General Information

January 30, 2015 | Category: General

This is the fourth 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 30, 2015 | Category: Civil

The Civil Law Committee heard SB 127 authored by Sen. Holdman on religious exemption in state and local contracts. The bill provides that any state and local contract with a religious-based organization executed after June 30, 2015, must include a provision authorizing the religious-based organization to give employment preference to individuals of a particular religion or to require all employees or applicants to conform with the organization’s religious tenets to the extent authorized under Title VII the Civil Rights Act of 1964. An amendment was adopted by consent making the bill requirements applicable to contracts with foreign corporations. The Indiana Catholic Conference testified in support of the bill. The amended bill passed 7-0.

The Civil Law Committee heard SB 211 authored by Sen. Patricia Miller on debt collection. The bill was prepared at the request of Attorney General Zoeller amending the deceptive consumer sales statutes to further consumer protection efforts. A representative from the Office of the Attorney General testified that the bill (1) defines “debt buyer;” (2) enhances the debt collector’s required disclosures to the debtor; and (3) raises the penalties for abusive collection practices to authorize a maximum of $25,000 for each violation (maximum penalty per violation per consumer remains $1,000). An amendment was adopted by consent clarifying the required disclosure provisions. The Indiana Association for Community Economic Development and the Indiana Banker’s Association testified in support of the bill. The Indiana Creditors Bar Association and the Indiana Collectors Association testified in opposition to the bill. The amended bill passed 8-0.

The Civil Law Committee heard SB 282 pertaining to unclaimed property and savings bonds authored by Sen. Walker. A representative of the Attorney General’s Office summarized the bill. The bill authorizes the Attorney General to process unclaimed savings bonds held for more than 20 years as unclaimed property. The bill also authorizes the Attorney General to claim unclaimed savings bonds held by the federal government if the bond was purchased in Indiana or held by an Indiana resident. The bill passed 8-0.

The Civil Law Committee heard SB 524 authored by Sen. Zakas on tax deeds and conveyance documents. This bill makes various changes to property tax statutes when real property is sold because of delinquent taxes. The bill requires certain notices involving tax sales to be sent by certified mail, return receipt requested. The bill also requires petitions for tax deeds to be verified by attaching documentation of all the petitioner’s efforts to send the statutorily required notices. Finally, the bill makes the safe harbor provision for technical deficiencies in mortgage deeds applicable regardless of when the deed was filed (current law applies the safe harbor provision only to deeds filed in 2007 and 2008). The bill was held for further review.

The House Judiciary Committee heard HB 1045, concerning recreational facility immunity. Author Rep. Morrison introduced this legislation, explaining that it applies to postsecondary educational institutions and specifies the duties and responsibilities of the users and operators of their recreational facilities. The bill establishes a complete defense to a civil action for operators who comply with those duties and responsibilities. He explained several of the new rules regarding posting signage for communicating rules at the facilities for users, as well as expectations of operators regarding maintenance and code compliance. Testifying in favor of the bill were representatives from: Independent Colleges of Indiana; Indiana State University; and, the Insurance Institute of Indiana. An amendment was introduced deleting the requirement that a supervisor must be on duty for every 175 users, and requiring only a supervisor be on duty when the facility is open. The amendment was adopted by consent, and the bill passed as amended 11-0.

The House Judiciary Committee heard HB 1456, establishing the servicemembers civil relief act, authored by Reps. Zent, Moseley, and Carbaugh. The Indiana SCRA supplements protections for servicemembers provided for under the federal SCRA. Generally, the Indiana SCRA provides servicemembers rights and protections regarding consumer transactions, contracts, and contracts with specific service providers (such as internet servicers, satellite radio services, and television services). Rep. Zent introduced an amendment addressing concerns expressed after last week’s testimony on the bill, and to ensure they duplicated the protections of existing federal law as much as possible. The amendment requires the Indiana National Guard to provide a list on its internet site that is searchable to determine whether an individual is on active duty for at least 30 days, as required by state law. It also requires the Guard to provide eligible members and dependents a list of state and federal rights they have under the servicemember civil relief acts. The amendment also provides that the Office of the Attorney General may bring a civil action against a person who knowingly and intentionally violates a provision of the act. Testimony was received in favor of the bill by the Office of the Indiana Attorney General. The amendment was adopted by consent, and the bill passed as amended 10-0.

Criminal Law

January 30, 2015 | Category: Criminal

The Senate Corrections and Criminal Law Committee heard SB 92, Sen. Schneider’s bill to enhance criminal penalties using deadly weapons.  As introduced, the bill established sentencing enhancements of 5 to 20 years if a deadly weapon, not just a firearm as provided under current law, is possessed during the commission of all offenses against the person, arson for hire, resisting law enforcement, burglary, or rioting. This provision was amended by consent to make it apply only if the deadly weapon is used, rather than merely possessed. The bill also provides that a sentence may be enhanced when a deadly weapon is possessed during the commission of controlled substance offenses, but this provision was also amended by consent to make it apply only if the deadly weapon is used, rather than merely possessed. The bill was also amended by consent to provide that sentencing enhancements for the use of a deadly weapon during the commission of an offense may not be suspended. The bill also makes a person a habitual offender if the state proves the person has been convicted of three prior unrelated felonies of any level. Legislative Services staff reported that the fiscal impact of the bill cannot be predicted with confidence. The bill passed as amended 8-1.

The Senate Corrections and Criminal Law Committee heard SB 164, Sen. Patricia Miller’s bill on crimes involving deadly weapons. The bill prohibits expungement for a person who has two or more convictions involving the unlawful possession or use of a deadly weapon. After testimony for and against the bill from prosecutors and public defenders, the Committee amended the bill by a vote of 6-3 to limit the expungement prohibition to persons who have “two or more felony convictions involving the unlawful use of a deadly weapon, not part of the same episode of criminal conduct.” The bill passed as amended 7-2.

The Senate Corrections and Criminal Law Committee resumed discussion of SB 261, on the appeals by the attorney general in criminal and juvenile cases. Author Sen. R. Michael Young presented two amendments that were consolidated into a single amendment and adopted. The amendment clarifies that the State may take an interlocutory appeal of the dismissal of part of the charges filed in a case. It also would provide that the state may initiate an appeal of a legal error in a sentence and may, if a defendant appeals his/her sentence, take a cross-appeal of the length of the sentence imposed. The amended bill passed 10-0.

The Senate Judiciary Committee heard SB 375, authored by Sens. Houchin and Head, on human trafficking and asset forfeiture. This bill allows a law enforcement agency to seize real or personal property, including a vehicle that is used by a person to commit, attempt to commit, or conspire to commit, facilitate the commission of; or escape from the commission of; an offense concerning human trafficking. This bill aligns Indiana law with federal law. The Attorney General’s Office testified in favor of the bill. An Indiana sheriff who investigates human trafficking testified about the effectiveness of forfeiture. The bill passed 9-0.

The Senate Judiciary Committee heard SB 433, authored by Sens. Tomes and Waltz, on shotguns. This bill repeals the prohibition against manufacturing, importing, selling, or possessing a sawed-off shotgun. It also provides for a 10-year sentence enhancement if a person possesses a sawed-off shotgun in violation of federal law while committing certain offenses. The National Rifle Association and Indiana State Rifle and Pistol Association testified in support of the bill. The bill passed 8-1.

The Senate Corrections and Criminal Law Committee heard SB 551, Sen. Waltz’s bill to establish crime fighting pilot projects in Marion, Lake, and Allen Counties, with an annual appropriation of $200,000 for each of the counties to be used only to pay overtime for officers assigned to a high crime district. Law enforcement officers from the chosen counties testified in support of the bill. Some committee members said they would vote to pass the bill, but wanted the pilot expanded to more counties. The bill passed 9-0.

The Senate Corrections and Criminal Law Committee heard SB 559, Sen. R. Michael Young’s bill to make a number of changes to crimes of violence. Sen. Young explained that the bill adds unlawful possession of a firearm by a serious violent felon to the definition of “crimes of violence.” The bill establishes new caps for consecutive sentences that result from a single episode of criminal conduct. Sen. Young explained that the changes are a result of unintended disproportion in the caps enacted in last year’s criminal law reform causing the maximum sentences for some of the new levels of felonies to be higher than the advisory sentences for the next higher felony level. The bill establishes a mandatory 20-year sentencing enhancement for a person who knowingly or intentionally points or discharges a firearm at a law enforcement officer while committing an offense. If the person is convicted of the charged offense, the jury will then resolve whether the State proved the pointing or shooting of the firearm at an officer beyond a reasonable doubt. The bill also makes a number of technical corrections in the penal code. After testimony in support of the bill from prosecutors and police officers, the bill passed 6-2.

The House Courts and Criminal Code Committee heard HB 1302, Rep. McMillin’s expungement bill. The bill addresses a number of issues concerning the IC 35-38-9 expungement remedy: (1) it expands the arrest expungement remedy to include criminal charges or delinquency allegations which did not lead to a conviction or adjudication; (2) it specifies that a person seeking to expunge a conviction is not required to pay a filing fee; and (3) it removes the certification requirement for the BMV driving record which must be attached to a conviction expungement petition. Rep. McMillin presented two amendments. The first, suggested by the Hoosier Press Association, would have expungement proceedings be open to the public until an expungement order is issued; the second would remove the requirement of notice to a victim in those cases in which expungement is mandatory if the petitioner establishes the requirements for expungement. Both amendments were adopted by consent. The Monroe Circuit Court and Tippecanoe Circuit Court clerks both testified about the increased expenses their offices have incurred to process expungement cases and encouraged the committee to not exempt expungement petitioners from paying standard filing fees, but the bill passed 12-0 without further amendment.

The House Courts and Criminal Code Committee heard HB 1531, Rep. Davisson’s bill on video conferencing by confined persons. The bill provides (1) court hearings by video conference for inmates in DOC facilities with video conferencing capacity, and (2) mental health evaluations of inmates in county jails ordered to be conducted via video conference with the mental health services provider. Rep. Davisson said the bill aims to reduce the expenses of transporting prisoners for hearings. Representatives from the DOC and the Association of Community Mental Centers testified in support of the bill, which passed 11-0.

The House Public Health Committee heard Rep. Kirchhofer’s HB 1614 on opioid prescriptions for pain management treatment. This bill requires the Indiana Board of Pharmacy or any licensing board, commission, or agency that controls, authorizes, or oversees controlled substance registrations, to adopt rules to establish standards and protocols for practitioners who prescribe opioid controlled substances for pain management treatment and provides that the rules may not be amended unless the proposed amendment has been approved by the medical licensing board. The bill was supported by the Indiana Medical Association, the Indiana Attorney General’s Office, and the Indiana Prescription Drug Abuse Task Force. The Indiana Podiatric Medical Association, the Indiana State Nurses Association, and the Indiana Veterinary Medical Association testified as to concerns with the bill. The committee held the bill for future action.

Family & Juvenile Law

January 30, 2015 | Category: Family/Juvenile

The Senate Judiciary Committee heard SB 324, authored by Sens. Head and L. Brown, on various child support matters. This bill makes various changes to family and juvenile law concerning: (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. This bill also repeals the Uniform Interstate Family Support Act currently in effect and replaces it with an updated version of the act. Sen. Head explained that Indiana is required, under the federal Preventing Sex Trafficking and Strengthening Families Act, to adopt the newest version of the Uniform Interstate Family Support Act (UIFSA) passed in 2008 by July 1, 2015 in order to continue receipt of approximately $275 million dollars of federal Title IV-D monies. DCS testified in support of the bill. The Committee adopted a technical amendment by consent. The amended bill passed 8-1.

The House Courts and Criminal Code Committee heard Rep. McMillin’s HB 1304 on various criminal law issues. This bill:

  • requires tracking the number of direct file charges against juveniles in adult court by the Indiana Criminal Justice Institute;
  • amends the forensic diversion program to include persons with intellectual disabilities;
  • expands treatment in lieu of or after conviction by courts with alternative evidence based methods;
  • raises the minimum age for non-presumptive waiver under Ind. Code § 31-30-3-2 from 14 to 16 years of age, non-presumptive waiver under Ind. Code § 31-30-3-3 from 16 to 17 years of age, and 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;.
  • amends the presumptive waiver statute under Ind. Code § 31-30-3-5 to increase the age for waiver from 16 to 17 years of age;
  • requires a law enforcement agency to record custodial interrogations of juveniles, except in schools if it would impair the administration of school functions;
  • removes authority to hold a runaway 24 hours (excluding Saturdays, Sundays and non-judicial days) before and after a detention hearing;
  • amends Ind. Code § 33-40-6-4 to provide a county auditor may request reimbursement from the Public Defender Commission for 100% of the county’s expenditures for juvenile defense services;
  • creates a court appointed special advocate to assist persons with intellectual disabilities charged in a criminal offense and for payment of a user fee for this service; and,
  • allows a court to suspend the sentence of certain habitual offenders if the habitual offender is in a court approved substance abuse treatment program.

Numerous people spoke in favor of the legislation. The bill was held until next week to amend the following bills into this legislation:

  • HB 1059: expanding the definition of a runaway to  include a child leaving a specific location previously designated by the child’s parent, guardian or custodian in addition to home and expand the crime of false reporting;
  • HB 1195: authorizing the use of Vivitrol to treat opioid or alcohol addiction as a condition of parole, probation community corrections, pretrial diversion or participation in problem solving courts;
  • HB 1389: including provisions for treatment of persons with intellectual disabilities who commit crimes; and,
  • HB 1595: removing the authority of courts to place repeat truants and runaways in secure detention and/or DOC.

Judicial Administration

January 30, 2015 | Category: Administration

The Senate Judiciary Committee heard Sen. Grooms’ SB 422 on court security fees and funds. This bill requires the clerk of a circuit court and the clerk of a city or town court to collect a court security fee of $2 in each action in which a person is required to pay a criminal costs fee or a civil costs fee. The bill also requires the clerks to distribute the court security fees collected to the Auditor of State. The court security fees will be divided equally to each county and deposited in each county’s court security fund. The court security fund in each county may pay for the costs of installing, operating, maintaining, and upgrading security measures, plans, procedures, and systems in and around courtrooms and buildings that contain courtrooms located in the county. The author estimated that the worst-case scenario is that each county would receive $8,000. The bill was amended setting a 4-year sunset provision and to require the court security fee to go directly to a court security fund run by the Indiana Judicial Center to administer and distribute as grants. Jane Seigel, Executive Director of the Indiana Judicial Center, testified that the Center would be happy to administer the fund, and that the Supreme Court has placed an emphasis on court security. Judge Mary Willis, Henry Circuit Court 1, testified on behalf of the Indiana Judges Association in favor of the bill. A representative for the Association of Indiana Counties and the Clerks’ Association also testified in support of the bill. The amended bill passed 7-2.

Probate Law

January 30, 2015 | Category: Probate

The Civil Law Committee heard SB 56 authorizing legacy trusts authored by Sens. Steele and Bray. The bill establishes procedures for creating a legacy trust that protects the transferor’s assets from creditors while allowing the transferor to retain an interest in the trust. The bill allows claims against the trust for fraudulent transfers, enforcement of certain child support orders and the division of property in a marriage dissolution or legal separation action. The bill also specifies that the rule against perpetuities does not apply to legacy trusts. A technical amendment was adopted by consent. The Indiana State Bar Association, Probate, Trust and Real Property Section testified at length in support of the bill. Extensive testimony in opposition to the bill was heard from the Indiana Banker’s Association, the Indiana Creditors Union League, and legal practitioners. Additional amendments were discussed. The bill was held for further review.

The Civil Law Committee heard SB 291 authored by Sens. Zakas and Steele recommending that the Legislative Council reestablish the probate code study commission. Two amendments were adopted by consent. The first amendment authorizes the commission to meet as needed. The second amendment removes the fiscal aspects of the bill. The Indiana State Bar Association, Probate, Trust and Real Property Section testified in support of the bill. The Indiana Banker’s Association also testified in support of the bill but recommended that the commission composition be reviewed to ensure balance. The amended bill passed 9-0.