General Information

February 13, 2015 | Category: General

This is the sixth 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

February 13, 2015 | Category: Civil

The Senate Judiciary Committee heard Sen. Tomes’ SB 98 on lawsuits against gun manufacturers. This bill prohibits a person from bringing or maintaining certain actions against a firearms manufacturer, ammunition manufacturer, trade association, or seller, and makes the prohibition retroactive. After receiving testimony, the bill passed 7-1.

The Senate Civil Law Committee heard Sen. Bray’s SB 172, enacting the Uniform Voidable Transactions Act. This bill governs the ability of a creditor to nullify certain transfers made by a debtor. The Committee adopted an amendment that does not change the effect of the bill, but amends current law instead of adding a new section of law. A representative of the Uniform Law Commission testified in favor of the bill. The amended bill passed 8-0.

The Senate Civil Law Committee heard SB 306, authored by Sen. Bray and Sen. Head, on limited liability arising from  trespassing. This bill provides that a person who possesses any fee, reversionary, or easement interest in real property, including an owner, a lessee, or another lawful occupant of real property, does not owe a duty of care to a trespasser, except to refrain from willfully or wantonly injuring the trespasser, after the trespasser has been discovered, or an undiscovered trespasser; on the real property possessed by the person. It also provides that a person who possesses real property may be subject to liability for bodily injury to or the death of a trespasser who is a child under certain circumstances. The bill was amended to codify current case law.  Representatives from State Farm, Indiana Farm Bureau, Indiana Chamber of Commerce, Indiana Apartment Association, Indiana Manufacturers Association, Indiana Railway Association, among others, supported the bill. The amended bill passed 8-0.

The Senate Civil Law Committee heard Sen. Head’s SB 373 on funding of lawsuits. This bill establishes a procedure by which a company may provide funding to the plaintiff in an action in exchange for the contingent right to receive a part of the potential proceeds of the action. It also requires a company that offers funding to plaintiffs to register with the Secretary of State. Representatives from the Oasis Legal Finance and American Legal Finance Association, suppliers of this type of funding, testified in support of the bill. A representative of the U.S. Chamber Institute for Legal Reform made suggestions to make the bill more stringent. Indiana Chamber of Commerce testified that they would like to see more regulation, but would like the bill to move forward. The bill was amended by consent to exclude civil justice funding from the balloon payment provision. The amended bill passed 8-0.

The Senate Judiciary Committee heard Sen. Charbonneau’s SB 394 on reporting of government malfeasance. This bill provides for confidentiality and relief for an individual who reports certain suspected violations of law by public officers. The bill was amended to exempt state employees and state agencies. Representatives of Indiana Association of Cities and Towns, Association of Indiana Counties, Indiana Chamber of Commerce, among others, testified in favor of the bill. The amended bill passed 9-0.

The House Judiciary Committee also heard Rep. Koch’s HB 1102 concerning patent protection. The bill addresses bad faith demand letters asserting claims of patent infringement, commonly known as “patent troll activity”. The bill provides for the Attorney General or private action to address bad faith claim letters, enforcement and remedies, and factors the court should consider in evaluating whether the claim letter is made in bad faith. The bill also provides for a bond to be posted if the court finds a reasonable likelihood that an asserted claim has been made in bad faith in violation of this chapter. An amendment was adopted by consent that would define “end user,” and adds a licensee holding a patent from an approved postsecondary educational institution and additional factors to consider when a claim of patent infringement is not made in bad faith. Representatives from the Indiana Bankers Association, Indiana Builders Association, the Manufacturing Association, and Indiana University testified in support of the legislation. The bill passed 8-1.

Criminal Law

February 13, 2015 | Category: Criminal

The Senate Judiciary Committee heard SB 289, authored by Sen. Arnold and Sen. Steele, on confidential victim services requests. This bill permits, for purposes of the public records law, a law enforcement agency to share certain information with a crime victim advocate without the agency losing the discretion to keep this information confidential from other persons requesting records. Representatives from the Indiana Coalition Against Domestic Violence, Indiana Prosecuting Attorneys Council, the Hoosier State Press Association, and the Sheriff of St. Joseph County testified in support of the bill. The bill passed 9-0.

The Senate Judiciary Committee heard Sen. Hershman’s SB 388 on seizure and forfeiture of property. The bill was significantly amended from its original provisions and now focuses on collection of data. The bill requires that forfeiture and seizure data, including an itemized list of property seized, estimated value of seized property, and an itemized list of any previously seized property returned to the owner, must be compiled at least once a month. The amended bill passed 7-0.

The Senate Corrections and Criminal Law Committee heard SB 522 concerning serious sex offenders, authored by Sens. Mrvan, R. Young, Bray ,and Lanane.  The bill defines “serious sex offender” and makes entry on school property by a serious sex offender a Level 6 felony. The bill also provides that a serious sex offender is entitled to vote by mail and requires the department of correction to inform a serious sex offender at the time of discharge from the department: (1) that a serious sex offender who knowingly or intentionally enters school property commits unlawful entry by a serious sex offender, a Level 6 felony; and (2) of voting options for the serious sex offender. The bill was presented by Sen. Mrvan for amendment only, and an amendment was introduced striking the section of the bill of the informing provisions required of the department of corrections, with the understanding that additional amendments would likely need to be made on second reading.  The amendment was adopted by consent and the bill passed 10-0.

The Senate Corrections and Criminal Law Committee heard SB 532 concerning human trafficking and indecent nuisances authored by Sen. Head and Sen. Houchin. This bill originally provided that 50% of the money collected under the actions for the indecent nuisances law concerning human trafficking would be deposited in the county general fund and credited to a separate account identified as the prosecuting attorney’s human trafficking collections account. This week Sen. Head introduced an amendment deleting those provisions and establishing a human trafficking prevention and victim assistance fund to provide services to human trafficking victims, as well as prevention programs. The amendment further provided that 80% of the monies collected in those actions should be collected in the human trafficking assistance fund, and 20% in the county general fund to be appropriated to the prosecuting attorney to defray costs associated in the collection of the funds and investigating or prosecuting human trafficking. The amendment was adopted by consent and the bill passed 9-0.

The Senate Corrections and Criminal Law Committee heard testimony concerning SB 536 addressing methamphetamine related conviction reporting authored by Sens. R. Young, Yoder, and Head. This bill requires courts to report methamphetamine related convictions to the state police department, and requires the police department to report those convictions to the National Association of Drug Diversion Investigators so that stop sale alerts may be issued through the National Precursor Log Exchange (NPLEx) to prevent individuals with methamphetamine related convictions from purchasing ephedrine or pseudoephedrine.

Sen. Steele offered an amendment to the bill similar to SB 445 providing that materials, compounds, mixtures, or preparations that contain ephedrine or pseudoephedrine would be dispensed only by prescription. Representatives from the Indiana Association of City and Towns, the Indiana Prosecuting Attorneys Council, the Terre Haute Police Department, the Wabash County Sherriff, the Madison County prosecuting attorney, and the mayor of Terre Haute testified in favor of the bill. Testimony against the amendment was received from a St. Francis hospital physician representing the Indiana Academy of Family Physicians; a physician from the Indiana State Medical Association; a representative from the Indiana Minority Health Coalition; a consumer healthcare products association director; a representative of the Indiana Retail Council; and a local resident of Speedway, Indiana. Sen. Steele’s amendment was held for further discussion.

Sen. Young then introduced testimony on his bill, and introduced an amendment expanding the precursor band tracked in NPLEx. The amendment was adopted by consent, and testimony explaining the bill was received by an NPLEx representative and legal counsel from the Indiana State Police. The Indiana State Medical Association, Indiana State Retail Council, and the Indiana Osteopathic Association testified in favor of this amendment. The amended bill was held for final vote.

The House Judiciary Committee heard Rep. Steuerwald’s HB 1006 on criminal justice funding. The bill creates the Justice Reinvestment Community Grants Program and provides that the Judicial Center shall develop and administer the program. The bill also provides that the Judicial Center shall award grants to assist with the establishment and maintenance of community corrections programs by 2020, to assist communities and counties to develop and maintain alternatives to incarceration that are needed in the applicable community or county, and to reduce recidivism. The bill provides that there is an annual appropriation of $50,000,000 to the program. The bill was amended by consent to provide that:

  • DOC shall award grants to community corrections programs and courts may apply for community corrections grants;
  • a court may not commit a person convicted of a Level 6 felony to the department of correction after January 1, 2016;
  • community corrections collaboration plans must be submitted by January 1, 2016; a justice reinvestment advisory council is established; and
  • at least 75% of funding awarded for justice reinvestment community grants must be used to provide evidence-based treatment for mental health and addiction directly to an individual.

Judge Robert Freese, Hendricks Superior Court; the Indiana Sheriffs Association; Jane Seigel, Judicial Center; the Indiana Public Defender Council; the Probation Officers Professional Association of Indiana; the Indiana Prosecuting Attorneys Council; the Allen County Government Affairs; the Indiana Prescription Drug Abuse Task Force; the Marion County Public Defender’s Office; Mental Health America; and the  Indiana Council of Community Mental Health Centers all testified in support of the bill. The amended bill passed 10-0.

The House Courts and Criminal Code Committee heard HB 1401 regarding Medicaid fraud authored by Rep. Washburne and Rep. Bacon. This bill clarifies current law by including knowingly or intentionally making, uttering, presenting, or causing to be presented to the Medicaid program a Medicaid claim that is false or misleading to the definition of Medicaid fraud. Rep. Washburne introduced an amendment adopted by Committee consent further clarifying the application of the new definition. The Office of the Attorney General testified in support of this bill. An additional amendment was adopted by consent that the Medicaid claim must be “materially” false or misleading to qualify as Medicaid fraud. The amended bill passed 12-0.

The House Courts and Criminal Code Committee heard HB 1405 authored by Reps. Slager and Fine on the jurisdiction of the attorney general. The bill establishes the concurrent jurisdiction of the attorney general and the prosecuting attorney when public officers and public servants are accused of committing: official misconduct, bribery, ghost employment, conflict of interest, profiteering from public service, interference with the state examiner, failure to follow the state examiner’s directives, and failure to provide an annual report to the state examiner. The State Board of Accounts and the Office of the Attorney General testified in support of the bill. The Prosecuting Attorneys Council testified that changing the current law is unnecessary. The bill was held for further discussion and possible amendment.

Family & Juvenile Law

February 13, 2015 | Category: Family/Juvenile

The Senate Family and Children Committee heard SB 564, authored by Sen. Zakas and Sen. Grooms, originally on changing the waiting period for dissolution of marriage. The bill was amended by consent of the Committee to assign the topic to an appropriate study committee. The bill passed as amended, 7-1.

The House Courts and Criminal Code Committee heard HB 1304 on various criminal law issues authored by Reps. McMillin and Steuerwald.  Rep. McMillin introduced an amendment incorporating a number of changes to the original legislation.  The bill with amendments reads as follows:

  • includes the amendment adopted last week permitting the use of Vivitrol for substance abuse, alcohol or opioid abuse treatment;
  • includes the amendment adopted last week broadening the definition of runaway to include leaving a specific location designated by a parent, guardian or custodian in addition to leaving home without consent;
  • requires the Criminal Justice Institute to collect and analyze data concerning permissive and presumptive juvenile waivers from juvenile courts, in addition to direct file cases;
  • amends the forensic diversion program to permit participation by adults with an “autism spectrum disorder” and/or “intellectual disability” both pre and post conviction;
  • allows diversion and deferral fees to be used to fund mental health treatment in a prosecutorial diversion program.  Permits a prosecutor to require an individual to receive mental health treatment services for any criminal offense (previously limited to felonies);
  • permits a court to advise an individual convicted of a criminal offense that the individual may be placed on probation if the individual requests and is accepted for drug or alcohol abuse treatment by DMHA, subject to any mandatory minimum sentence imposed on the individual;
  • authorizes individuals to seek voluntary treatment from DMHA for drug abuse and authorizes the involuntary commitment to DMHA of individuals who are alcoholics, incapacitated by alcohol or drug abusers;
  • increases the minimum age a child can be charged with murder if committed by an adult and be waived from 10 to 12 years of age;
  • increases the minimum age a child shall be waived from 16 to 17 years of age under Ind. Code § 31-30-3-5;
  • requires law enforcement agencies to record custodial interrogations of juveniles, except in schools if it would impair the administration of school functions, and prohibits the shackling of juveniles in court unless the court has determined the juvenile is dangerous or potentially dangerous;
  • permits a county auditor to seek reimbursement for the expenses of juvenile defense counsel from the Public Defender Commission for 100% of the county’s expenditures;
  • repeals a court’s authority to place a repeat runaway or truant in secure detention and removes the authority to hold a runaway 24 hours (excluding Saturdays, Sundays and non-judicial days) before and after a detention hearing;
  • permits a problem-solving court to require an individual to receive addiction counseling, inpatient detoxification and medication assisted treatment including Vivitrol as a condition of problem solving court participation;
  • authorizes a court to appoint a special advocate to assist persons with intellectual disability or autism spectrum disorder who has been charged with a criminal offense;
  • permits a person to receive, as a condition of probation or parole, to receive addiction counseling, inpatient detoxification and medication assisted treatment including Vivitrol; and,
  • permits a court to suspend a nonsuspendible sentence of a habitual offender during the time the offender is participating in a court approved substance abuse treatment program, and allows the time spent in the program to be deducted from the offender’s additional fixed term of imprisonment if the program is successfully completed.

The amended bill passed 12-0.

Judicial Administration

February 13, 2015 | Category: Administration

The Senate Judiciary Committee heard Sen. Bray’s SB 507 on attorney and judicial discipline complaints. This bill permits a prosecuting attorney and a public defender to seek reimbursement from the State Tort Claim Fund for reasonable attorney’s fees incurred in defending against a claim of attorney misconduct if the alleged misconduct relates to the person’s official duties or status as a prosecuting attorney or public defender, the claim of misconduct does not result in a sanction, and the Attorney General approves the reimbursement. The bill was amended to change that reimbursement comes out of the State General Fund. Representatives from the Indiana Prosecuting Attorneys Council and the Indiana Public Defenders Council testified in favor of the bill. The Committee further amended the bill to remove “private reprimand.” The amended bill passed 9-0.

The Senate Judiciary Committee heard Sen. R. Michael Young’s SB 523 on the Marion County Small Claims courts. This bill replaces the existing Marion county township small claims court system with a county-wide small claims court system having nine divisions and only three townships can hear debt collection cases. It also provides that the judges of the small claims court shall be elected in a county-wide election, and that a division of the Marion county small claims court shall be located in each township. The bill passed 9-0.

The House Judiciary Committee heard HB 1131 concerning exemption of military reservists from jury duty authored by Rep. Hamm and Rep. Saunders. Rep. Hamm presented the bill that provides an exemption from jury service for individuals on reserve duty while on military orders.  Representatives of the Veterans Coalition of Indiana, the Disabled Veterans Association, gave supporting testimony, and a reservist testified that the bill was necessary to correct an oversight in the law. The bill passed 8-0.

Probate Law

February 13, 2015 | Category: Probate

The Senate Civil Law Committee heard SB 56, authored by Sen. Steele and Sen. Bray, on authorizing the establishment of legacy trust and prescribing the procedures for establishing one. This bill provides that a protective provision in a legacy trust prevents a creditor of the settlor from satisfying a claim from the settlor’s interest in the trust estate when the settlor is also a beneficiary of the trust. It also bars most claims against a legacy trust and permits claims against a legacy trust for certain fraudulent transfers, to enforce certain child support orders, and to enforce certain orders for the division of property with respect to a dissolution of marriage or a legal separation. The bill provides immunity to the trustees and advisers of legacy trusts and the professionals involved in establishing legacy trusts and that the rule against perpetuities does not apply to legacy trusts. The bill was amended to change the statute of limitations to four years and add a 6 months’ notice of transfer. Another amendment allows for electronic messages and notice. The amended bill passed 4-3.