent as adoptees adopted before 1941 and after 1993. Testimony was taken in support of this bill by several adoptees and a biological parent whose child was adopted. The Committee also heard testimony in opposition to the bill arguing that current law provides a mechanism for biological parents to allow access to their information by their adopted children. The bill passed 8-2.

Judicial Administration

January 16, 2015 | Category: Administration

The Senate Judiciary Committee heard SB 122 authored by Sen. Becker and Sen. Tomes, pertaining to a Vanderburgh Circuit Court magistrate. The bill was prepared by the Interim Study Committee on the Courts and Judiciary. This bill authorizes the Vanderburgh Circuit Court to add a second magistrate. This matter was heard and approved last year by this Committee but was held for further consideration during the budget year. The bill passed 9-0 and was recommitted to Senate Appropriations.

The Senate Judiciary Committee heard SB 137 authored by Sen. Randolph and Sen. Tomes regarding magistrates and criminal trials. This bill requires the elected circuit or superior court judge, rather than a magistrate, to preside over a criminal trial or sentencing hearing if the defendant so requests in writing no later than 10 days after the omnibus date. An amendment was adopted by consent to remove the word “elected” to allow for other circumstances in which judges are placed on the bench. The bill was held for further review.

The Senate Judiciary Committee heard SB 217 on service of process fees collected by a sheriff authored by Sen. Boots. This bill authorizes the sheriff to collect a fee of $25 (the current fee is $13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff. The bill also removes the current limit on charging a process fee only one time per case for the duration of the case. The Indiana Sheriffs’ Association and the Association of Indiana Counties testified in support of the bill. An amendment was adopted by consent providing more guidance on the language removing the one-time fee per case to authorize the sheriff to charge a second process fee for post-judgment service of process in each case. The amended bill passed 7-2.

Miscellaneous

January 16, 2015 | Category: Miscellaneous

The Senate Civil Law Committee heard SB 171, authored by Sen. Bray and prepared by the Code Revision Commission, on the update of federal law citations. This bill makes technical corrections to federal law citations throughout the Indiana Code. The bill passed 6-0.

The Senate Civil Law Committee heard SB 199, authored by Sen. Bray and prepared by the Code Revision Commission, on substantive problems in the Indiana Code. This bill resolves various nontechnical conflicts and problems not suitable for resolution in the annual technical corrections bill, including statutes that have been both amended and repealed, ambiguous language and references, faulty definitions, and reference to defunct entities. The Committee adopted two amendments. The Indiana Association for Marriage and Family Therapy spoke in favor of the first amendment removing a second test for licensing of a marriage and family therapist. The second amendment corrected an additional nontechnical mistake. The amended bill passed 9-0.