The Probate Division cases that were filed in the Gary location would have cause numbers that begin with “45D03” or “45D04”; files on all of those cases are now being reviewed and sorted by Commissioner McAlpin’s staff and that of Courtroom 7 for transfer to the Crown Point Probate Division as active files or for their closure, dismissal or other appropriate disposition.

For more information, please contact Probate Commissioner McAlpin of Lake Superior Court Probate Division under the auspices of Judge Diane Kavadias Schneider, Courtroom 7 of Lake Superior Court’s Civil Division, 2293 N. Main St., Crown Point, IN 46307, 219-755-3305.

Not adopted during the final hours of the legislative session was HB 1316, Indiana’s response to the Federal Tax Reform legislation. Because of this inaction, all businesses will have to calculate federal adjusted gross income tax twice to comply with state and federal tax laws (unless the proposed special session passes the bill).

We’re sad to report that four great lawyer-legislators will not be returning to the Statehouse. Sen. David C. Long announced his impending retirement as did Rep. Thomas W. Washburne. And right before the session began Senators Luke Kenley and Brandt Hershman retired. The ISBA is grateful for their longtime service to the citizens of Indiana.

This summer some of the topics that are expected to be studied are tax on services, child support and alimony.

Here is a brief breakdown of what passed this session:

BANKRUPTCY

SR 39

A Senate Resolution urging Indiana’s congressional delegation to support efforts to modify the U.S. Bankruptcy Code venue requirements.

http://iga.in.gov/legislative/2018/resolutions/senate/simple/39#document-db82e9eb

CHILDREN

SEA 402

Juvenile reports. Requires certain reports concerning juveniles be provided at least 48 hours before a hearing.

http://iga.in.gov/legislative/2018/bills/senate/402#document-58988080

SEA 128

Change of placement of a child in need of services. Requires that, before changing the out-of-home placement of a child who has been in the same out-of-home placement for at least one year, the department of child services (department) must file a motion requesting a change in placement and provide notice to the persons affected. Sets forth the procedures for the department to follow if the department determines the out-of-home placement of the child is placing the child's life or health in imminent danger. Requires the juvenile court to hold a hearing on the question if the person with whom the child is placed files a written objection to the motion.

https://iga.in.gov/legislative/2018/bills/senate/128#document-abc21d71

SEA 135

Department of Child Services notifications for schools. Requires the Department of Child Services to notify the individual designated as the point of contact for a child's school if the child is removed from the child's home. Provides immunity from civil liability for: (1) a guardian ad litem program; (2) a court appointed special advocate program; (3) an employee of or volunteer for a guardian ad litem program or court appointed special advocate program; and (4) an individual acting as a contracted guardian ad litem; when a child is placed on a waiting list for guardian ad litem or court appointed special advocate services. Makes conforming amendments.

https://iga.in.gov/legislative/2018/bills/senate/135#document-5856e3a3

HEA 1228

Data concerning youth in adult court. Requires the criminal justice institute to: (1) track certain information concerning juveniles under the jurisdiction of an adult court due to a juvenile court not having jurisdiction; (2) track certain information concerning waivers of juvenile court jurisdiction; and (3) publish the information annually.

http://iga.in.gov/legislative/2018/bills/house/1228#document-68bd774a

CIVIL LAW

SEA 99

Civil forfeiture. Requires the prosecuting attorney to file an affidavit of probable cause with a court not later than seven days after property is seized, and provides for the return of the property to the owner if the court does not find probable cause. Establishes a procedure for an owner of real property or of a vehicle (if the owner was not operating the vehicle at the time of the seizure) to obtain provisional custody of the seized property pending a final forfeiture determination. Makes the time limit for filing a forfeiture action: (1) 21 days, if the owner has filed a written demand for return of the property; or (2) 90 days, if the owner has not filed a written demand for return of the property. Provides that an owner whose property is returned is not liable for the costs of storage, transportation, or maintenance. Specifies how the proceeds of a forfeiture action are to be distributed. Requires a prosecuting attorney to report certain information concerning forfeitures to the prosecuting attorneys council. Imposes certain requirements on the use and compensation of outside counsel in forfeiture actions, and prohibits a prosecuting attorney or deputy prosecuting attorney from receiving a contingency fee for a forfeiture action.

http://iga.in.gov/legislative/2018/bills/senate/99#document-66871421

CORPORATIONS

SEA 180

Uniform business organizations. Makes various technical amendments to the Uniform Business Organizations Code and Uniform Business Organization Transactions Act, including changes in provisions concerning information to be submitted in filings with the secretary of state, use of business names, registration of foreign entities, and administrative dissolution. Allows an entity that has had its registration revoked to apply to the secretary of state for reinstatement not later than five years after the date of revocation. Allows a domestic entity that has been administratively dissolved to apply to the secretary of state for reinstatement not later than five years after the date of the dissolution. 

http://iga.in.gov/legislative/2018/bills/senate/180#document-022a7c8f

CRIMINAL

HEA 1034

Home detention matters. Eliminates the requirement that a period of home detention ordered as a condition of probation must be at least 60 days. Allows a court to approve activities for an offender that do not require the offender to be confined to the offender's home at all times. Provides that an offender must maintain a working telephone, cellular telephone, or other wireless or cellular communications device in the offender's home as a condition of being on home detention.

http://iga.in.gov/legislative/2018/bills/house/1034#document-57f9cf0c

HEA 1057

Pretrial diversion. Provides that the initial user fee amount for a diversion agreement involving a misdemeanor is $50. Provides that the initial user fee amount for a diversion agreement involving a felony is $75. Allows a court to impose on a person an additional program fee or cost that is reasonably related to the person's rehabilitation. Prohibits a monthly user fee from being collected beyond the maximum length of a possible sentence. 

http://iga.in.gov/legislative/2018/bills/house/1057#document-4f1b11f1

HEA 1173

Trial records. Permits a victim (or the spouse or an immediate family member of a deceased victim) to obtain, free of charge, an electronic copy of the transcript of criminal proceedings in the victim's case. Requires a prosecuting attorney or victim assistance program to assist the victim, spouse, or immediate family member in obtaining the transcript.

http://iga.in.gov/legislative/2018/bills/house/1173#document-b3101a1e

HEA 1328

Bail issues. Provides that murder is not bailable if the state proves by a preponderance of the evidence that the proof is evident or the presumption strong.

http://iga.in.gov/legislative/2018/bills/house/1328#document-45a37629

SEA 64

Sentence modification. Requires a court to advise a defendant, before accepting a guilty plea, that the court will be bound by terms of a plea agreement both at the time of sentencing and with respect to sentence modification. Provides that a court may not, without the consent of the prosecuting attorney, reduce the sentence of a person sentenced under a plea agreement if the reduction was not authorized by the plea agreement. Provides that the prohibition against including a waiver of the right to sentence modification in a plea agreement does not prohibit finding that a person has waived the right to have a court modify a sentence in a manner contrary to the plea agreement. 

https://iga.in.gov/legislative/2018/bills/senate/64#document-350967ed

FAMILY

SEA 179

Child support. Provides that incarceration of a parent may not be considered to be voluntary unemployment in determining an amount to be ordered for support of a child. Provides that a court may modify the child support order, or approve a proposed modification, without holding a hearing if: (1) a petition to modify a child support order based on incarceration of a party is filed; and (2) after receiving notice, no party files an objection or request for a hearing within 30 days. Requires the child support bureau (bureau), beginning July 1, 2019, to notify both parties of each party’s right to request a modification of the child support order not later than fifteen (15) days after learning that an obligor in a Title IV-D case is or may be incarcerated for a period of at least one hundred eighty (180) calendar days. Requires a prosecuting attorney or private attorney entering into an agreement or a contract with the bureau to review all requests for modification of child support due to the incarceration of an obligor within an open Title IV-D case and, if appropriate, file a petition for modification of child support and proposed order in the appropriate court.

http://iga.in.gov/legislative/2018/bills/senate/179#document-8e35835f

SEA 233

Foster parent bill of rights. Requires the department of child services (department), in collaboration with: (1) current foster parents; (2) child placing agencies; and (3) other individuals and organizations with expertise in foster care services; to develop and update a statement of the rights of a foster parent. Requires that the statement of the rights of a foster parent summarize the rights and responsibilities of a foster parent. Requires the department to distribute and publish on the department's Internet web site the statement of the rights of a foster parent.

http://iga.in.gov/legislative/2018/bills/senate/233#document-03c2f28e

PROBATE

HEA 1303

Electronic powers of attorney, trusts, and wills. Allows a testator to execute an electronic will. Specifies requirements pertaining to the: (1) creation; (2) attestation; and (3) execution; of an electronic will. Allows video recordings of an electronic will's execution to be used for demonstrating: (1) proper execution of a will; (2) testator intent; (3) the mental state of a testator; (4) the absence of undue influence or duress with respect to a testator; and (5) verification of the individual identities involved in the execution of an electronic will. Provides exemplar instructions and advisory language to testators with respect to electronic wills. Specifies how to revoke an electronic will. Allows certain electronic records to be used in place of an electronic will. Specifies how to transfer possession of an electronic will from the current custodian to a successor custodian. Specifies the responsibilities of an electronic will custodian. Specifies how to amend, destroy, and revoke an electronic will. Creates a presumption of regularity for electronic wills. Allows electronic wills to be deposited with the clerk of a probate court in certain instances. Explains the probate process for electronic wills. Allows a settlor to create and execute an electronic trust instrument. Specifies how to create and execute an electronic trust instrument. Specifies how to amend or revoke an electronic trust instrument. Specifies who may act as a custodian for an electronic trust instrument. Specifies how an electronic trust instrument may be delivered or transferred. Specifies how to destroy an electronic trust instrument. Creates a presumption of regularity with respect to electronic trust instruments. Allows a person to create and execute an electronic power of attorney. Specifies how to execute a valid electronic power of attorney. Specifies how to amend or revoke an electronic power of attorney. Specifies who may act as a custodian for an electronic power of attorney. Specifies how to destroy an electronic power of attorney. Creates a presumption of regularity with respect to electronic powers of attorney.

http://iga.in.gov/legislative/2018/bills/house/1303#document-e7f8b4be

SEA 247

Creditors' rights. Makes various changes to probate and trust law relating to creditors' claims, claims against nonprobate transferees, and no contest provisions in wills and trusts. Defines "no contest provision". Provides that a no contest provision is enforceable, except under certain circumstances. Provides that the estate recovery unit of the office of Medicaid policy and planning is a reasonably ascertainable creditor if the decedent was at least 55 years of age at the time of death. Extends the time period for county clerks to issue letters testamentary or of administration from five months to seven months. Allows for the deduction of liens, encumbrances, and reasonable funeral expenses from the estate value for purposes of determining whether the estate assets are worth more or less than the threshold value of $50,000. Provides an exception for a county clerk's delay in issuing letters testamentary or letters of administration that is not caused by the fault of the petitioner.

http://iga.in.gov/legislative/2018/bills/senate/247#document-27611c55

SEA 372

Notarial acts. Makes technical changes to standardize language concerning registration of trademarks and regulation related to notarial acts. Specifies requirements related to notarial acts, including use of electronic documentation and technology for electronic notarial acts. Requires the secretary of state to adopt rules related to electronic notarial acts and remote notarial acts. Specifies requirements for remote notarial acts, including: (1) registration of a remote notary public; (2) certification of and record keeping related to remote notarial acts; (3) use of audio visual communication and recording; (4) verification of credentials; and (5) maintenance of records.

http://iga.in.gov/legislative/2018/bills/senate/372#document-50bed3d4

PROPERTY

SEA 197

Various property issues. Amends the statute concerning the Indiana coordinate system for describing real property to provide that coordinates based on specified coordinate systems and used to define the position of a point on a land boundary may not be presented to be recorded unless the recording document also contains: (1) the method used to relate the coordinates to the National Spatial Reference System; and (2) the name and zone of the coordinate system. Eliminates other reporting and certification requirements with respect to such recordings. Provides that if any coordinates (not specifically coordinates based on the Indiana coordinate system, as provided in current law) are used to describe a tract of land that is also described by a reference to the United States public land surveys: (1) the description by coordinates shall be construed as supplemental; and (2) in the event of a conflict, the description by reference to the United States public land surveys prevails over the description by coordinates. Provides that the statute does not require a purchaser or mortgagee of real estate to rely on a description, any part of which depends exclusively upon the Indiana coordinate system, unless the same description was previously used in a document conveying title to the real estate. Amends the Indiana Code provision concerning the establishment of property lines by means of a legal survey to: (1) eliminate the exception to the required notice when all adjoining landowners consent in writing; and (2) specify that the lines established are binding on all affected landowners. Defines "original survey". Defines "retracement survey". Provides that, other than for descriptions of lots in new subdivisions, any new or modified real property description prepared by a professional surveyor as a product of an original survey or a retracement survey must include a caption that identifies: (1) the name and registration number of the professional surveyor preparing the description; and (2) the plat of survey produced as part of the original survey or retracement survey, including certain specified information. Repeals the section in the statute concerning the Indiana coordinate system that provides that the statute does not require a purchaser or mortgagee of real estate to rely on a description, any part of which depends exclusively upon the Indiana coordinate system.

http://iga.in.gov/legislative/2018/bills/senate/197#document-ba173767

HEA 1320

Disposition of tax sale surplus. Amends the definition of "substantial property interest of public record" for purposes of the tax sale statutes to specify that: (1) the term means title to or interest in a tract that is within the tract's chain of record title and either recorded or properly indexed in the county in which the tract is located; and (2) chain of record title includes instruments executed by the owner and recorded within the five day period before the date the owner acquires title to the tract. Eliminates the requirement that a person that redeems property sold in a tax sale must pay an amount equal to the amount deposited in the tax surplus fund at the time of the tax sale. Continues current law requiring the redeeming party to pay 5% interest on that money. Requires that a conveyance recorded after June 30, 2007, must include a statement specifying the mailing address for tax statement purposes and the mailing address of the grantee. Requires that the mailing address of the grantee be a street address or a rural route address. 

http://iga.in.gov/legislative/2018/bills/house/1320#digest-heading

http://www.inbar.org/resource/resmgr/press_releases/PublicNotice-MagistrateJudge.pdf

Apply by Sept. 13.

Beginning May 5, attorneys filing in any court with mandatory e-filing in effect will be required to complete initial filings electronically in the following case types:

AD  --  Adoption

CB  --  Foreign Judgment

CC  --  Civil Collection

CT  --  Civil Tort

DC  --  Domestic Relations with Children*

DN  --  Domestic Relations without Children*

EM  --  Estate, Miscellaneous

ES  --  Estate, Supervised

EU  --  Estate, Unsupervised

GU  --  Guardianship

JP  --  Juvenile Paternity

MF  --  Mortgage Foreclosure

MH  --  Mental Health

MI  --  Miscellaneous Civil

PC  --  Post-Conviction Relief

PL --  Civil Plenary

RS  --  Reciprocal Support

SC  --  Small Claim

TP  --  Verified Petition for Issuance of a Tax Deed*

TR  --  Trust

XP  --  Expungement

*These are new case types under Administrative Rule 8 effective Jan. 1, 2017.

Submitting your initial filing electronically in these cases means you’ll no longer be required to submit any paper copies to the clerk’s office. It also means you, as the filer, will be responsible for serving the initial pleading and summons. Be sure to read Trial Rule 86 in its entirety, and especially Rule 86(G)(2) regarding service of an initial filing.

Also on May 5, subsequent e-filing in criminal cases will be mandatory for attorneys in Clay, LaGrange, Wells and White counties.

Indiana’s conversion to e-filing is a team effort including courts, clerks and the bar. Attorneys have been very pleased with e-filing and we are confident that this next step will benefit attorneys, their clients, the courts, the clerks and all Hoosiers interested in modern, responsive courts. Thank you for your support.

More info

• Visit the statewide e-filing project website.

• Read our E-filing User Guide.

• Get support and training from one of the several e-filing providers available.

• Sign up for email updates if you'd like future news about e-filing.

Download: http://c.ymcdn.com/sites/www.inbar.org/resource/resmgr/docs/Report-January-2017.pdf

Issues dominating this year's legislative session included a road funding strategy for Indiana's crumbling infrastructure, drug intervention and sentencing, Indiana's standardized testing system for elementary-aged students and governing of police video. Other issues of concern this session for the ISBA that did not pass were once again a tax-on-services threat as well as a restructuring of Indiana’s administrative law proceedings (that topic, however, will be studied this summer).

Some of the other bills to pass this session and make it to the governor’s desk for a signature included:

BUSINESS LAW

HEA 1336

Business entities; series limited liability. Makes various changes to the business and other association law, including the following: (1) Requires that an application to reserve or renew a reservation of a name and a notice of transfer of a reserved name must be filed with the secretary of state electronically and makes the corresponding changes to the fees. (2) Establishes requirements concerning plans or filed documents that include terms that are dependent on facts objectively ascertainable outside the plan or filed document for limited liability partnerships, limited partnerships, nonprofit corporations, and limited liability companies. (3) Provides that the name of a limited liability company must be distinguished from the name of any limited liability company or other business entity reserved or organized under the laws of Indiana or authorized to transact business in Indiana. (Current law requires that the name must be distinguished from any limited liability company or other business entity reserved or organized under the laws of Indiana or qualified to transact business as a foreign limited liability company in Indiana.) (4) Allows limited liability companies to organize as series limited liability companies. (5) Adds a fee for filing: (A) articles of organization for a master limited liability company; (B) applications for certificate of authority series; and (C) articles of designation.

CONSTRUCTION LAW

SEA 324

Construction permits and regulation. Provides the following: (1) Provides deadlines for the state department of health (department) to issue construction permits and conduct plan reviews for certain projects. (2) Requires the department to issue a construction permit without further review, if the department fails to provide notice or a complete plan review within the time required by statute. (3) Allows a person to apply for a construction permit from the department and a design release from the division of fire and building safety (division) by submitting a single application to the division. (4) Limits subsequent reviews to revisions and required corrections. (5) Requires the fire protection and building safety commission (commission) to adopt policies and rules to promote preservation and use of downtown commercial buildings located within designated historic districts.

COURTS

SEA 81

Senior judges, judges pro tempore, and oaths. Allows: (1) a senior judge; or (2) a judge pro tempore; serving in a county that has a probate court, a circuit court, or a superior court judge to, with the consent of the judge of the probate court, circuit court, or a superior court in the county, sit as the judge of the consenting judge's court in any matter as if the senior judge or judge pro tempore were the elected judge or appointed judge of the court. Provides that a judge pro tempore may serve as a judge of a court regardless of whether the appointed or elected judge of the court is present and available in the building that contains the court.

HEA 1047

Court motion clerk pilot program. Permits the Indiana judicial center to establish a circuit and superior court motion clerk pilot program (pilot program) to provide assistance to courts with preparing orders for complex motions. Provides that the judicial center shall administer the pilot program. Requires the committee to receive reports concerning the pilot program, and allows the committee to make recommendations and to propose legislation concerning the pilot program.

CRIMINAL

SEA 160

Juvenile law. Allows an adult court having jurisdiction over a minor charged with an offense requiring the automatic transfer of jurisdiction to the adult court to withhold judgment and transfer jurisdiction to the juvenile court for adjudication and disposition if the minor is convicted of an offense, but not convicted of an offense requiring the automatic transfer of jurisdiction to the adult court. Allows an intake officer to impose conditions upon the release of a child who was not taken into custody under an order of the court. Requires the juvenile court to hold a detention hearing within 48 hours if an intake officer imposes conditions of release upon a child.

SEA 290

Criminal law matters. Provides that a person may be convicted of possession with intent to manufacture or deliver a controlled substance without additional evidence of intent to manufacture or deliver if the person possesses more than a specified quantity of the controlled substance. Specifies that the fact that an individual has attended a syringe exchange program may not form any part of a probable cause or reasonable suspicion determination. Permits a person placed on home detention as a condition of pretrial release to earn one day of good time credit for every four days served on pretrial home detention.

HEA 1105

Prosecutions for rape and criminal deviate conduct. Specifies that certain exceptions to the statute of limitations for rape as a Level 3 felony also apply to rape as a Class B felony (for crimes committed before July 1, 2014). Provides that a prosecution for criminal deviate conduct as a Class B felony for an offense committed before the crime was repealed on July 1, 2014, that would otherwise be barred may be commenced not later than five years after the earliest of the date on which: (1) the state first discovers evidence sufficient to charge the offender with the offense through DNA analysis; (2) the state first becomes aware of the existence of a recording that provides evidence sufficient to charge the offender with the offense; or (3) a person confesses to the offense. Provides that state educational institution and approved postsecondary educational institution student advocate office employees and volunteers who provide services to certain victims have testimonial privilege regarding confidential victim information.

HEA 1235

Drug offenses. Specifies that Level 2 controlled substance offenses are nonsuspendible if: (1) the offense involves methamphetamine or heroin; and (2) the person has a prior felony conviction for dealing in certain controlled substances.

ELDER LAW

SEA 192

Guardianship and adult protective services report. Urges the legislative council to assign to the appropriate committee a study of the visitation, communication, and interaction with a protected person. Requires the family and social services administration (FSSA), in cooperation with the Indiana prosecuting attorneys council (IPAC), to prepare and submit a report to the legislative council before December 1, 2016, concerning adult protective services. Specifies that the report must include: (1) an estimation of appropriate staffing levels necessary to efficiently and effectively manage the investigations of reports of matters related to the abuse, neglect, or exploitation of endangered adults; (2) identification of: (A) the circumstances that should result in emergency placement in the case of an adult protective services investigation; (B) the appropriate types of emergency placements based on those circumstances; and (C) strategies for improving emergency placement capabilities; (3) consideration of the benefits and cost of establishing a centralized intake system for reports of matters related to the abuse, neglect, or exploitation of endangered adults; (4) a statement of consistent standards of care for endangered adults; (5) a determination of the appropriate levels of training for employees who are involved in providing adult protective services; (6) a draft of a cooperative agreement between the FSSA and IPAC that sets forth the duties and responsibilities of the agencies and county prosecuting attorney offices with regard to adult protective services; and (7) Performance goals and accountability metrics for adult protective services to be incorporated in contracts and grant agreements. Provides that the FSSA shall present the report to the state budget committee.

SEA 221

Securities and financial protection. Defines "financially endangered adult" as an individual who is: (1) at least 65 years of age; or (2) at least 18 years of age and is incapable, by reason of certain mental or physical incapacities, of managing the individual's property. Defines "qualified individual" as an individual associated with a broker-dealer who serves in a supervisory, compliance, or legal capacity as part of the individual's job. Provides that "protective agencies" refers to the adult protective services unit and the securities commissioner. Requires that a qualified individual who has reason to believe that financial exploitation of a financially endangered adult has occurred, has been attempted, or is being attempted shall make a report and notify the protective agencies. Allows a qualified individual to refuse a request for disbursement of funds from an account: (1) owned by a financially endangered adult; or (2) of which a financially endangered adult is a beneficiary or beneficial owner; if the qualified individual has reason to believe that the requested disbursement will result in financial exploitation of the financially endangered adult. Establishes requirements for notification by a broker-dealer or qualified individual if a qualified individual refuses a request for disbursement of funds. Provides for expiration of the refusal of disbursement. Provides broker-dealers and qualified individuals certain immunity from administrative or civil liability. Allows broker-dealers to provide to certain entities access to or copies of records relevant to a suspected financial exploitation. 

ENVIRONMENTAL

SEA 255

Underground petroleum storage tanks. Provides for the underground petroleum storage tank excess liability trust fund to be referred to as the "ELTF". Eliminates a provision stating that fees and penalties paid in connection with underground petroleum storage tanks are a source of funds for the ELTF. (Under IC 13-23-6-2 and IC 13-23-12-4, those fees and penalties are deposited in the underground petroleum storage tank trust fund, not in the ELTF.) Repeals IC 13-23-7-9, a provision under which knowingly or intentionally making a material misstatement in connection with an application for financial assistance from the ELTF is a Level 6 felony. (IC 13-23-9-6, a nearly identical provision, is not repealed.) Eliminates the authority of the department of revenue to impose a lien on the property of an underground storage tank owner for failure to pay annual registration fees. Eliminates certain conditions for the payment of claims from the ELTF and limits on the amounts that can be paid from the ELTF under certain circumstances, and provides instead that the administrator of the ELTF shall pay claims that are: (1) for costs related to "eligible releases"; (2) submitted by an "eligible party"; and (3) submitted in accordance with certain requirements. Provides that the administrator of the ELTF: (1) shall pay claims according to a certain priority payment system if the balance in the ELTF drops below $25,000,000; and (2) shall cease paying claims if the balance in the ELTF becomes insufficient to pay ELTF claims and necessary personnel and administrative expenses. Prohibits the administrator of the ELTF from paying: (1) more than $2,500,000 from the ELTF per eligible release; or (2) more than $10,000,000 from the ELTF per fiscal year. Provides that the total amount otherwise available from the ELTF in connection with an eligible release shall be reduced by a "deductible amount" of $15,000 and, if applicable, the sum of: (1) all annual registration fees for underground storage tanks (USTs) located at the site of the eligible release that were due in 1991 or later and not paid in the year they were due; and (2) an additional $1,000 for each UST annual registration fee not paid in the year it was due. Revises provisions concerning the procedure for submitting and paying claims for payment from the ELTF. Requires the department of environmental management, using money from the ELTF, to arrange for an independent actuarial study examining the future obligations and fiscal sustainability of the ELTF once every five years. 

HEA 1300

Environmental management matters. Eliminates references to certain administrative rules that have been repealed. Revises the definition of the term "land application". Provides that the terms "land application operation" and "solid waste" apply to the chapter of the law on wastewater management. Changes the conditions under which the commissioner of the department of environmental management (department) may revoke a temporary variance from an environmental administrative rule. Revises a provision concerning the type of: (1) NPDES permit applications; and (2) applications to renew or modify NPDES permits; for which an antidegradation review is required. Requires the environmental rules board (board) to adopt rules concerning land application of solid waste and industrial waste products. Repeals a section providing for the expiration of the law on mercury switches in end of life vehicles. Changes, from December 31, 2015, to May 1, 2016, the date by which the commissioner of the department is required to submit a report summarizing the information obtained from recycling activity reports concerning the previous calendar year. Amends the law concerning the department's annual report on the implementation of the electronic waste law to provide that the report must discuss the total weight of covered electronic devices recycled during the previous program year (rather than fiscal year). Provides that the statute concerning environmental legal actions does not apply to an action brought by the state arising from a site considered a high priority site or the site of a release considered a high priority release under the rules of the board concerning priorities in the selection of hazardous substance response sites. Specifies that, under the law concerning rates and charges established by regional water, sewage, and solid waste districts, just and equitable rates and charges are those that give due consideration to the interests of the ratepayers.

FAMILY

SEA 91

Release of identifying adoption information. Repeals, effective July 1, 2018, 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. Provides that, beginning July 1, 2018, identifying adoption information may be released unless a nonrelease form is on file, regardless of when the adoption was filed. (Under current law, this provision applies only to adoptions filed after December 31, 1993.) Replaces a nonrelease form with a contact preference form. Provides that a nonrelease form submitted before July 1, 2018, remains in effect unless the form lapses.

SEA 250

Parenting coordinators. Urges the legislative council to assign to the appropriate committee a study of the use of parenting coordinators in resolving custody and parenting conflicts.

HEA 1064

Terminating the parent-child relationship. Allows a parent who is the victim of an act of rape from which a child was conceived to file a petition to terminate the parent-child relationship between the child and the alleged perpetrator of the act of rape. Requires a court to terminate the parent-child relationship if the court finds: (1) by clear and convincing evidence that the alleged perpetrator committed an act of rape against the parent who filed the petition to terminate the parent-child relationship and that the child was conceived as a result of the act of rape; and (2) that terminating the parent-child relationship would be in the best interests of the child. Prohibits a parent who is at least 18 years of age at the time the act of rape occurred from filing a petition more than 180 days after the birth of the child. Prohibits a parent who is less than 18 years of age at the time the act of rape occurred from filing a petition more than 2 years after reaching the age of 18. Requires a court to stay the termination of the parent-child relationship proceedings if the court receives a notice from the department of child services that the child is the subject of a pending child in need of services petition.

SEA 1069

No contact and protective orders and battery. Allows a petition to be filed with the juvenile court to order a person to refrain from contact with a member of a foster family home. Makes battery a Class A misdemeanor instead of a Class B misdemeanor if the offense is committed against a member of a foster family home by a person who is not a resident of the foster family home if the person who committed the offense is a relative of a person who lived in the foster family home at the time of the offense. Makes the offense a Level 6 felony if it results in bodily injury to a member of the foster family. Removes the sentencing enhancement for battery committed against a family or household member in the presence of a child from the battery statute and places it in the domestic battery statute. Specifies that numerous provisions in the battery statute constitute domestic battery if they are committed against a family or household member. Makes certain other changes to penalties concerning the offense of battery. Provides that a person who knowingly or intentionally violates a no contact order in a child in need of services proceeding or in a juvenile delinquency proceeding commits a Level 6 felony. Makes conforming amendments.

LITIGATION

SEA 28

Medical malpractice. Increases the amount of recoverable damages for injury or death to a patient. Increases health care provider liability limits. Defines "final nonappealable judgment." Specifies that claims from the patient's compensation fund must be paid not later than 60 days after the issuance of a court approved settlement or final nonappealable judgment. Increases amounts paid to: (1) health care provider members; and (2) the chairman; of the medical review panel. Provides that attorney fees may not exceed 32% of the total recovery. Adds anesthesiologist assistants to the definition of health care providers for purposes of the law concerning medical malpractice.

SEA 1127

Civil proceeding advance payment transactions. Defines a "civil proceeding advance payment transaction", or "CPAP transaction", as a nonrecourse transaction in which a person (CPAP provider) provides to a consumer claimant in a civil proceeding a funded amount, the repayment of which is: (1) required only if the consumer claimant prevails in the civil proceeding; and (2) sourced from the proceeds of the civil proceeding. Permits a CPAP provider to charge: (1) a fee not exceeding an annual rate of 36% of the funded amount; (2) a servicing charge not exceeding an annual rate of 7% of the funded amount; and (3) a one time document fee not exceeding: (A) $250 for a CPAP transaction with a funded amount of less than $5,000; and (B) $500 for a CPAP transaction with a funded amount of at least $5,000; in connection with a CPAP transaction. Specifies that other than these fees and charges, a CPAP provider may not assess or collect any other fee or charge in connection with a CPAP transaction. Specifies that a CPAP transaction is not a loan. Specifies that provisions in the Uniform Consumer Credit Code (UCCC) concerning the regular schedule of payments and maximum loan term that otherwise apply to supervised loans do not apply to CPAP transactions. Establishes certain requirements, including specified disclosures, for a CPAP contract and requires that, if the consumer entering into the CPAP transaction is represented by an attorney, the consumer's attorney must review the CPAP contract. Sets forth prohibited acts with respect to: (1) CPAP providers; and (2) attorneys representing consumer claimants. Provides that after December 31, 2016, a person may not regularly engage in the business of making CPAP transactions in Indiana unless the person obtains, and maintains on an annual basis, a CPAP license issued by the department of financial institutions (department). Allows the department to adopt rules or policies to implement these provisions

PROBATE

SEA 31

Probate study subcommittee. Establishes a probate study subcommittee of the interim study committee on courts and the judiciary.

SEA253

Uniform Fiduciary Access to Digital Assets Act. Enacts the Revised Uniform Fiduciary Access to Digital Assets Act of the National Conference of Commissioners on Uniform State Laws. Defines "digital asset" as an electronic record in which an individual has a right or interest. Defines "custodian" as a person that carries, maintains, processes, receives, or stores a digital asset. Defines "user" as a person for whom a custodian carries, maintains, processes, receives, or stores the digital asset. Defines "fiduciary" as an attorney in fact, guardian, personal representative, or trustee of a user. Authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user's digital assets. Provides that if an online tool allows the user to modify or delete a direction at all times, a user's direction to the custodian through use of the online tool concerning disclosure overrides a contrary direction by the user in a will, trust, power of attorney, or other record, but otherwise the user, in a will, trust, power of attorney, or other record, may allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets. Requires a custodian, under certain circumstances, to disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user, or a catalogue of electronic communications sent or received by the user. Requires a custodian, under certain circumstances, to disclose to an attorney in fact the content of the electronic communications of the user, or a catalogue of electronic communications sent or received by the user, if the user, through a power of attorney, conferred upon the attorney in fact authority over the content of electronic communications sent or received by the user. Requires a custodian, under certain circumstances, to disclose to a trustee the content of an electronic communication sent or received by a user and carried, maintained, processed, received, or stored by the custodian in the account of the trust, or to disclose to the trustee a catalogue of electronic communications sent or received by a user and stored, carried, or maintained by the custodian in the account of the trust. Provides that a court may grant a guardian access to the digital assets of the protected person and that, under certain circumstances, a custodian is required to disclose to a guardian a catalogue of electronic communications sent or received by the protected person. Authorizes a fiduciary of a user to request that a custodian terminate the user's account. Provides that, if the conditions for compliance are met, a custodian must comply with a request from a fiduciary to disclose digital assets or terminate an account within 60 days, and if the custodian fails to comply with the request, the fiduciary may apply for a court order directing compliance. Provides that the legal duties imposed on a fiduciary charged with managing tangible property also apply to a fiduciary charged with managing digital assets. Amends the law on unsupervised administration of a decedent's estate to provide that a distributee has the same rights as a personal representative to access the digital assets of the decedent. Makes conforming amendments. Provides that a custodian is immune from liability for an act done or omission made in good faith in compliance with the Revised Uniform Fiduciary Access to Digital Assets Act.

SEA 371

Probate matters. Provides that an individual otherwise qualified for certain property tax deductions for property that the individual occupies as a beneficiary of the trust that owns the property is not required to be considered the owner of the property under the rules of construction for the property tax law for the trust to receive the property tax deduction. Transfers certain inheritance tax duties from the probate court, county assessor, and county treasurer to the department of state revenue with respect to inheritance tax returns filed after March 31, 2016. Revises the inheritance tax allocation statute so that the current allocation between the counties and the state is unaffected by the transfer of inheritance tax duties. Provides that a will contest must be initiated in the same cause of action. Specifies the priority of a personal representative and stepchildren with respect to the disposition of a decedent's body and funeral arrangements. Specifies that a court must consider a standby guardian designation when appointing a guardian. Specifies that for purposes of a guardianship appointment, a person designated a standby guardian is second in priority to a person designated in a durable power of attorney. Specifies how property passes in a transfer on death transfer if the beneficiary disclaims the property.

REAL PROPERTY

SEA 300

Appraisement and real estate brokers. Removes the requirement that property sold at sheriff's sale be appraised. Adds to the existing list of acts that are exempt from the statute governing the licensure of real estate brokers the performance of an evaluation of real property by a financial institution in connection with a transaction for which the financial institution would not be required to use the services of a state licensed appraiser under regulations adopted under Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.

SEA 355

Tax sales and tax sale properties. Provides that certain notices of tax sales may omit the descriptions of the properties to be offered for sale if: (1) the notice includes a statement indicating that descriptions of the properties and minimum bids are available on the Internet web site of the county government or the county government's contractor and in printed form upon request; and (2) the descriptions of the properties are made available on the county's Internet web site and in an electronic format, on a digital storage medium, or in printed form upon request. Provides that if a county auditor or county executive has published information concerning properties to be sold in a tax sale on the Internet web site of the county government or the county government's contractor, a person who requests information concerning descriptions of those properties in an alternative form may specify that the person prefers to receive the information in an electronic format, on a digital storage medium, or in printed form. Provides that if an owner of property that has been sold at a tax sale sells the property during the redemption period: (1) the amount the buyer must pay to redeem the property includes any excess amount that was paid by the winner bidder at the tax sale and that is being held in the tax sale surplus fund; (2) a county recorder may not record the conveyance document unless the buyer has redeemed the property; and (3) if the buyer does not redeem the property before the end of the redemption period, the conveyance is inoperable and void. Gives the attorney general the power to enforce current law pertaining to agreements for compensation to locate, deliver, recover, or assist in the recovery of money deposited in a tax sale surplus fund with respect to real property as a result of a tax sale. Provides that when a governmental entity or the state becomes the owner of real property with unpaid property taxes, delinquencies, fees, special assessments, and penalties assessed against the real property, the department of local government finance may release the lien against the real property and cancel these assessments with respect to the governmental entity, the state, or a subsequent purchaser, regardless of whether the property taxes were assessed before or after the governmental entity or the state became the owner of the real property. Specifies that the cancellation of the assessments and the release of the corresponding lien does not affect the liability of any person that is personally liable for the assessments.

HEA 1068

Assessment appeals. Provides that, if the county property tax assessment board of appeals (PTABOA) fails to issue a determination concerning a petition to correct errors within 180 days after the petition is filed with the county auditor, the taxpayer may petition the Indiana board of tax review (Indiana board) to correct errors in a final administrative determination. Provides that, if the PTABOA fails to approve or disapprove an exemption application within 180 days after an owner files the exemption application, the owner may petition the Indiana board to approve or disapprove the exemption application. Provides that the Indiana board is authorized to approve or disapprove an exemption application: (1) previously submitted to a PTABOA; and (2) that is not approved or disapproved by the PTABOA within 180 days after the owner filed the application for exemption. Provides that the county assessor is a party to a petition to the Indiana board to approve or disapprove an exemption application.

HEA 1222

Condominiums and homeowners associations. Makes the following amendments to the statutes concerning condominiums and homeowners associations: (1) Provides that notice of a proposed amendment of a condominium declaration or the governing documents of a homeowners association is required only with respect to first mortgage holders that provide an address to the secretary of the board of directors of the condominium association or homeowners association, as applicable. (2) Provides that a condominium co-owner or a homeowners association member is entitled to attend any meeting of the condominium's or homeowners association board, including an annual meeting. Provides that the board of directors may meet in private to discuss delinquent assessments or litigation matters. (3) Repeals provisions requiring condominium instruments and the governing documents of homeowners associations to include grievance resolution procedures. (4) Makes technical changes. Makes the following amendments to the statute concerning homeowners associations: (1) Specifies that certain provisions of the homeowners association statute apply to a homeowners association established before July 1, 2009, regardless of whether the members of the homeowners association have elected to be governed by the statute. (2) Provides that a homeowners association is not required to disclose communications that: (A) are initiated by the association or by a member of the association; and (B) concern suspected criminal activity by another member of the association. (3) Provides that in an enforcement action by the attorney general under the statute, the court may impose a civil penalty not exceeding $500 on an individual determined by the court to have exercised a proxy in violation of the statute.

ZONING

HEA 1025

Alternate rezoning procedure. Creates an optional alternate procedure to apply to rezoning proposals that provides the following: (1) If the plan commission makes a favorable recommendation, the rezoning proposal becomes effective unless an aggrieved person or the legislative body notifies the plan commission by a specified date. (2) If the plan commission makes an unfavorable recommendation or no recommendation, the rezoning proposal is defeated unless an aggrieved person or the legislative body notifies the plan commission by a specified date. (3) If the plan commission is notified by an aggrieved person or the legislative body by a specified date, the legislative body shall consider and make the final determination on the rezoning proposal. Reconciles a conflict in a statute concerning rezonings within an excluded city.

The Price Media Law fact pattern involved a fictional country that passed two separate statutes aimed at defeating hate speech and terrorism. Within the fact pattern, a fictional politician, who was employed as a justice within the state, published posts on social media that were viewed as incitement of violence to some and satire to others. Here, the state dealt with imminent ethnic violence at the hands of a terrorist group that shared the underlying message the politician attempted to convey.

This fact pattern is highly reflective of current events involving the encouragement of terrorism on social media sites such as Twitter. Presently, ISIS has taken to these channels to promote an anti-Western agenda that includes broadcasts of executions. Most notable was the James Foley incident where a masked individual executed an American journalist. Here, it was determined that the masked executioner had a British accent. As a direct result of this, countries such as the United Kingdom and the United States have examined ways to address the encouragement of terrorism.

Internationally, member states under the United Nations look to the International Covenant on Civil & Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) for guidance on maintaining the civil rights and safety of their citizens. The ICCPR and UDHR both shed light on the freedom of expression as a universal right. However, this right is not absolute and may be limited when confronted with a legitimate interest. Also important to these two universal documents is the right of privacy. Here, no individual may be subject to arbitrary interference with his or her personal privacy.

Laws in Denmark, the United Kingdom and the United States are highly reflective of the fictional No Hate Law and the Anti-Terrorism & Extremism Law. Here, the team dissected case law focused on these laws, which showed how a functioning society could address legitimate interests, in a practical way, by passing and enforcing such laws. By cooperating with United Nations documents, the fictional laws are in turn binding on state parties to the UN Charter. For this reason, the argument advanced by our team is hard to defeat.

It is the team’s goal to return to the competition at the University of Oxford and advance as we had done in the Americas regional tournament (http://pricemootcourt.socleg.ox.ac.uk/2016/02/americas-regional-rounds-in-new-york-completed). The international rounds will take place March 30 through April 2. Placing as finalists in this tournament would certainly capture the international law community’s attention in a favorable way for Valparaiso University in Indiana. Wish us luck – Robert Swaby and Brandon Mason, applicants; Marcya Burden, researcher; Gurhan Heinert and Carlos Del Rio, respondents; and Osbaldo Santiago and Michael Sanchez, coaches. – Carlos Del Rio

The current term of office of United States Magistrate Judge Debra McVicker Lynch at Indianapolis, Ind., is due to expire on Oct. 23, 2016. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term.

The duties of a magistrate judge position include the following: (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and (4) trial and disposition of civil cases upon consent of the litigants.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to Laura A. Briggs, Clerk, Attn: Reappointment Panel, U.S. District Court, 46 E. Ohio St., Room 105, Indianapolis, IN 46204. Comments may also be submitted via email to: localrules@insd.uscourts.gov.

Comments must be received by Monday, Jan. 4, 2016.

Due to the anticipated retirement of the incumbent magistrate judge, the Judicial Conference of the United States has authorized the appointment of a full-time United States magistrate judge for the Northern District of Indiana at the South Bend division. 

The duties of the position are demanding and wide-ranging: conduct of most preliminary proceedings in criminal cases; trial and disposition of misdemeanor cases; conduct of various pretrial matters and evidentiary proceedings on delegation from a district judge; and trial and disposition of civil cases upon consent of the litigants. The basic jurisdiction of a United States magistrate judge is specified in 28 U.S.C. §636.

To be qualified for appointment an applicant must:

1) Be, and have been for at least five years, a member in good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years (with some substitutes authorized);

2) Be competent to perform all the duties of the office; be of good moral character; be emotionally stable and mature; be committed to equal justice under the law; be in good health; be patient and courteous; and be capable of deliberation and decisiveness;

3) Be less than seventy years old; and

4) Not be related to a judge of the district court.

A merit selection panel composed of attorneys and other members of the community will review all applications and recommend to the district judges in confidence the five persons it considers best qualified. The court will make the appointment following an FBI full-field investigation and an IRS tax check of the applicant selected by the court for appointment. The individual selected must comply with the financial disclosure requirements pursuant to the Ethics in Government Act of 1978, Pub. L. No. 95-521, 90 Stat. 1824 (1978) (codified at 5 U.S.C. app. 4 §§ 101-111) as implemented by the Judicial Conference of the United States. An affirmative effort will be made to give due consideration to all qualified applicants without regard to race, color, age (40 and over), gender, religion, national origin, or disability. The current annual salary of the position is $185,012. The term of office is eight years.

An application form may be obtained from www.innd.uscourts.gov or from the clerk of the district court. Persons interested in applying must submit their application packet electronically in PDF format and include a cover letter indicating interest in the position, completed application form, and any supporting documentation. Submissions can be e-mailed to humanresources@innd.uscourts.gov and must be submitted only by applicants personally. Application packets must be received by close of business Jan. 31, 2016.

All applications will be kept confidential, unless the applicant consents to disclosure, and all applications will be examined only by members of the merit selection panel and the judges of the district court. The panel’s deliberations will remain confidential.

Complete job description: Click HERE

Apply by: until filled.