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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“It’s a shame to waste the wisdom and experience these older judges have just because of an arbitrary and out-of-date age limit,” Buck wrote in an email to Indiana Lawyer.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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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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