Family & Juvenile Law

April 15, 2014 | Category: Family/Juvenile

Access to juvenile court records
S.E.A. 19, P.L. 1-2014
Effective: July 1, 2014
Makes records open involving paternity, custody, parenting time and child support concerning a child born to parents who are not married to each other.

Petitions for adoption
S.E.A. 27, P.L. 81-2014
Effective: July 1, 2014; §4 March 25, 2014.
Amends Ind. Code § 31-19-2-13 to provide if a temporary order in an adoption proceeding conflicts with a custody order issued by any other court, except an appellate court, the temporary order in the adoption proceeding controls.Amends Ind. Code § 31-19-2-14 to provide if a petition for adoption and a paternity action are pending at the same time for a child, the adoption court has exclusive jurisdiction over the child and the paternity proceeding must be consolidated with it. Amends Ind. Code § 31-19-11-6 to provides a court may not grant an adoption petition if parent-child relationship had been terminated, and the time for filing an appeal has not elapsed, an appeal is pending, or an appellate court is considering a request for transfer or certiorari. Adds a noncode section urging the Indiana General Assembly to study whether a father who has abandoned a birth mother during pregnancy should be required to consent to the adoption of the child. (This section effective March 25, 2014 )

Guardian matters
S.E.A. 59, P.L. 83-2014
Effective: July 1, 2014
Allows a guardian, including a volunteer advocates for senior program or a volunteer advocates for incapacitated adults program, to request permission to file a petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of an incapacitated person. Allows the court to grant a request for permission to file a petition for a dissolution of marriage, a legal separation, or an annulment on behalf of an incapacitated person only if the court determines by clear and convincing evidence that petitioning for a dissolution of marriage, a legal separation, or an annulment is in the best interests of the incapacitated person. Provides that the guardian may not delegate the power to request permission to file a petition for dissolution, separation, or annulment. Requires the guardian to: (1) be named in a petition for dissolution of marriage, legal separation, or annulment; and (2) file, with the petition, a copy of the court order granting the request for permission to file the petition. Permits a guardian to file a petition for dissolution of marriage, legal separation, or annulment on behalf of an incapacitated person in the guardian’s county of residence. Allows a court to award, in certain enforcement proceedings, attorney’s fees and costs to a guardian if the person indebted to the guardianship estate or holding property of the guardianship estate refused to respond within 30 business days after receiving the guardian’s written demand or instruction. (Current law allows attorney’s fees and costs if the person refused to respond within 10 days.) Allows a court to award attorney’s fees and costs in certain enforcement proceedings against insurers.

Nonsupport of a child
S.E.A. 63, P.L. 148-2014
Effective: July 1, 2014
Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

Alcohol and medical emergencies; crime studies – Commission on Improving the Status of Children
S.E.A. 227, P.L. 156-2014
Effective: July 1, 2014
Amends Ind. Code § 2-5-36-9 to require the Commission on Improving the Status of Children in Indiana to study and evaluate crimes of sexual violence against children and the impact of social networking web sites, cell phones and wireless communications devices, digital media, and new technology on crimes against children.

Reconciles technical and substantive conflicts between HEA 1006-2013 (the criminal code revision bill) and other bills concerning criminal law – Exclusion from juvenile court jurisdiction
H.E.A. 1006, P.L. 168-2014
Effective: July 1, 2014
Amends Ind. Code § 31-30-1-4 to remove criminal gang activity, criminal gang intimidation, manufacturing or dealing in cocaine or narcotic drugs if the individual has certain prior unrelated convictions or prior juvenile adjudications from the list of acts excluded from juvenile court jurisdiction of the individual is at least sixteen (16) years of age at the time of the alleged violation.  Note: See criminal law section for numerous other amendments to HEA 1006-2013.

Department of Child Services
H.E.A. 1110, P.L. 123-2014
Effective: July 1, 2014
Amends Ind. Code § 31-9-2-107 to broaden the definition of relative in CHINS and in Delinquency cases to include persons who have an established and significant relationship with the child. Amends Ind. Code § 31-16-15-2.5 to permit the Title IV-D agency, if the individual is subject to an income withholding order, to increase the weekly amount withheld up to an additional $10, if the arrearages are at least $10 and less than $500. Makes other Title IV-D changes.  Amends Ind. Code § 31-25-2-23 to provide the residential placement committee shall review the child’s placement in a child caring institution, group home, or private secure facility if the placement is contrary to the DCS recommendation. Amends Ind. Code § 31-33-18-2 to provide reports of a child’s death or near fatality shall be made available to a person who operates a child caring institution, group home, or secure private facility under certain circumstances. Amends Ind. Code § 31-34-4-2, Ind. Code § 31-34-6-2, and Ind. Code § 31-34-19-7 to require DCS to consider placing an alleged CHINS taken into custody, or as a CHINS placement with a relative related by blood, marriage, or adoption before considering any other placement. Amends Ind. Code § 31-37-17-2 and 6.1 to use the broadened definition of relative for placement purposes. Amends Ind. Code § 31-37-19-1.5, Ind. Code § 31-37-20-4.5, and Ind. Code § 31-37-22.4.5 to remove “caretaker” from: (1) the list relative placements which may be recommended in a case plan; (2) from the list of persons required to get notice of post dispositional hearings involving the delinquent; and (3) in modification hearings.

Various education and school matters
H.E.A. 1204, P.L. 41-2014
Effective:  July 1, 2014
Adds Ind. Code § 34-30-28 to provide schools, school employees or school boards are not liable for civil damages as a result of an injury to a child or family members if the injury is a result of a student’s mental health issue that was not disclosed by the parents or guardian or any referrals the school made or services the school offered concerning the evaluation or treatment of the student’s health or mental health.  Adds Ind. Code § 33-37-10-3.5 to provide a witness fee for an employee of a school district of mileage and $100 for each day.

Adoption committee and tax credit
H.E.A. 1222, P.L. 132-2014
Effective: §1 January 1, 2015; §2 July 1, 2014
Adds Ind. Code § 6-3-3-13 to permit an adoption tax credit if the person is eligible to claim the credit on the federal adoption credit. Effective January 1, 2015. Adds a noncode section to establish an interim committee on adoption to study how other states provide services under public adoption programs and study legal and regulatory costs associated with foster care and private adoptions, which must report recommendations by November 1, 2014. The governor shall appoint two judges with adoption experience to this nine-member committee.

Criminal matters – Enhancement for a minor
H.E.A. 1269, P.L. 185-2014
Effective: July 1, 2014
Amends Ind. Code § 35-44.1-3-10 to provide a service provider who knowingly or intentionally engages in sexual intercourse or other sexual conduct with a person who is subject to lawful detention or lawful supervision commits a Level 5 felony of sexual misconduct.  Enhances the crime of sexual misconduct to a Level 4 felony if the person subject to lawful supervision is less than eighteen (18) years of age.

Various motor vehicle issues - Minors
H.E.A. 1279, P.L. 217-2014
Effective: July 1, 2014; §5-15, §17-70, §72-186, §188-195 January 1, 2015
Repeals the authority in Ind. Code § 7.1-5-7-1 to make it a Class C  misdemeanor to use a false or altered driver’s license and permit the minor’s driver’s license, permit or driving privileges to be suspended for up to one (1) year.  Effective July 1, 2014. Repeals the authority in Ind. Code § 7.1-5-7-7 to make it a Class C misdemeanor to operate a mother vehicle while possessing, consuming or transporting and alcoholic beverage. Effective July 1, 2014. Amends Ind. Code § 7.1-5-7-10 to make it a Class C misdemeanor for a minor to knowingly or intentionally be in a tavern or bar or other public place where alcoholic beverages are sold or provided.  Removes the authority to suspend a driver’s license, permit or driving privileges under this section. Effective July 1, 2014. Amends Ind. Code § 31-37-5-7 and Ind. Code § 31-37-19-17.3 to provide a driver’s license may be suspended when an investigation of a delinquent occurs under Ind. Code § 9-30-16 and the juvenile did not refuse to submit to a chemical test under Ind. Code § 9-30-5 if committed by an adult, the juvenile court may grant specialized driving privileges under Ind. Code § 9-30-16. Repeals the authority of the juvenile court in Ind. Code § 31-40-2-1.7 to order the BMV to not issue a driver’s license or permit until the person has paid the person’s delinquent probation user’s fees.  Effective January 1, 2015.

[Permalink]

Judicial Administration

April 15, 2014 | Category: Administration

Judicial officers
S.E.A. 3, P.L. 147-2014
Effective: July 1, 2014
Makes battery: (1) a Level 6 felony instead of a Class B misdemeanor if the offense is committed against judicial officers while the judicial officers are engaged in the judicial officers’ official duties; and (2) a Level 5 felony instead of a Class B misdemeanor if the offense results in bodily injury to certain judicial officers while the judicial officers are engaged in the judicial officers’ official duties or the person who committed the offense placed certain infected bodily fluids or wastes on certain judicial officers. Provides that certain judicial officers: (1) may possess and use a firearm in the same locations that a law enforcement officer who is authorized to carry a firearm may possess a firearm while the law enforcement officer is engaged in the execution of the law enforcement officer’s official duties; and (2) may not be prohibited from possessing a firearm on land or in buildings and other structures owned or leased by the state or any agency of state government or a political subdivision. Specifies that a judicial officer who possesses and uses a firearm has the same civil and criminal immunities and defenses that a law enforcement officer has when the law enforcement officer: (1) possesses and uses a firearm; and (2) is engaged in the execution of the law enforcement officer’s official duties.

Representation of judges in mandate of funds litigation
S.E.A. 60, P.L. 19-2014
Effective: July 1, 2014
Urges the legislative council to assign the topic of the representation of judges and payment of attorneys fees in judicial mandate actions to an interim study committee.

Courts and court officers
S.E.A. 160, P.L. 23-2014
Effective: July 1, 2014
Only if the judge of the juvenile court  is authorized by state law, the judge may appoint one or more a full-time magistrates under IC 33-23-5, unless the judge of the juvenile court appointed one or more full-time magistrates under this section before July 1, 2014, the judge may continue to appoint or reappoint a full-time magistrate to each of those positions after June 30, 2014. Adds that the Commission on Courts is required to review and report on the following: (A) All requests for new courts or changes in jurisdiction of existing courts. A new court with one (1) or more new judges may not be established and one (1) or more new judges may not be added to an existing court unless the establishment of the new court and the addition of the new judges to an existing court are authorized by state law. (B) All requests for the authority to appoint a magistrate for a juvenile court. A magistrate may not be appointed for a juvenile court unless the appointment of the magistrate is authorized by state law.

Senior and special prosecutors
S.E.A. 223, P.L. 57-2014
Effective: July 1, 2014
Repeals and recodifies provisions concerning the appointment of senior prosecuting attorneys, special prosecutors, and special deputy prosecuting attorneys. Provides that a person may be appointed as a senior prosecuting attorney if the person was employed for at least eight years as a: (1) prosecuting attorney; (2) chief deputy prosecuting attorney; (3) deputy prosecuting attorney; or (4) deputy prosecuting attorney employed full time to perform certain duties related to child support provisions. Requires a person who files an affidavit to be considered for appointment as a senior prosecuting attorney to file a request to withdraw from consideration when the person is no longer willing to serve as a senior prosecuting attorney. Requires the Prosecuting Attorneys Council to maintain and publish a list of persons who are eligible to be appointed as senior prosecuting attorneys. Allows a senior prosecuting attorney to be appointed as a special prosecutor in a county in which the senior prosecuting attorney previously served if the appointing court finds that the appointment would not create the appearance of impropriety. Removes provisions that limit the number of days a senior prosecuting attorney may be compensated during a calendar year. Requires a special prosecutor to file a progress report with the appointing court at least one time every six months. Makes conforming amendments.

Mental health pilot project
S.E.A. 235, P.L. 158-2014
Effective: July 1, 2014
Requires community corrections programs to use evidence based services, programs, and practices that reduce the risk for recidivism. Permits the community corrections board to coordinate or operate certain programs. Establishes standards for the award of certain grants by the Department of Correction, and requires the Department of Correction to consult with the Judicial Conference and the Division of Mental Health and Addiction before awarding grants. Defines “mental health and addiction forensic treatment services”, establishes eligibility and treatment criteria, and creates the mental health and addiction forensic treatment services account to fund mental health and addiction forensic treatment services. Requires the Judicial Conference to consult with the Department of Correction and the Division of Mental Health and Addiction about awarding financial assistance, and requires any person providing mental health and substance use treatment services to be certified by the Division of Mental Health and Addiction. Provides that the Department of Correction may provide financial assistance to community corrections programs from the mental health and addiction forensic treatment services account. Allows for the establishment of a three-year pilot project in Marion County to reduce recidivism by providing mental health and forensic treatment services. Extends Supplemental Nutrition Assistance Program and Temporary Assistance for Needy Families benefits for individuals participating in the Marion County mental health pilot project and other evidence based treatment programs.

Government reduction – Juvenile court magistrate appointment
H.E.A. 1005, P.L. 113-2014
Effective: July 1, 2014
Adds that the judge of the juvenile court may appoint more than one full-time magistrate only if the appointment of an additional magistrate is expressly authorized by the General Assembly. [See also, S.E.A. 160, P.L. 23-2014]

Hamilton County magistrates
H.E.A. 1095, P.L. 12-2014
Effective: July 1, 2014
Allows the judge of the Hamilton Circuit Court and the judges of the Hamilton Superior Courts to jointly appoint three full-time magistrates to serve the circuit and superior courts. Current law provides that the three magistrates may be jointly appointed by the judges of the Hamilton Superior Courts to serve the superior courts.

Restricted addresses of judges
H.E.A. 1178, P.L. 14-2014
Effective: July 1, 2014
Adds an individual who is employed or was formerly employed as a judge of a federal court to the definition of “judge” for purposes of restricted access to homes addresses.

Court administrative matters
H.E.A. 1347, P.L 78-2014
Effective: July 1, 2014
Requires the clerk of the circuit court (clerk) or the county recorder (recorder) to be the secretary of the county commission of public records, as determined by: (1) mutual agreement of the clerk and the recorder; or (2) if a mutual agreement cannot be reached, an affirmative vote of the majority of the members of the commission. Allows the clerk to keep the lis pendens record, the execution docket, and the register of witness fees and court fees in electronic form if all information is available to the public to inspect or copy in the electronic form. Eliminates: (1) the requirement that the clerk attend court proceedings; and (2) the per diem paid the clerk or a deputy for attending court. Allows the clerk to retain an administrative fee of up to $3 from any excess amount of fine, penalty, fee, or bail collected and refunded by the clerk. Requires the cost of: (1) an initial mailing of a document by certified or registered mail to be paid out of court costs and fees; and (2) any additional certified or registered mailings to be paid by the person requesting the additional mailings. Provides that a circuit court judgment docket must contain: (1) all civil judgments in which one party owes money to another party; and (2) any entry that is required by a statute. Provides that a judgment docket may not include: (1) judgments in which money is owed by a person to a state, a county, or another governmental entity as a result of a criminal conviction or a violation of an infraction or ordinance; or (2) except for cases in which the state obtains a judgment for unpaid taxes, judgments in which a governmental entity is the sole creditor. Allows a clerk of a circuit court to keep a judgment docket in an electronic format and/or a paper format. Provides that the judgment docket shall be made available for public inspection at the office of the clerk during regular office hours. Provides that, if the wages of a judgment debtor are being garnished: (1) a clerk is not required to notify the employer of the judgment debtor to suspend the garnishment after the judgment is satisfied; and (2) a request to suspend the garnishment must be submitted by the judgment debtor to the court that rendered the judgment. Urges the legislative council to assign the topic of small claims court administration to an interim study committee.

[Permalink]

Miscellaneous

April 15, 2014 | Category: Miscellaneous

Technical corrections
S.E.A. 24, P.L. 2-2014
Effective: March 13, 2014
Resolves: (1) technical conflicts between differing 2013 amendments to Indiana Code sections; and (2) other technical problems in the Indiana Code, including incorrect statutory references, nonstandard tabulation, and various grammatical problems. (The introduced version of this bill was prepared by the code revision commission.)

[Permalink]

Probate Law

April 15, 2014 | Category: Probate

Probate, trust, and transfer on death matters
S.E.A. 36, P.L. 51-2014
Effective: July 1, 2014
Provides that a petition or other document filed in court by a personal representative in an estate proceeding with a written consent to the petition or other document or a written waiver of notice of the proceedings in the estate is not required to include a statement that the personal representative delivered a copy of the petition or other document to each person whose written consent or waiver of notice of proceedings was presented to the court, if the petition or other document contains a statement by the person whose signature appears on the consent or waiver: (1) identifying the petition or other document; and (2) affirming that the person has received a copy of the petition or other document and had a reasonable time to read and understand the petition or other document before signing the consent or waiver. Requires a party contesting the validity of a will to serve a copy of the complaint on the counsel for the personal representative. Provides that the court may not enter a default judgment for the contesting party unless proof of service on the counsel for the personal representative is made to the court. Specifies that the procedures for dispensing with the administration of small estates are available to distributees and persons acting on behalf of distributees rather than persons claiming to be entitled to payment from the decedent’s estate. Provides for an enforcement action against a person who does not comply with a fiduciary’s demand or instruction. Allows a court to award attorney’s fees and costs in certain enforcement proceedings. Provides that payments on liens paid with respect to a probate distribution are charged to the beneficiaries of the distribution unless the will provides expressly or by necessary implication that the payment be charged against the residue of the estate. Provides that a general directive in a will to pay debts does not imply an intent that a devise of property subject to a lien be distributed free from the lien. Provides that if trust property subject to a lien is specifically distributable, the distributee shall take the property subject to the lien unless the terms of the trust provide expressly or by necessary implication that the lien be otherwise paid. Provides that payments on liens paid with respect to a trust distribution are charged to the beneficiaries of the distribution unless the trust provides expressly or by necessary implication that the payment be charged against the residue of the trust estate. Provides that a general directive in a trust to pay debts does not imply an intent that a distribution of property subject to a lien be distributed free from the lien. Makes changes to the uniform principal and income act (act). Provides that a personal representative is a fiduciary under the act if provided for: (1) by the will; or (2) by a law allowing the personal representative to account for and distribute income received during the estate administration separately from the corpus of the estate. Provides the following with regard to distributions to beneficiaries after an income interest in a trust ends: (1) Upon the death of the settlor of a revocable living trust, the settlor’s trust interest becomes a terminating income interest and the property transferred upon the settlor’s death becomes a part of the trust when the property is received by the trust. (2) A decedent’s estate is not a terminating income interest. Provides that an asset becomes subject to a trust on the date the asset is distributed to the trust from the decedent’s estate: (1) if the income received during the administration of the estate was accounted for and distributed by the estate as part of the corpus of the estate; and (2) unless the will or other applicable law provides that income received during the estate administration is accounted for and distributed by the estate as income and not as part of the corpus of the estate. Specifies that provisions that determine the period in which an income beneficiary is entitled or eligible to receive net income of a trust do not control how receipts and disbursements are allocated to or between principal and income during that period. Specifies that provisions regarding which income receipts and disbursements of a trust are to be taken into account in determining the net income of the trust for the period after the beginning and before the end of a beneficiary’s income interest do not control the initial classification of receipts and disbursements as between principal and income. Defines the following for purposes of the trust code: (1) “Trust instrument”. (2) “Terms of a trust”, “terms of the trust”, or “terms of a charitable trust”. Provides that unless the trust provides otherwise, a trustee has a duty to keep current income beneficiaries and, in the case of a trust that has become irrevocable, contingent income beneficiaries, reasonably informed by providing access to the trust’s accounting and financial records upon written request. Provides that unless the trust provides otherwise, the trustee has a duty after the trust becomes irrevocable to provide income beneficiaries and remaindermen with a copy of the trust instrument upon written request. Provides that a trustee’s power under certain circumstances to appoint all or part of the principal of a trust into a second trust is available when the trustee has discretion to invade the principal of the first trust to make distributions to or for the benefit of at least one person. (Current law grants the power of appointment to a trustee who has absolute power to invade the principal of the first trust to make such distributions.) Provides that the notice given to a person by a trustee that starts the period within which to contest the validity of a trust must state: (1) the person’s interest in the trust, as described in the trust document; or (2) that the person has no interest in the trust. Provides that a delegation of authority by an attorney in fact survives even if the attorney in fact who delegated the authority fails or ceases to serve unless: (1) the delegation of authority by its terms terminates under these circumstances; (2) the delegation of authority is revoked; or (3) the power of attorney expires or becomes otherwise invalid or unenforceable. Specifies that a child of the principal who requests an accounting from an attorney in fact is entitled to delivery of the requested accounting. Specifies that the 60 day delivery deadline set forth in current law for requested accountings applies to court ordered accountings. Provides that in the case of a principal who has died: (1) the court may order an accounting at any time; and (2) the 60 day delivery deadline applies to a written request for an accounting that is submitted to the attorney in fact not later than nine months after the date of the principal’s death. Defines the terms “fiduciary” and “fund” for purposes of a statute concerning powers granted to an attorney in fact with respect to fiduciary transactions of the principal. Provides that the powers granted to an attorney in fact apply: (1) to a fund existing at the time the power of attorney is executed; (2) to a fund created after the power of attorney is executed; and (3) whether or not the fund is located in Indiana. Requires, upon the death of an owner whose transfer on death deed has been recorded, that the beneficiary file an affidavit in the office of the recorder that includes the date of the owner’s death (instead of a certified copy of the owner’s death certificate). (The introduced version of this bill was prepared by the probate code study commission.)

[Permalink]

Traffic Law

April 15, 2014 | Category: Traffic

Motor vehicle financial responsibility
H.E.A. 1059, P.L. 10-2014
Effective: Jan. 1, 2015
Makes various changes to the motor vehicle financial responsibility law, including the: (1) definition of “registration” to include the license plate issued in connection with the registration of a vehicle; (2) requirement of proof of financial responsibility if the operator was not the owner of the motor vehicle is not needed if the person is only seeking to reinstate driving privileges otherwise the operator’s policy of liability insurance is sufficient proof; (3) requires suspension of a registration in addition to driver’s license as a consequence of operation of the vehicle without financial responsibility in effect if the person has a prior conviction within five years; and (4) adds the requirement of proof of future financial responsibility for five years related to operating a vehicle without financial responsibility in effect for the third or subsequent offenses and maintaining the three year requirement for first and second offenses. Increases fees for the reinstatement of a driving license suspended under the financial responsibility law. Specifies that $30 of each reinstatement fee currently charged and the amount of the fee increase must be deposited in the motor vehicle highway account. The Bureau of Motor Vehicles, between July 1 and December 31, 2014, may negotiate with an individual a lower reinstatement fee if the person’s driver’s license/privileges were suspended prior to July 1, 2014. (The introduced version of this bill was prepared by the interim study committee on insurance.)

Proceeding through intersection at red light
H.E.A. 1080, P.L. 206-2014
Effective: July 1, 2014
Authorizes the operator of a: (1) motorcycle; (2) motorized bicycle; (3) motor scooter; or (4) bicycle approaching an intersection that is controlled by a traffic control signal to proceed through the intersection on a steady red signal if the operator comes to a complete stop for at least 120 seconds and exercises due caution provided by law in treating the traffic control signal as a stop sign and determining it is safe to proceed.

Various motor vehicle issues
H.E.A. 1279, P.L. 217-2014
Effective: July 1, 2014; §5-15, §17-70, §72-186, §188-195 January 1, 2015
Makes various changes to the infraction and criminal law provisions in motor vehicle law. Modifies numerous statutes concerning driver’s license suspension and revocation. Modifies the duties of an operator of a motor vehicle if the operator is involved in certain accidents. Modifies the definition of “highway work zone”. Repeals sections concerning “street cars”. Repeals certain motor vehicle and watercraft fraud provisions, and creates a new motor vehicle and watercraft fraud statute. Creates specialized driving privileges and requires a person that is granted specialize driving privileges to maintain proof of financial responsibility, carry a copy of the court order granting specialized driving privileges, and produce a copy of the order upon request of law enforcement. Modifies provisions related to operating while intoxicated.  Modifies the provisions related to habitual traffic violators.  Requires mandatory advisement to persons convicted or pleading guilty to the designated offenses could qualify them as a habitual traffic violator. Requires the bureau of motor vehicles to adopt rules to specify reasonable grounds for suspension or revocation of driving privileges, driver’s licenses, certificates of registration, or license plates. Provides that a motor vehicle may be stopped to determine compliance with motor vehicle window tinting standards but may not be inspected, searched, or detained solely because of a violation of window tinting standards. Creates the habitual vehicular substance offender designation and sentencing. Requires: (1) the state department of toxicology (department) to develop standards and testing for ignition interlock devices (devices); and (2) all devices used in Indiana after July 1, 2015 to be certified under rules adopted by the department. Requires a vendor or provider of devices to: (1) report to the court or court’s designee certain occurrences concerning the use of devices; and (2) provide any reports or data requested by the department.

[Permalink]

General Information

February 28, 2014 | Category: General

This is the eighth weekly installment of the Legislative Update for the 2014 legislative session. If you are interested in reading the text of any bill introduced this session, you may find the bill information at the link below:

All Introduced Bills

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

[Permalink]

Civil Law

February 28, 2014 | Category: Civil

The House Judiciary Committee heard SB 138, sponsored by Rep. Kubacki and Rep. Lawson and authored by Sen. Becker, on victim advocates in civil proceedings. This bill removes restrictions on grants from the Victim Services Division of the Indiana Criminal Justice Institute for certain entities to enter into a contract with the Domestic Violence Prevention and Treatment Council. It also provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary, and specifying that a victim advocate is not considered to be practicing law when performing certain services. Indiana Coalition Against Domestic Violence testified in favor of the bill. The bill passed 7-0.

[Permalink]

Criminal Law

February 28, 2014 | Category: Criminal

The House Courts and Criminal Code Committee discussed SB 88, on mental health witnesses in criminal cases, sponsored by Rep. Bacon. The bill removes the requirement that one of the court-appointed witnesses in an insanity defense case must be a psychiatrist. The Committee adopted by consent an amendment which addressed issues raised in the hearing last week. The amended bill passed 9-0.

The House Courts and Criminal Code Committee heard SB 169, providing firearms to an ineligible person; firearm theft, sponsored by Rep. McMillin and Rep. Steuerwald. Senate author R. Michael Young presented the bill, which makes it a Level 5 felony to provide a firearm to a person the provider knows either is legally ineligible to have a firearm or is going to use the firearm to commit a crime. The bill makes it a Level 2 felony if the person uses the firearm to commit murder. The bill also makes it a Level 5 felony ‘straw purchase” to purchase a handgun for another knowing the other is ineligible to have a handgun, or when the purchaser knows the person he is buying a handgun for will use the handgun to commit a crime, or to purchase a handgun with the intent to transport it to another state and transfer it there to one the purchaser knows is either ineligible or will use it to commit a crime. “Straw purchase” is a Level 2 felony if the handgun is used to commit murder. The bill also permits the State to seek a 10 to 20 year sentence enhancement if a person uses a firearm to commit:  (1) a felony against the person that results in death or serious bodily injury; or (2) kidnapping, or Level 2 or 3 criminal confinement.  Members noted that there was no time limit for criminal liability; Sen. Young said the way to avoid liability is to refrain from giving a firearm to an individual know to be ineligible or intending to commit a crime. Indianapolis Mayor Ballard testified in favor of “mandatory minimums” for persons who use firearms to commit crimes, noting the city’s recent surge in crimes committed with firearms. Rep. McMillin introduced an amendment reducing the sentence limit from 10 years to 5 years for the use of the firearm to commit the felony against a person resulting in death or serious bodily injury, kidnapping, or Level 2 or 3 criminal confinement.The amendment was adopted by consent. Sen. Merrit spoke in favor of the bill, as did the Indiana Prosecuting Attorneys Council. The amended bill passed 8-1.

The Senate Appropriations Committee heard HB 1006, reconciling technical and substantive conflicts between HEA 1006-2013 (the criminal code revision bill) and other bills concerning criminal law authored by Representatives Clere and Steuerwald, and sponsored by Sens. Becker, Steele, R. Michael Young, and Breaux. Sen. Kenley introduced two amendments to the legislation.

The first amendment adds Sen. Yoder’s SB 43 on child seduction bill to the legislation. The amendment makes it child seduction, a Level 6 felony, for a law enforcement officer who is at least five years older than a child who is at least 16 years of age, but less than 18 years of age; to fondle or touch the child with the intent to arouse or satisfy the sexual desires of either the child or the law enforcement officer, if the law enforcement officer’s contact with the child occurred in the course of the officer’s official duties. The amendment makes it child seduction, a Level 5 felony, if the law enforcement officer engages in sexual intercourse or other sexual conduct with the child.  The amendment was adopted by consent.

The second amendment requires, that before March 1, 2015, the Department of Correction to estimate any operational cost savings realized in the state fiscal year ending June 30, 2015 attributable to sentencing changes made under the legislation and if cost savings will be realized, the department may grant community corrections grants to counties for local programming.  The department may also transfer saved funds to the judicial conference to be used to support probation services.  The maximum amount of these additional grants and transfers may not exceed the lesser of the amount of operational cost savings or $11,000,000.  The amendment also reduces the sentence for arson with intent to defraud, institutional criminal mischief, an offense against intellectual property, and auto theft from a Level 5 felony to a Level 6 Felony.  The amendment also reduces the maximum penalties for Level 1 felonies from 50 to 40 years, Level 3 felonies from 20 to 15 years, Level 4 felonies from 12 to 10 years, and Level 5 felonies from six to five years.  Advisory sentences for Level 3 felonies are reduced from ten years to eight years. The amendment also addresses “sexting” and provides that a person less than eighteen who possess an indecent image of another person less than eighteen years of age commits a Class A misdemeanor if the person is in a dating relationship, the age difference is not more than four years, and the person acquiesced in the taking or transmission of the indecent image.  The amendment specifies that an individual prosecuted for possession of an indecent image as a misdemeanor may not be prosecuted for possession of child pornography or child exploitation. The amendment was adopted by consent.

The Indiana Prosecuting Attorney Council testified supporting the House version of the bill, taking no position on Sen. Kenley’s second amendment. The Public Defender’s Council testified in support of Sen. Kenley’s second amendment but expressed some concerns with other provisions of the bill – particularly the enhancement for committing a crime within 250 feet (instead of 500 feet) of a school, family housing complex, child care facility, or public park.

A defense attorney testified also expressing concerns with the reduced drug free zones provision. The Attorney General’s office testified supporting the version of the bill that passed out of the House, without amendments, and believes the legislation is a balanced approach to public safety. The American Institute of Research testified, as the individuals who did the research for the Sentencing Policy Study Committee, that their sources of research were locally obtained using IRAS results, focus groups from local counties, and information from State Court Administration. The amended bill passed 9-2.

The Senate Judiciary Committee heard HB 1155 on expungement sponsored by Sen. Steele. Author Rep. McMillin explained that this bill cleans up last year’s second chance expungement legislation and is a product of the Criminal Law and Sentencing Policy Study Committee. The bill: (1) strikes language requiring the payment of the filing fee, (2) changes the burden of proof from clear and convincing evidence to a preponderance of the evidence, (3) eliminates a conflicting expungement procedure currently in statute, (4) allows defense attorneys and probation departments access to expunged information upon court order, (5) shortens the waiting period for filing a petition to expunge felonies higher than a D felony, (6) clarifies that expungement petitions may be amended after filing if mistakes were made in good faith, and (7) prohibits a person from waiving his/her right to expungement in a plea agreement. An amendment was adopted by committee consent allowing members of the State Board of Law Examiners access to expunged records for the purposes of determining an applicant’s good moral character during the bar admission process. A second amendment was adopted by committee consent clarifying that a person convicted of a crime of domestic violence that has been expunged may restore his/her right to possess a firearm only in accordance with IC 35-47-4-7. Representatives from the Board of Bar Examiners, Prosecuting Attorneys Council, Marion County Prosecutor’s Office, Indiana State Bar Association, and Martin University testified in support of the bill. Representatives from the Office of the Attorney General and the Department of Financial Institutions noted concerns with federal law regulating state licensing protocols which mandate access to expunged information. A final amendment was adopted by committee consent to make the bill effective upon passage. The amended bill passed 7-1.

The Senate Judiciary Committee heard HB 1378 on familial DNA searches sponsored by Sen. Zakas. The bill requires the Indiana State Police to report to the Criminal Law and Sentencing Policy Study Committee during the legislative interim on the use of familial DNA searches in criminal investigations. A technical amendment was adopted by consent. The amended bill passed 7-0.

[Permalink]

Family & Juvenile Law

February 28, 2014 | Category: Family/Juvenile

The House Judiciary Committee heard SB 59, sponsored by Rep. Mayfield and authored by Sen. Bray, on a guardian filing for dissolution of marriage, legal separation, or annulment. This bill allows a guardian, including a volunteer advocate for senior programs or a volunteer advocate for incapacitated adults program, to request permission to file a petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of an incapacitated person in the guardian’s county of residence. It also allows the court to grant a request for permission to file a petition for a dissolution of marriage, a legal separation, or an annulment on behalf of an incapacitated person only if the court determines by clear and convincing evidence that petitioning for a dissolution of marriage, a legal separation, or an annulment is in the best interests of the incapacitated person. The bill provides that the guardian may not delegate the power to request permission to file a petition for dissolution, separation, or annulment and requires the guardian to: (1) be named in a petition for dissolution of marriage, legal separation, or annulment; and (2) file, with the petition, a copy of the court order granting the request for permission to file the petition. An amendment was presented by Rep. Washburne as  trailer language to SB 36 allowing a guardian to bring an enforcement proceeding against a third party who fails to comply with the guardian’s written demand or instruction, and this amendment was adopted by consent. A representative from the Probate and Property Section of the Indiana State Bar Association testified in support of the bill. The amended bill passed 6-1.

The Senate Health and Provider Services Committee heard HB 1110, authored by Rep. Mahan and sponsored by Sen. Holdman, on the Department of Child Services. The bill was held for an amendment to provide the delinquency statutes would have the same definition of “relative” as used in the CHINS statutes and other changes. The definition of “relative” was broadened to include other individuals with whom the child has an established and significant relationship in addition to the existing list of relatives. The amendment was adopted by consent and the amended bill passed 7-0.

[Permalink]

Judicial Administration

February 28, 2014 | Category: Administration

The House Judiciary Committee heard SB 60, sponsored by Rep. Steuerwald and authored by Sen. Boots, urging the legislative council to assign the topic of the representation of judges in mandate of funds litigation and payment of attorney’s fees in judicial mandate actions to an interim study committee. The Association of Indiana Counties testified in favor of the bill. The bill passed 7-0.

The House Courts and Criminal Code Committee heard SB 160, sponsored by Rep. T. Brown and Rep. Goodin, allowing the appointment of magistrates only when authorized by statute. Rep. McMillin presented the bill for Senate author Luke Kenley. The bill passed 9-0.

The House Courts and Criminal Code Committee heard Sen. R. Michael Young’s SB 235, the Marion County mental health pilot project bill, sponsored by Rep. Steuerwald and Rep. Frizzell. This bill requires community corrections programs to use evidence-based services, programs, and practices that reduce the risk for recidivism. It also permits the community corrections board to coordinate or operate certain programs. This bill establishes standards for the award of certain grants by the Department of Correction (“DOC), requires DOC to consult with the Judicial Conference and the Division of Mental Health and Addiction (“DMHA”) before awarding grants, defines “mental health and addiction forensic treatment services”, establishes eligibility and treatment criteria, and creates the mental health and addiction forensic treatment services account to fund mental health and addiction forensic treatment services. It removes the requirement that the budget committee must approve the distribution of funds appropriated to the Judicial Conference to assist probation departments, specifies the purposes for which these funds may be used, and requires the Judicial Conference to develop a plan to establish application procedures and funding requirements for courts seeking assistance. It also requires the Judicial Conference to consult with the DOC and DMHA before awarding financial assistance, and requires any person providing mental health and substance use treatment services be certified by the DMHA. Additionally, this bill establishes a three-year pilot project in Marion County to reduce recidivism by providing mental health and forensic treatment services. After a number of witnesses testified in support, and a technical amendment was adopted by consent, the amended bill passed 9-0.

The Senate Judiciary Committee heard HB 1347 sponsored by Sen. Steele regarding circuit court clerk administrative matters. Author Rep. Mayfield explained that the bill is intended to increase efficiency and flexibility in the clerk’s office by authorizing, among other things, the retention of certain records electronically. The bill also limits the costs to courts for certified mail service to the initial mailing of a document and specifies that any subsequent certified mailings are the financial responsibility of the requesting party. Sen. Steele offered two amendments adopted by committee consent. The first amendment establishes that the circuit court clerk is the official keeper of the circuit court judgment docket, specifies that the judgment docket may not include criminal convictions, infractions or ordinances with limited exception and authorizes the judgment docket to be maintained electronically. This amendment also specifies that a judgment debtor must apply to the court that rendered the judgment to suspend a garnishment order. The second amendment refers the study of small claims administration and actions to the legislative council to assign to an appropriate study committee and makes changes to garnishment actions (language from SB 366). Several clerks and the Association of Indiana Counties testified in support of the bill. The amended bill passed 7-0.

[Permalink]

← Previous PageNext Page →