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.

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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.  

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General Information

March 27, 2015 | Category: General

This is the twelfth 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:

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Civil Law

March 27, 2015 | Category: Civil

The House Judiciary Committee heard SB 361 sponsored by Reps. McMillin, Steuerwald, and Delaney, concerning defense to liability concerning liquefied petroleum gas providers. Sen. Messmer, one of the authors of the bill, explained that this bill provides that the seller, supplier, handler, or transporter of liquefied petroleum gas that was used in: (1) liquefied petroleum gas equipment; or (2) a liquefied petroleum gas appliance; involved in causing bodily injury or property damage has an affirmative defense in any action brought against the seller, supplier, handler, or transporter if a person assumed the risk of causing the bodily injury or property damage because of certain actions taken by the person in altering, modifying, repairing, or using the equipment or appliance. An amendment was introduced clarifying it is the “provider” (not the seller, supplier, handler or transporter) who has the affirmative defense in an action, and the standard for altering equipment or appliances was changed from “unreasonably alters” to “materially alters.” The amendment also removes language stating that the assumption of a risk is a complete defense to certain actions against a provider of liquefied petroleum gas.  A representative from the Indiana Chamber of Commerce testified in favor of the bill. The amendment was adopted by consent and the bill passed 11-0.

The Senate Civil Law Committee heard HB 1045, sponsored by Sen. Ford, on 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. Additionally, 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 take into account the requirements of the Indiana Tort Claims Act.  A representative for Purdue University, Indiana University, and Indiana State University and a representative from the Independent Colleges of Indiana spoke in favor of the bill. The Committee expressed concern about the broad application of the bill, and held it for further amendment.

The Senate Civil Law Committee heard HB 1145, sponsored by Sens. Pete Miller, Patricia Miller, and Raatz, on civil immunity for volunteer health care providers. This bill specifies criteria for civil immunity from liability for certain volunteer health care providers. It requires the professional licensing agency to establish and maintain a process for the approval of locations at which volunteer health care services may be provided, and a health care volunteer registry. This bill also provides that approval of a health care services location is valid for up to two years. Additionally, it requires a person who meets the criteria for immunity from civil liability to provide a record and results of laboratory and imaging based screenings and tests to the patient. The bill was amended to add podiatrist to the list of medical professionals covered, allow medical professionals to recommend screenings and tests, and create an electronic health care volunteer registry. A representative from the Governor’s office spoke in support of the bill stating that it is an opportunity to get medical attention to the underserved. Various representatives of medical professional organizations and medical professionals testified in support of the bill. A representative of the Indiana Trial Lawyers Association testified about concerns regarding medical records. The amended bill passed 7-0.

The Senate Civil Law Committee heard HB 1161, sponsored by Sen. Steele and Sen. Broden, on immunity for damage caused rescuing a child. This bill grants civil immunity to a person who forcibly enters a locked motor vehicle for the purpose of rescuing a child. It does not extend civil immunity to acts involving gross negligence or willful and wanton misconduct. The bill was amended to add the requirement to contact 911 before entering the vehicle, “if practicable, or as soon as possible thereafter.” The amended bill passed 6-0.

The Senate Civil Law Committee heard HB 1413, sponsored by Sen. Ford, on aircraft financial responsibility and liability. This bill increases the amount of financial responsibility required for the ownership, maintenance, or use of an aircraft to: (1) $100,000 for the bodily injury or death of one person; (2) $200,000 for the bodily injury or death of two or more persons in any one accident; and (3) $100,000 for damage to property in any one accident. It also provides that the owner of an aircraft who is not the pilot is not vicariously liable for damages unless the owner engages in negligent, reckless, knowing, intentional, or unlawful conduct that is the proximate cause of the damages, an agency relationship exists between the owner and the person who proximately caused the damages; or the owner’s liability is based on the doctrine of respondeat superior. The bill additionally specifies that certain provisions relating to the ownership of an aircraft are not intended to modify Indiana law on bailments or bailor liability. The definition of “operate aircraft” was technically amended by consent. The amended bill passed 7-0.

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Criminal Law

March 27, 2015 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 174, Sen. R. Michael Young’s bill on sentence modification sponsored by Rep. Frizzell. Sen. Young presented an amendment to the bill which the Committee adopted by consent.  As amended, the bill would (1) allow persons sentenced for nonviolent crimes committed before July 1, 2014 to petition for sentence modifications without any requirement of prosecutorial consent but subject to a two petition cap with a separation of at least one year between petitions, but (2) would require persons convicted of violent offenses committed prior to July 1, 2014 to obtain prosecutorial consent for a sentence modification petition filed more than 365 days after sentencing.  Public defenders testified in support of the bill, although they did not support the amendment limiting petitions by violent offenders. The bill passed as amended 10-0.

The House Public Health Committee heard SB 464 on mental health issues sponsored by Rep. Clere and Rep. Davisson. The bill:

  • Establishes reimbursement limitations for the prescription of methadone for pain management.
  • Provides that addictions counseling, inpatient detoxification services, and long-acting, non-addicting medication may be required to treat opioid or alcohol addiction as a condition of parole, probation, community corrections, community transition programming, pretrial diversion, or participation in a problem-solving court.
  • Establishes In-patient detoxification services under Medicaid.
  • Establishes non-addicting medication assisted treatment for the treatment of substance abuse under the Indiana check-up plan.
  • Authorizes the Division of Mental Health and Addiction (DMHA) to approve no more than five new opioid treatment programs prior to June 30, 2018.
  • Requires prescribers to indicate on the prescription when methadone is prescribed for pain management.
  • Establishes of the Mental Health and Addiction Forensic Treatment Services fund under the administration of DMHA to be used for grants and vouchers for mental health and addiction treatment services to community corrections, court administered programs, probation, community mental health centers, and certified mental health and addictions providers.
  • Establishes the qualifying criteria for individuals to receive funding from the Mental Health and Addiction Forensic Treatment Services fund.
  • Requires DMHA to survey recipients of Mental Health and Addiction Forensic Treatment Services funds.
  • Requires DMHA to coordinate employment and training services for individuals receiving money from the Mental Health and Addiction Forensic Treatment Services fund with the Department of Workforce Development.

An amendment was adopted by committee consent, making several changes to the bill, including:

  • Adds case management and daily living skills to the available treatment options that may be required as a condition of parole, probation, community corrections, community transition programming, pretrial diversion, or participation in a problem-solving court.
  • Reinserts the provision concerning the Department of Correction operational savings as a result of HEA 1006-2014 and authorizes these funds to be deposited in the Mental Health and Addiction Forensic Treatment Services account.
  • Requires DMHA to provide education and training on the use of involuntary commitments and medication assisted treatment to circuit and superior court judges, prosecuting attorneys and deputy prosecuting attorneys, public defenders and programs and providers eligible for funding from the Mental Health and Addiction Forensic Treatment Services account.

The amended bill passed 10-0.

The House Courts and Criminal Code Committee resumed consideration of SB 522, sponsored by Rep. Smaltz, preventing serious sexual offenders from being on school property and extend to such offenders the right to vote by mail.  The bill passed 12-0.

The Senate Corrections and Criminal Law Committee heard HB 1401, sponsored by Sen. Young and presented by author Rep. Washburn, concerning Medicaid fraud. The bill expands the crime of Medicaid fraud to include knowingly or intentionally making, uttering, presenting, or causing to be presented a claim that is materially false or misleading. After the committee received supporting testimony from the Attorney General’s Office, the bill passed 8-0.

The Senate Corrections and Criminal Law Committee heard HB 1531, sponsored by Sen. Steele and Sen. Houchin and presented by author Rep. Davisson, concerning video conferencing by confined persons. The bill provides for using two-way video conferencing between courts and DOC inmates and between jail inmates and mental health providers. The committee raised a number of questions regarding the circumstances in which video conferencing could be used. Testimony was received from the Indiana Council of Community Mental Health Centers, Public Defender Council, and Hoosier Press Association. After committee discussion, there were several amendments offered to the bill, which include requiring the defendant’s consent to video conference for court proceedings and for mental health evaluations, provides that the mental health evaluations under this statute would be for treatment and assessments, and prohibits video conferencing for competency determination assessments or for evaluations related to the defense of mental illness or mental defect to a crime.  The amended bill passed 9-0.

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Family & Juvenile Law

March 27, 2015 | Category: Family/Juvenile

The House Judiciary Committee heard SB 352, sponsored by Rep. Steuerwald and Rep. McMillin, concerning identifying information for adoptions. Sen. Steele, an author of the bill, explained that this bill repeals, effective July 1, 2016, provisions applicable to adoptions finalized before January 1, 1994, that prohibit the release of identifying adoption information unless a consent to release the information is on file. It also provides that beginning July 1, 2016 identifying adoption information may be released unless a non-release is on file, regardless of when the adoption was filed. Under current law, this provision applies only to adoptions filed after December 31, 1993. Testimony was received in favor of the bill by several adoptees and adoption advocates, and a professor from the University of Baltimore School of Law. Concerns were raised by a representative from Governor Pence’s office, and testimony against the bill was received from a local adoption attorney. The bill was held in anticipation of Committee amendments.

The Senate Family and Children Services Committee heard HB 1196 on CHINS and delinquent child dual determination sponsored by Sen. Head and Sen. Bray. Sen. Head explained that the bill coordinates services when a child is identified as both a CHINS and a delinquent. The bill authorizes the juvenile court to order a dual status assessment conducted by a dual assessment team to make recommendation to the juvenile court which agency, DCS or the probation department, will be the primary supervising agency. A clarifying amendment was adopted by committee consent. Testimony in support of the bill was heard from DCS, Judge Charles Pratt of the Allen Superior Court, and the Indiana Association of Resources and Child Advocacy. The amended bill passed 7-0.

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Judicial Administration

March 27, 2015 | Category: Administration

The House Courts and Criminal Code Committee heard SB 137, sponsored by Rep. Fine and Rep. Slager, on magistrates and criminal trials, prohibiting a magistrate’s presiding at sentencing when (1) the magistrate had not also presided at trial and (2) the defendant objected to the magistrate presiding at sentencing. Author Sen. Randolph presented the bill to the Committee.  A technical amendment was made to make the language in the bill consistent with terminology used in the Indiana Supreme Court Criminal Rules. The bill passed as amended 9-0.

The House Judiciary Committee heard SB 217, sponsored by Reps. Gutwein, McNamara, and Lawson, concerning service of process fees collected by a sheriff.  Author Sen. Boots explained that this bill increases the service of process fee from $13 to $25 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 provides that the sheriff may collect an additional service of process fee for post-judgment service.  Testimony was received by the Association of Indiana Counties and Indiana Sheriffs Association in favor of the bill. The bill passed 11-0.

The House Courts and Criminal Code Committee heard SB 261, sponsored by Rep. Cox, allowing interlocutory criminal appeals by the Attorney General of a trial court’s order dismissing charges. Author Sen. Young presented the bill that was amended in the Senate to add a subsection (b) which would allow the State to challenge the sentence imposed in any appeal by a defendant, even if the defendant had not raised the sentence as an issue in his appeal. After testimony was received in favor of the bill without the added subsection, the Committee adopted an amendment deleting subsection (b) and passed the bill as amended 9-0.

The House Courts and Criminal Code Committee heard SB 523, Sen. R. Michael Young’s bill to make changes to the Marion County Small Claims courts, sponsored by Rep. Frizzell. Sen. Young explained that decisions by the Indiana Supreme Court and the Seventh Circuit Court of Appeals on venue within the small claims court had adversely affected the caseload balances between the individual township small claims courts, which diminished the fee revenues for a number of the courts to the point where they were no longer able to operate on the fee collections alone as they had in the past. Sen. Young stated the bill will overcome venue problems by creating three small claims court “districts,” each consisting of three of the nine townships with a small claims court in each township.  This would allow case filings by district, which he said would help alleviate caseload imbalances and the resulting revenue problems. The small claims judges would become full time with salaries equal to 70% of a circuit court judge’s salary. The bill would also raise the court’s jurisdictional level from the current $6,000 amount-in-controversy cap to $8,000, which Sen. Young said would result in more filings in the small claims court, helping increase their operating revenue, and reducing filings in the Marion Superior Court, helping lower that court’s caseload burdens. The bill would have the Decatur and Franklin township courts, which have had the most serious reductions in operating funds, each receive $1 of the docket fees for filings in the other seven township courts.  Candidates in small claims court elections would run at-large within the three-township districts, with the three candidates receiving the greatest number of votes in the district being elected. The elected candidates could agree between themselves as to which township court each would serve in, but if no agreement could be reached the Marion Circuit Court judge would assign the judges to their courts.

Sen. Young then presented Amendment 2, which he said he had drafted after meeting with Indiana Supreme Court Chief Justice Loretta Rush.  He noted that “there’s a lot more they [the Supreme Court] want than is in this bill,” and said that he had asked the Chief Justice for the items the Court considers most needed. He said she had responded favorably to his proposal that there be a General Assembly summer study committee examination of small claims issues generally. He reported that she had said a desirable reform would be to make the small claims courts courts of record, which led Sen. Young to provide in his amendment that the small claims court would have three years to acquire the necessary equipment to become a court of record. He said the Chief Justice also said it was essential for there to be uniform practices and procedures in the nine township courts, which Sen. Young’s amendment would require to be in place by January 1, 2016.  Sen. Young also said that the Chief Justice had said that a case management system should be implemented, which he said his amendment would require to be in place by July 1, 2016.

Testimony on the bill was then received from Judge John Baker of the Court of Appeals, who described previous small claims court reform studies made first by a task force he had chaired with Court of Appeals Senior Judge Betty Barteau, second by the Indianapolis Bar Association, and third by the National Center for State Courts. Judge Baker said that Chief Justice Rush appreciated Sen. Young’s willingness to incorporate some of the Supreme Court’s major concerns in the bill, but the Judge urged the Committee to commit the small claims court issues to a legislative summer study committee for a full-spectrum assessment rather than pass SB 523 now. Further testimony was received for and against the bill from Marion Small Claims Court judges. Sen. Greg Taylor, Rep. Cherrish Pryor, and former Rep. William Crawford all urged the Committee to not pass the bill and instead send the small claims court issues to a summer study committee. In Committee discussion, five members thought it best to send the small claims court issues to a study committee, noting that after all the reform assessments there was still significant disagreement among those involved as to what should be done. Other members proposed that Sen. Young be given another week to see if the bill could be altered in a fashion which would better address objections heard in the hearing. Committee Chair Washburne decided to hold the bill for another week, to give Sen. Young an opportunity to present a revised bill with limited testimony only.

The Senate Judiciary Committee heard HB 1405 pertaining to state examiner, attorney general, and prosecuting attorneys sponsored by Sen. Niemeyer. Author Rep. Slager explained that the bill authorizes concurrent criminal jurisdiction by the Attorney General and prosecuting attorney to prosecute certain violations committed by local public officers under the purview of the State Board of Accounts. The bill also expands the Attorney General’s authority to bring a civil action to remove a public official from office when a second, unrelated violation of IC 5-11-1-10 or IC 5-11-1-21 is committed and to combine this action with an action brought under IC 5-11-5-1. An amendment was adopted by consent removing the concurrent criminal jurisdiction provisions. The State Examiner testified in support of the bill. The Association of Indiana Counties testified in opposition to the bill. The amended bill failed to pass 5-3.

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Traffic Law

March 27, 2015 | Category: Traffic

The Senate Corrections and Criminal Law Committee heard HB 1305 concerning various motor vehicle issues, sponsored by Sen. Young and presented by author Rep. McMillin.  The bill was drafted to improve on the changes made by HEA 1279-2014. The Committee took an amendment by consent that would continue the work to move the penalty provisions into the same statute as the substantive elements of the offenses. Representatives from the Indiana Prosecuting Attorney Council and Public Defender Council both testified in support of the bill.  The Committee made additional amendments to reckless driving, offenses for traveling on interstate highways, and operator responsibilities after an accident. The amended bill passed 10-0.

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General Information

March 19, 2015 | Category: General

This is the eleventh 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:

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Civil Law

March 19, 2015 | Category: Civil

The House Judiciary Committee heard SB 101 on religious freedom restoration. Co-sponsor Rep. McMillin offered an amendment clarifying that the bill applies only to governmental action and does not authorize a private cause of action. The amendment passed 9-3. Sponsor Rep. Wesco explained that the bill restores the strict scrutiny standard of review for governmental intrusions on an individual’s exercise of religion. A governmental entity may burden a person’s exercise of religion if the burden: (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering the compelling governmental interest. The bill provides a procedure for remedying a violation of this law. Extensive testimony was heard in support of and in opposition to the bill. The amended bill passed 9-4.

The Senate Civil Law Committee heard HB 1413, sponsored by Sen. Ford, on aircraft financial responsibility and liability. This bill increases the amount of financial responsibility required for the ownership, maintenance, or use of an aircraft to $100,000 for the bodily injury or death of one person, $200,000 for the bodily injury or death of two or more persons in any one accident, and $100,000 for damage to property in any one accident. It also provides that the owner of an aircraft who is not the pilot is not vicariously liable for damages unless:

(1)  the owner engages in negligent, reckless, knowing, intentional, or unlawful conduct that is the proximate cause of the damages;

(2)  an agency relationship exists between the owner and the person who proximately caused the damages; or

(3)  the owner’s liability is based on the doctrine of respondeat superior.

This bill additionally specifies that certain provisions relating to the ownership of an aircraft are not intended to modify Indiana law on bailments or bailor liability. The bill was held for amendment.

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