The 2012 Indiana General Assembly ended its short session in March. Summarized below is new legislation of interest to attorneys. Some of the highlights of the session were the passage of a funding mechanism for the Indiana Pro Bono Commission; the phasing out of inheritance tax in Indiana; and child-support emancipation at 19 years of age.
HEA 1049
Citations affected: IC 4-2-7-6; IC 4-6-3-2; IC 5-11; IC 12-23-14-16; IC 33-23-16; IC 34-6-2-44.8; IC 33-23-16; IC 33-34-8; IC 33-37
Synopsis: Pro bono legal service fee. Imposes until July 1, 2017, a pro bono legal services fee of $1 on parties who file certain civil actions, small claims actions, and probate actions. Requires the pro bono legal services fees to be transferred to the Indiana Bar Foundation as the entity designated by the Indiana Supreme Court to organize and administer the interest on lawyers trust accounts (IOLTA) program. Requires the Indiana Bar Foundation to: (1) deposit in an appropriate account and otherwise manage the fees the Foundation receives in the same manner it deposits and manages the net earnings the Foundation receives from IOLTA accounts; and (2) use the fees the Foundation receives to assist or establish approved pro bono legal services programs. Specifies that the handling and expenditure of the pro bono legal services fees received by the Indiana Bar Foundation are subject to audit by the state board of accounts. Changes the definition of "family or house hold member" to include a person who adopts a child of the other person.
Effective: July 1, 2012
CRIMINAL
SEA 1
Citations affected: IC 35-41-3-2
Synopsis: Self-defense. Conference committee report for ESB 1. Specifies that a person may use reasonable force against any other person in certain circumstances. Provides that a person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to: (1) protect the person or a third person from unlawful force; (2) prevent or terminate the public servant's unlawful entry into the person's dwelling; or (3) prevent or terminate the public servant's criminal interference with property lawfully in the person's possession. Specifies that a person is not justified in using force against a public servant if: (1) the person is committing or is escaping after the commission of a crime; (2) the person provokes action by the public servant with intent to injure the public servant; (3) the person has entered into combat with the public servant or is the initial aggressor; or (4) the person reasonably believes the public servant is acting lawfully or is engaged in the lawful execution of the public servant's official duties. Provides that a person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless: (1) the person reasonably believes that the public servant is acting unlawfully or is not engaged in the execution of the public servant's official duties; and (2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.
Effective: upon passage
ENVIRONMENTAL LAW
SEA 131
Citations affected: IC 13-11; IC 13-14; IC 13-18; IC 13-19; IC 13-20; IC 13-20.5; IC 13-21; IC 13-25; IC 13-27; IC 13-27.5; noncode
Synopsis: Environmental matters. Defines "program year" as a calendar year for certain electronic waste programs. Establishes program year dates for certain recycling goals. Requires the department to include restrictive covenants on a property transfer disclosure form. Includes tire disposal as a "waste tire processing operation." Removes certain requirements for a septage management vehicle identification. Allows the department of environmental management (department) to issue a septage management permit that incorporates approval of a land application site. Establishes certain waste source reduction goals. Requires the holder of an incinerator permit to notify the department and appropriate local government officials about certain contaminant effects from incineration exceeding control levels of an air pollution control permit. Exempts a manufacturer of tires that keeps 5,000 waste tires or less in an enclosed structure from certain registration provisions. Exempts a person that obtains a certificate of registration from having to obtain a solid waste processing facility permit: (1) for activities covered under the registration; or (2) if the person stores or processes waste tires in a facility according to certain regulations. Excludes a waste tire amnesty day sponsored by a local government from certain registration requirements. Allows disposal of waste tires by: (1) delivery to a facility that retreads tires; (2) delivery to a facility that is registered as a storage site or processing operation; or (3) collection by a registered transporter. Provides that waste tire transporters may not design their own manifest form. Requires from a recycler a list of collectors from which the recycler received covered electronic devices. Requires the department to: (1) provide information on a property's restrictive covenants; and (2) include environmental defects on a property transfer disclosure form. Abolishes the clean manufacturing technology board. Repeals provisions pertaining to: (1) waste exchange; (2) solid and hazardous waste materials exchange; (3) waste incineration; and (4) waste tires. Requires the department to provide solid waste management districts with a curriculum model that includes educational core principles concerning: (1) the reuse, recycling, and collection of mercury; and (2) the reuse, recycling, collection, and proper disposal of solid waste. Provides that solid waste management districts must implement educational programs that meet the minimum standards established by the department in the curriculum model. Provides that, in 2015 and every fifth year thereafter, the legislative council must require an interim study committee or a statutory study committee to: (1) assess solid waste management districts; and (2) determine whether any changes should be made to the statutes governing districts. Specifies additional information that a solid waste management district must include in the annual report prepared by the district and provided to the department, the department of local government finance, and the legislative council. Requires a solid waste management district to publish the report on an Internet web site maintained by the district or on the Internet web sites maintained by the counties that are members of the district. Requires the commission on state tax and financing policy to study issues related to the financing of solid waste management districts during the 2012 interim. Requires the environmental quality service council to study issues concerning the powers of solid waste management districts to: (1) establish and issue permits that are not specifically authorized by a statute; and (2) impose and collect fees that are not specifically authorized by a statute; during the 2012 interim.
Effective: upon passage; July 1, 2012
SEA 133
Citations affected: IC 13-14; IC 13-23; IC 13-25
Synopsis: Underground storage tanks. Allows the solid waste management board to adopt rules and establish requirements for underground storage tanks in conformance with the delivery prohibition program under 42 U.S.C. §6991k. Provides that the commissioner of the department of environmental management (commissioner) may: (1) determine whether an underground storage tank (tank) is eligible for delivery, deposit, or acceptance of a regulated substance; and (2) issue a temporary order to enforce compliance. Allows the commissioner to enforce the delivery prohibition program if an owner or operator of an underground petroleum storage tank fails to register the tank or pay annual registration fees. Requires the commissioner to provide notice before issuing such a temporary order. Requires compliance with such an order by the new owner of an underground storage tank after ownership of the tank is transferred. Allows the commissioner to implement the delivery prohibition program prior to the adoption of rules by the board. Repeals requirements to pay certain tank fees. Exempts the implementation of the delivery prohibition program from certain administrative procedures. Provides a defense to noncompliance with such an order if the owner or operator of the underground storage tank has not been notified that the tank is ineligible. Makes a technical correction.
Effective: July 1, 2012
SEA 168
Citations affected: IC 13-23
Synopsis: Liability for underground storage tank fees. Provides that the state may impose a lien on the property of an owner or operator of an underground storage tank, if the owner or operator of the tank fails to register or pay certain fees. Requires the department of environmental management (department) to: (1) provide 30 days written notice before filing a lien; and (2) perfect a lien by recording the lien with the county recorder in the county in which the property is located. Provides that a bona fide purchaser is eligible to receive funds from the underground storage tank excess liability trust fund if the: (1) transferee acquires an underground storage tank as a result of a bona fide transaction; (2) transferor fails to pay any registration fees; (3) department fails to record the lien; and (4) transferee pays past due fees and interest not more than 30 days after receiving notice of indebtedness.
Effective: July 1, 2012
FAMILY & JUVENILE LAW
HEA 1065
Citations affected: IC 31-14; IC 31-17
Synopsis: Military custody and parenting time matters. Requires a court, upon motion by a parent who has received military temporary duty, deployment, or mobilization orders: (1) to hold an expedited hearing to determine or modify custody or parenting time; and (2) to allow, with reasonable notice, a parent to present testimony and evidence by certain electronic means in a custody or parenting time proceeding; if the military duties of a parent have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time. Allows a court, upon motion by a parent who has received military deployment orders, to delegate the parent's parenting time, or a part of the parent's parenting time, during the time that the parent is deployed to a person who has a close and substantial relationship with the parent's child, if the court determines delegating the time is in the best interests of the child. Provides that an order delegating parenting time automatically terminates after the parent returns from deployment. Allows the court to terminate an order delegating parenting time if the court determines that the delegated parenting time is no longer in the best interests of the child.
Effective: July 1, 2012
SEA 18
Citations affected: IC 31-14; IC 31-16
Synopsis: Duty to support a child. Provides that the duty to support a child, which does not include support for educational needs, ceases when the child becomes 19 years of age. (Current law provides that the duty to support a child ceases when the child becomes 21 years of age.) Permits a child who is receiving child support under an order issued before July 1, 2012, to file a petition for educational needs until the child becomes 21 years of age, and specifies that a child who is receiving child support after this date may petition until the child becomes 19 years of age. (The introduced version of this bill was prepared by the child custody and support advisory committee.)
Effective: July 1, 2012
SEA 32
Citations affected: IC 29-3-12
Synopsis: Guardianships. Conference committee report for ESB 32. Allows a minor who has not been adjudicated an incapacitated person and the minor's guardian to jointly petition the court to extend the guardianship beyond the date the minor attains 18 years of age. Requires the petition to be verified. Authorizes the court to extend the guardianship, but not beyond the date on which the protected person attains 22 years of age, if the court finds that extending the guardianship is in the best interests of the protected person. Specifies that the extension of the guardianship does not place the person under a legal disability.
Effective: July 1, 2012
SEA 249
Citations affected: IC 31-11
Synopsis: Record of marriage. Provides that a clerk of a circuit court: (1) may forward a record of marriage to the state department of health in a paper form or in an electronic form by using an automated system developed by the judicial technology and automation project or another automated system approved by the state department of health; and (2) who forwards a record of marriage to the state department of health in an electronic form is not required to forward the record of marriage to the state department of health in a paper form.
Effective: July 1, 2012
GOVERNMENT PRACTICE
HEA 1273
Citations affected: noncode
Synopsis: Administrative law judge study. Requests the legislative council to study, during the 2012 legislative interim, the topic of creating a centralized department of administrative law judges within the office of the attorney general.
Effective: upon passage (Note: This will be studied this summer in Indiana Commission on Courts.)
SEA 311
Citations affected: IC 4-3
Synopsis: Cost benefit analysis for administrative rules. With certain exceptions, requires the office of management and budget (OMB) to prepare for each administrative rule that: (1) has been adopted; and (2) has taken effect; after Dec. 31, 2011, a cost benefit analysis with respect to the first three years following the rule's effective date. Provides that if the OMB finds that a proposed rule is: (1) an adoption or incorporation by reference of a federal law, regulation, or rule that has no substantive effect on the scope or intended application of the federal law or rule; or (2) a technical amendment with no substantive effect on an existing Indiana rule; the OMB may not prepare a cost benefit analysis of the proposed rule or with respect to the first three years following the rule's effective date. Requires the OMB to submit its findings that the OMB may not prepare a cost benefit analysis on the rule to the administrative rules oversight committee (committee) and the governor. Requires the OMB to submit a cost benefit analysis to: (1) the governor; and (2) the committee; not later than six months after the third anniversary of the rule's effective date. Provides that a cost benefit analysis prepared before or after a rule's adoption and effective date must include certain information, including information concerning: (1) the rule's primary and direct benefits; (2) the rule's secondary and indirect benefits; and (3) any cost savings to regulated persons as a result of the rule. Provides that a cost benefit analysis may contain additional information that the governor or the committee requests in writing. Provides that the governor or the committee may prescribe: (1) the form of a cost benefit analysis; and (2) the process, deadlines, and other requirements for submitting a cost benefit analysis. Provides that in preparing a cost benefit analysis: (1) before a rule's adoption under the existing statute that requires a cost benefit analysis for proposed rules; or (2) after a rule's adoption and effective date under the act; the OMB shall consider any verified data provided voluntarily by interested parties, regulated persons, and nonprofit corporations whose members may be affected by the rule. Provides that if the OMB or an agency is unable to obtain verified data for a cost benefit analysis, the OMB shall state in the analysis which data were unavailable. Provides that a cost benefit analysis prepared before or after a rule's adoption is a public document, subject to the following: (1) The OMB or an agency may not require an interested party or a regulated person to provide information in connection with an analysis. (2) If an interested party or a regulated person voluntarily provides information, the OMB or an agency responsible for proposing or administering the rule shall ensure adequate protection of any confidential or proprietary information provided. (3) At least 30 days before presenting the cost benefit analysis to the governor and the committee, the OMB shall make the cost benefit analysis available to interested parties, regulated persons, and nonprofit corporations whose members may be affected by the rule. Provides that if an agency has adopted rules regarding the confidentiality of information, interested parties and regulated persons must submit the information in accordance with the confidentiality rules adopted by the agency to ensure proper processing of confidentiality claims. Requires the OMB to submit its findings and cost benefit analyses to the committee by electronic means.
Effective: July 1, 2012
PROBATE
HEA 1258
Citations affected: IC 32-36-1
Synopsis: Various estate administration matters. Specifies that an individual holding a beneficial or ownership interest in an entity is considered the transferee when a transferor makes a transfer subject to the inheritance tax to the entity. Provides that the individual is liable for the same percentage of the inheritance tax as the individual's percentage of beneficial or ownership interest in the entity. Eliminates authority to file a recovery claim against the estate of the recipient's spouse. Eliminates rules of will construction that applied only to decedents dying in 2010. Authorizes foreign wills to be probated after the expiration of the probate deadlines for the same limited purposes for which Indiana wills may be probated after the deadlines. Provides that costs of administration include the fee of a surrogate attorney for purposes of determining the priority of claims when an estate's resources are insufficient to pay all claims. Eliminates the requirement that a declaration designating a standby guardian include the Social Security number of the child or protected person. Specifies that a standby guardian has all of the powers granted by the guardianship statute. Provides that amendments to the trust code apply to trusts created prior to the effective date of the amendment unless certain adverse events would occur because of the application of the amendment. Provides that amendments to the transfer on death (TOD) statute apply to TOD transfers created before the effective date of the amendment. Specifies that a testamentary trust receiving a TOD transfer is considered to have been in existence as of the owner's death if the owner's last will and testament is admitted to probate. Provides that the practice of law by a person who is not an attorney is considered racketeering activity for purposes of the law concerning racketeer influenced and corrupt organizations. Removes authority for a transferring entity to adopt rules concerning TOD transfers in whole or in part by incorporation by references. Removes possible exceptions concerning the rules that apply to a beneficiary designation. Provides that a guardian does not need to be appointed if custodial property is less than $10,000. Makes technical corrections. Provides that a personality does not have rights of publicity if the personality has commercial value solely because the personality has been charged with or convicted of a crime. Provides that: (1) a deceased personality's rights of publicity apply to the personality whether the personality died before, on, or after July 1, 1994 (the original effective date of the rights of publicity law); (2) if the personality died before July 1, 1994, the deceased personality's rights of publicity are considered to have existed on and after the date the personality died; (3) a claim for a violation of a personality's right of publicity may not be asserted unless the alleged act or event of violation occurs within Indiana; and (4) a claim for a violation of the personality's right of publicity may not be asserted under this chapter unless the alleged act or event of violation occurs after June 30, 1994. Repeals rules of trust construction that applied only to decedents dying in 2010.
Effective: July 1, 2012
SEA 157
Citations affected: IC 30-5; noncode
Synopsis: Power of attorney and attorney in fact. Provides that a copy of the power of attorney has the same force and effect as the original power of attorney if the person granting the power of attorney certifies that the copy is a true and correct copy. Specifies that a child of the principal may request an accounting with respect to transactions entered into by an attorney in fact. Urges the legislative council to study issues related to powers of attorney during the 2012 interim.
Effective: July 1, 2012
REAL PROPERTY
SEA 156
Citations affected: IC 29-1; IC 32-17
Synopsis: Partition. Establishes a new procedure for partitioning real and personal property that: (1) requires a court to refer the matter to mediation; and (2) requires the court to order that the property be sold using a method the parties agree upon, or if the parties are not able to reach an agreement, at auction. Repeals superseded provisions.
Effective: July 1, 2012
SEA 329
Citations affected: IC 32-24
Synopsis: Eminent domain filing deadlines. Specifies that a party to an eminent domain action aggrieved by the assessment of benefits or damages in a report of the appraisers filed with a court may file written exceptions to the assessment in the office of the circuit court clerk: (1) after the report of the appraisers is filed with the court; and (2) not later than 45 days after the date the circuit court mails the report.
Effective: July 1, 2012
TAX
SEA 293
Citations affected: IC 6-4.1
Synopsis: Inheritance tax. Reclassifies a spouse, widow, or widower of a child of the transferor as a Class A transferee instead of a Class B transferee. Reclassifies a spouse, widow, or widower of a stepchild of the transferor as a Class A transferee instead of a Class C transferee. Increases the inheritance tax exemption amount for Class A transferees from $100,000 to $250,000 with respect to taxable transfers resulting from the deaths of individuals dying after Dec. 31, 2011. Phases out the inheritance tax over 9 years beginning in 2013. Phases out the inheritance tax replacement amounts payable to counties over 10 years beginning with amounts payable for the state fiscal year beginning July 1, 2012.
Effective: Jan. 1, 2012 (retroactive); July 1, 2012