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Bills on courts, forfeiture before governor

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Several Indiana counties will have their Circuit and Superior courts unified and certain judges will no longer have to be less than 70 years old when they take office, thanks to legislation passed during the 2011 session of the General Assembly.

House Enrolled Act 1266 originally intended to create a unified Clark Circuit court, but it became a more expansive bill dealing with court issues as the session progressed. The legislation that passed establishes unified Circuit courts in Clark County – beginning Jan. 1, 2012 – and in Madison and Henry counties, effective July 1, 2011.

HEA 1266 also dictates that Lake Superior County judges are chosen by a nominating commission instead of through elections. The judges appointed by the governor will be up for retention every six years.

buck-jim-mug Buck

The bill ends the age restriction on those who run for Superior and County judicial office. This language is also in Senate Enrolled Act 463, authored by Sen. Jim Buck, R-Kokomo. He said the same language was added into HEA 1266 to try to ensure its survival after the House Democrats walk-out in February.

Buck said no particular judge was the catalyst for the bill, but he heard from several staff members of Superior judges who were concerned about the age limit. He noted that people are living longer these days and the statutes need to reflect this.

“It’s a shame to waste the wisdom and experience these older judges have just because of an arbitrary and out-of-date age limit,” Buck wrote in an email to Indiana Lawyer. “Our Indiana Constitution does not place age restrictions on circuit court judges, so it’s unfair to subject superior court judges to them.”

House Enrolled Act 1153 expands who may participate in problem-solving court programs, when and how to end someone’s participation, and also makes parents and guardians financially responsible for certain fees and expenses assessed against the juvenile involved in problem-solving court programs. HEA 1153 also includes details on the Criminal Law and Sentencing Policy Study Committee.

The budget bill passed by legislators in the waning days of the session included a change to the automated record-keeping fee. Senate Bill 301 originally called for increasing the fee which would help pay for the Judicial Technology and Automation Committee’s implementation of a statewide case-management system and other applications, but that bill did not gain legislative approval. The language that was inserted into the budget bill calls for the current $7 fee to be reduced to $5 after June 30, 2011.

Mary DePrez, director and counsel of trial court technology for JTAC, sees the end result as a positive for the Indiana Supreme Court-supported effort. The fee was scheduled to drop to $4 July 1, so now JTAC will receive an extra dollar with no end date specified. Clerks in counties that don’t use Odyssey will be able to retain $1 of the automated record-keeping fee.

Since SB 301 didn’t pass with the larger fee increases, DePrez said JTAC won’t be able to implement Odyssey as quickly as hoped, but the committee is looking for federal dollars that could speed up the process of getting the system into more courts.

“The court recognizes that these are difficult and challenging financial times for all Hoosiers, and the Legislature is tasked with making critical and difficult decisions, so we are grateful they recognized the importance of what we are doing for the courts, clerks, law enforcement, and probation departments, and I believe that the increase in the fee to $5 is in recognition of that,” she said.

This legislative session also brought changes to how funds from civil forfeiture cases stemming from criminal acts are disbursed to the school common fund, law enforcement, and prosecutors. The law currently allows for police and prosecutors to seize the proceeds of the crime from the offender and file a forfeiture action to use those proceeds to fund law enforcement and prosecutorial efforts, but there were no guidelines or uniformity in distribution around the state.

dePrez-mary-mug DePrez

Indiana Attorney General Greg Zoeller encouraged legislators to establish a formula on how those funds should be distributed. In August 2010, a lawsuit was filed claiming prosecutors have violated the statute that directs money from civil forfeitures to the Indiana Common School Fund. That suit was dismissed in April.

SEA 215 requires money generated in the forfeiture cases to be divided among prosecuting attorneys, law enforcement, and schools. One-third of the proceeds would go to prosecutors; of the remaining dollars, 15 percent would go to the common school fund, and 85 percent would go to an account for law enforcement agencies involved in the seizure for necessary expenses.

On the day it was enacted by the General Assembly, author Sen. Richard Bray, R-Martinsville, said, “This legislation recognizes there are legal costs as well as police agency expenses in prosecuting a forfeiture case and obtaining the funds generated. A top priority in setting the calculation was to cover these expenses, while keeping in mind ways we can help our schools with the money as well.”

The legislation requires the court handling a forfeiture case to notify the Indiana Criminal Justice Institute of the amount and manner of the forfeiture distribution.

The governor has received SEA 215, SEA 463, HEA 1153, and HEA 1266, but had not signed them as of Indiana Lawyer deadline. He has until May 11 to sign HEA 1266, May 12 to sign SEA 463, and May 13 to sign SEA 215 and HEA 1153.

The governor has already signed several other bills including: HEA 1215, which allows for a protected person to attend a hearing through the use of closed-circuit television; and SEA 495, which prohibits a school corporation from using money received from the state to bring or join an action against the state. The law does allow for using state money if the school is challenging an adverse decision by a state agency, board, or commission.

Zoeller supported this legislation, believing non-state dollars should be used to fund these lawsuits. The AG is currently defending the school funding formula in a suit filed by three school corporations – Hamilton Southeastern Schools in Hamilton County, Franklin Township Community Schools in Marion County, and Middleburry Community Schools in Elkhart County. The case is currently before the Indiana Supreme Court pursuant to Indiana Rules of Appellate Procedure 56(A).•
 

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