Saturday, October 25, 2014

Legislative Report: 2009 Indiana General Assembly

June 30, 2009 by Editor

The Indiana Judicial Center staff compiled summaries of legislation of significance to the judiciary enacted by the 2009 Indiana Legislature. To see the Center’s full online report, which includes other bills of interest and which features hyperlinks to the full text of the legislation, go to www.indianacourts.org/blogs/legupdate.

Special Session

A special session of the Indiana legislature will be held sometime in June, 2009.  The state’s fiscal year ends on June 30. The Legislature must pass a constitutionally mandated budget bill and will return at the call of the Governor to adopt that law, and possibly others.  The budget bill could contain many items of interest to the courts, particularly enactments pertaining to costs, fees and other fiscal matters.  Be sure to watch for reports of special session results. The following laws were passed during the regular session of the 2009 General Assembly:

Civil Matters

Domestic violence programs & Indiana protective order registry

S.E.A. 345, P.L. 130

The bill provides that the Criminal Justice Institute will be in charge of the administration of sexual offense services, domestic violence programs, assisting victims of human and sexual trafficking, the domestic violence prevention and treatment council and fund, and the family violence and victim assistance fund. It establishes the Indiana Protective Order Registry and requires State Court Administration to create, manage, and maintain the registry, including coordinating efforts with the counties.

Consumer practices & residential mortgage foreclosures

S.E.A. 492, P.L. 105

This bill establishes obligations for lenders and rights for borrowers in foreclosure cases including: a default pre-suit notice, an opportunity to conduct a settlement conference, and required information from the court if the borrower elects to conduct a settlement conference.

It establishes a $50 court fee for mortgage foreclosure actions to be deposited in the home ownership education account administered by the Indiana Housing and Community Development Authority. And, the Indiana Department of Insurance will establish an electronic collection and storage system for certain information concerning persons participating in, or assisting with, single family residential mortgage transactions, including the names of the buyer and the seller in a first lien purchase money mortgage transaction.

GPS monitoring & restraining orders

H.E.A. 1578, P.L. 116

Under the provisions of this bill a court may require a person subject to an order of protection to wear a GPS tracking device, with notification capabilities, if the court finds that the person violated an order for protection.  The Division of State Court Administration must create, manage, and maintain an Internet-based registry of protective orders and provide tracking reports to the general assembly.

Criminal Issues

Theft of metal

S.E.A. 21, P.L. 158

This new law expands the definition of “valuable metal,” specifies that the term does not apply to a beverage can, and removes the $100 value minimum from metal transaction reporting requirements.  A valuable metal dealer who purchases valuable metal must now record the source and photograph the metal and the seller. It defines “key facility” and makes it a Class D felony if trespassing is committed on a key facility or on a facility belonging to a public utility.  It raises theft and receiving stolen property to a Class C felony if the property taken or received is a valuable metal and relates to transportation safety or public safety or is taken from a health care facility, telecommunications provider, public utility, or key facility.

Assisting a criminal

S.E.A. 34, P.L. 159

It is no longer a defense to the crime of assisting a criminal that the person assisted has not been prosecuted, has not been convicted, or has been acquitted by reason of insanity.

Child seduction & repeat sex offenders

S.E.A. 181, P.L. 125

Prosecutors may use an attempted sex offense to establish that a person is a repeat sex offender. And the bill authorizes the release of certain medical or epidemiologic information of persons convicted of certain sex offenses.

Prosecution costs, litigation, and trafficking with inmates

S.E.A. 223, P.L. 128

An offender who has filed at least three civil actions that have been dismissed as frivolous may not file a new complaint, or petition as an indigent person, unless the offender is in immediate danger of serious bodily injury.  This bill also increases from Class A misdemeanor to Class C felony the trafficking of a cell phone with an inmate.  A person commits a Class A misdemeanor who carries into a penal or juvenile facility, or who possesses on its’ premises, a controlled substance or a deadly weapon.  The Sentencing Policy Study Committee must evaluate whether the state should pay all trial costs in a prosecution for an offense committed at a state correctional facility.

Sentence enhancement for feticide

S.E.A. 236, P.L. 40

A person who causes the termination of a human pregnancy, while committing or attempting to commit murder or felony murder, may be sentenced to an additional term of imprisonment of six to 20 years. Feticide is increased from Class C felony to Class B felony.

Compensation for victims of violent crimes, sex crime victims’ cooperation with law enforcement, and wrongful death or injury of a child

S.E.A. 342, P.L. 129

This bill changes the compensation of victims from the violent crime victims compensation fund administered by the Indiana Criminal Justice Institute.  Sex crime victims are no longer required to cooperate with law enforcement.  It specifies that the law concerning the wrongful death or injury of a child does not apply to a legally performed abortion; and, it does apply to a fetus that has attained viability.

Identity deception

H.E.A. 1121, P.L. 137

This law creates the Identity Theft Unit within the Office of Attorney General.  It authorizes certain agencies and persons to cooperate with the unit in investigating identity theft.  A county prosecuting attorney may deputize the attorney general, or a deputy attorney general, to assist in the prosecution of an identity theft case.  It provides certain rights to the victims of identity theft and increases to Class C felony the crime of identity deception committed against a person’s child. It creates the crime of synthetic identity deception, a Class D or C felony, for unlawfully using information that identifies a fictitious person, or a person other than the person using the information, that does not belong in its entirety to any live or deceased person.

Victim’s rights

H.E.A. 1175, P.L. 169

If a motion is made to postpone a trial or other court proceeding involving certain sex offenses, the court must consider whether a postponement will have an adverse impact on victims who are under eighteen or who are endangered adults. The bill further states that a victim of any offense has the right to be free from intimidation, harassment, and abuse throughout the criminal justice process.  “Defense counsel” is defined to include an agent for defense counsel or for the defendant.  Defense counsel in a sex offense case must contact the prosecuting attorney in order to interview a child victim, or alleged victim, who is less than 16 years of age. The prosecuting attorney may not instruct the child to not speak with defense counsel. A court may impose reasonable conditions on an interview if the parties are unable to reach an agreement on the conditions of the interview.

Animal cruelty & commercial dog breeders

H.E.A. 1468, P.L. 111

The court or the parole board, as a condition of bail or parole, may prohibit a person from owning, harboring, or training an animal; and, if the person is prohibited from having direct or indirect contact with an individual, from having direct or indirect contact with any animal belonging to the individual.

Family & Juvenile Law

Various department of child services matters

S.E.A. 365, P.L. 131

This bill makes numerous changes to the juvenile code including provisions relating to Department of Child Services, probation and courts, child support, adoption, guardians, CHINS, and delinquency cases.  The Judicial Center’s full summary of this bill can be found at: http://indianacourts.us/blogs/legislative/wp-content/uploads/2010/05/sea-365-summary.pdf.

Youth shelters

H.E.A. 1063, P.L. 72

An emergency shelter, a shelter care facility, or a program that provides services to homeless or low income individuals may provide shelter and other related services or items to a child without the permission of the child’s parent, guardian, or custodian. A runaway or homeless youth is defined as an individual at least 12, and less than 18, years of age.  Immunity from civil liability is provided to a youth shelter and its employees and volunteers for any act or omission related to admitting, caring for, or releasing a runaway or homeless youth, except for gross negligence or willful and wanton misconduct.

Student discipline

H.E.A. 1419, P.L. 66

The Department of Education must develop a master evidence-based plan for improving student behavior and discipline for use by school corporations. This master plan must include policies to ensure that students are not inappropriately referred to juvenile justice agencies and to improve communications with juvenile justice agencies.

The governing body of a school corporation must develop an evidence-based plan for improving behavior and discipline, and the school corporation discipline rules must incorporate a graduated system of discipline, which includes actions that may be taken in lieu of suspension or expulsion.

Suspension of Medicaid for delinquent children

H.E.A. 1536, P.L. 114

The Division of Family Resources (DFR) must suspend for up to six months before terminating a child’s Medicaid eligibility, if the child has been adjudicated to be a delinquent child and has been placed in a community based correctional facility, juvenile detention center, or a secure facility (not a child caring institution under IC 31-27), and would otherwise be ineligible to receive Medicaid. The DFR must take action to ensure that a delinquent child is eligible to participate in Medicaid if the division receives a dispositional decree, or a modified dispositional decree, and the Department of Correction gives the DFR at least forty (40) days notice of the child’s release from a secure facility.  The DFR must take action to ensure that a child is eligible to participate in Medicaid upon the child’s release.

A court must provide to DFR a copy of the dispositional decree, or a modification of the decree, if a predispositional report indicates a child receives Medicaid and the court places, intends to place, or previously placed the child in a juvenile detention facility or a secure facility.

The Office of Medicaid Planning and Policy must amend the state Medicaid plan to carry out this act and file an affidavit with the governor attesting that the plan amendment filed is in effect.

Judicial Administration

Consolidation of probation departments

S.R. 31

Urges the Commission on Courts to study consolidation of probation services in counties having more than one probation department.

Probation Departments

S.R. 47

Urges the Commission on Courts to study methods of providing financial support to local probation departments.

Waiver of certain court fees & court costs

H.E.A. 1363, P.L. 89

A person who is entitled to bring a civil action or petition for the appointment of a guardian under IC 29-3-5 may do so without paying the required fees or other court costs under certain conditions.  If a person brings a civil action under IC 29-3-5, a clerk must waive the fees or other court costs without court approval if the person is represented by a civil legal aid program attorney or by a pro bono attorney who obtained the client through a direct referral from one of the fourteen pro bono administrative districts, and the attorney files the required documentation. The court may modify a finding of indigency if the person seeking relief ceases to qualify.

Unlawful manufacture or sale of police or fire insignias

[includes provisions for reporting mental health disqualifications related to firearm possession and sentencing of defendants found guilty, but mentally ill]

H.E.A. 1428, P.L. 110

If a court makes an adjudication or finding concerning a person’s mental health that may disqualify the person from possessing a firearm, the court must transmit certain information concerning the adjudication or finding to the Division of State Court Administration for transmittal to NICS.  The finding must be based upon clear and convincing evidence that the offender is in need of mental health care and treatment. Whenever a defendant is found guilty but mentally ill at the time of the crime, or enters a plea to that effect that is accepted by the court, the court shall sentence the defendant in the same manner as a defendant found guilty of the offense, with certain listed exceptions.

Senior citizen jury exemption

H.E.A. 1686, P.L. 157

An individual who is at least 75 years of age may be exempted from jury duty.

Probate Law

Various probate & trust issues

H.E.A. 1287, P.L. 143

Criminal Provisions. It provides criminal provisions for misuse of certain trust or escrow accounts and specifies that damages are subject to the statutes governing the inheritance tax, the Indiana estate tax, and the generation skipping transfer tax. The statute of limitations period for the criminal offenses of misusing funeral trust or pre-need escrow accounts is five years after the date of death of the settler or purchaser.

Transfer on Death Property. Individuals may designate beneficiaries to receive certain forms of property, including real property, upon the death of the individual. The rights of a beneficiary to any part of property that is subject to a beneficiary designation after the death of the owner are determined under IC 29-3-8-6.5 under certain circumstances, and specifies the types of property transfers that are subject to the Transfer on Death Property Act. A probate court must determine the beneficiary entitled to receive transfer on death property and the proper share of each beneficiary.

Funeral Declarations. A person may provide instructions concerning funeral arrangements under a statutory funeral planning declaration form. A person may designate an individual to make arrangements who is first in priority and indicate that a person designated in a health care power of attorney is second in priority of individuals who can authorize the cremation of a person’s remains and who may authorize the owner of a cemetery to inter, entomb, or inurn the body or cremated remains.

Power of Attorney. An attorney in fact or other individual acting on the behalf of the owner of property may make, revoke, or change a beneficiary designation under certain circumstances and may withdraw, sell, pledge, or otherwise transfer property that is subject to a beneficiary designation notwithstanding that the effect of the transaction may be to extinguish a beneficiary’s right to receive a transfer of property at the death of the owner.  This legislation also makes several other amendments to the power of attorney provisions.

Trusts. A trustee may be a designated beneficiary regardless of whether the trust is amendable, revocable, irrevocable, funded, unfunded, or amended after the designation is made. It provides separate allocation procedures for payments made to a marital trust and permits the charging of tax payments to principal to the extent that receipts are allocated to principal.

Other probate issues. The methods of satisfying the survivors’ allowance include claims against personal property, real property, or a combination of personal property and real property in the decedent’s estate.  It allows the opening of an estate or guardianship by using first class postage prepaid mail in lieu of certified mail.  There are separate procedures established for petitioning the removal of a corporate personal representative following a change in the control of the corporation.  It establishes the method of determining the amount a joint owner or beneficiary of a protected person’s multiple-party account is entitled to receive from the protected person’s estate when a guardian has used assets of the multiple-party account.

Traffic Law

Learner’s permits and graduated licenses

S.E.A. 16, P.L. 101

This legislation provides for numerous amendments concerning when an individual under 18 years of age may receive a learner’s permit or operator’s license (i.e., minimum age, driver’s education, minimum hours of driving practice, etc.), effective July 1, 2010.

An under 18 holder of a probationary license will be ineligible for pretrial diversion or deferral with respect to certain offenses and infractions involving motor vehicles.

It sets time restrictions on when an individual under 18 years of age may not operate a motor vehicle.  An individual may operate a motor vehicle during these time periods if they are participating in, going to, or returning from lawful employment, a school sanctioned activity, or a religious event, or accompanied by a licensed driver over 25 years of age. An operator under the age of 18 may not drive while using a telecommunications device except for making a 911 emergency call. Revises the period during which certain passengers may not accompany a probationary operator.

The State Board of Education and the Criminal Justice Institute must adopt rules specifying that the classroom portion of driver education may not be provided to a child less than 15 ½ years of age.