*SB0280.1*
January 20, 2023
SENATE BILL No. 280
_____
DIGEST OF SB 280 (Updated January 17, 2023 10:32 am - DI 140)
Citations Affected: IC 33-39.
Synopsis: Prosecuting attorneys. Establishes a special prosecuting
attorney unit as a division of the prosecuting attorneys council of
Indiana (IPAC) to: (1) take special prosecutor appointments; and (2)
increase the number of qualified special prosecutors. Establishes the
Indiana prosecuting attorney commission as a division of IPAC to: (1)
make recommendations to the general assembly concerning staffing for
prosecuting services; (2) adopt guidelines and standards for attorney
services; and (3) provide reimbursement to counties for expenses
incurred in connection with attorney services. Makes conforming
amendments.
Effective: July 1, 2023.
Freeman, Koch, Glick
January 11, 2023, read first time and referred to Committee on Corrections and Criminal
Law.
January 19, 2023, reported favorably — Do Pass; reassigned to Committee on
Appropriations.
SB 280—LS 7225/DI 106 January 20, 2023
First Regular Session of the 123rd General Assembly (2023)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2022 Regular Session of the General Assembly.
SENATE BILL No. 280
A BILL FOR AN ACT to amend the Indiana Code concerning
courts and court officers.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 33-39-7-8, AS AMENDED BY P.L.57-2014,
2 SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2023]: Sec. 8. (a) As used in this chapter, "services" means
4 the sum of all periods in which a person is employed as:
5 (1) a prosecuting attorney or chief deputy prosecuting attorney;
6 (2) any other deputy prosecuting attorney who is:
7 (A) appointed under IC 33-39-6-2; and
8 (B) paid by the state from the state general fund; or
9 (3) the executive director or the assistant executive director of the
10 prosecuting attorneys council of Indiana; or
11 (4) a special prosecuting attorney appointed under
12 IC 33-39-8-8.
13 If an individual is elected or appointed to a position described in
14 subdivisions (1) through (3) (4) and serves one (1) or more terms or
15 part of a term, then retires from office or otherwise separates from
16 service, but at a later period or periods is appointed or elected and
17 serves in a position described in subdivisions (1) through (3), (4), the
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1 individual shall pay into the fund during all the periods that the
2 individual serves in that position, except as otherwise provided in this
3 chapter, whether the periods are connected or disconnected.
4 (b) A senior prosecuting attorney appointed under IC 33-39-10-1 is
5 not required to pay into the fund during any period of service as a
6 senior prosecuting attorney.
7 SECTION 2. IC 33-39-7-12, AS AMENDED BY P.L.160-2013,
8 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
9 JULY 1, 2023]: Sec. 12. (a) Except as otherwise provided in this
10 section, each participant shall make contributions to the fund as
11 follows:
12 (1) A participant described in section 8(a)(1) of this chapter shall
13 make contributions of six percent (6%) of each payment of salary
14 received for services after December 31, 1989.
15 (2) A participant described in section 8(a)(2), or 8(a)(3), or
16 8(a)(4) of this chapter shall make contributions of six percent
17 (6%) of each payment of salary received for services after June
18 30, 1994.
19 A participant's contributions shall be deducted from the participant's
20 monthly salary by the auditor of state and credited to the fund.
21 (b) The state may pay the contributions for a participant. The state
22 may elect to pay the contribution for the participant as a pickup under
23 Section 414(h) of the Internal Revenue Code.
24 (c) After a participant has contributed to the fund as provided in
25 subsection (a) for twenty-two (22) years, the participant is not required
26 to make additional contributions to the fund.
27 (d) After December 31, 2011, the auditor of state shall submit the
28 contributions paid by or on behalf of a participant under this section by
29 electronic funds transfer in accordance with section 12.5 of this
30 chapter.
31 SECTION 3. IC 33-39-8-8 IS ADDED TO THE INDIANA CODE
32 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
33 1, 2023]: Sec. 8. (a) For purposes of this section, "unit" means the
34 special prosecuting attorney unit established by subsection (b).
35 (b) The special prosecuting attorney unit is established within
36 the council.
37 (c) The unit reports to the executive director of the council or
38 the executive director's designee.
39 (d) The unit is established to:
40 (1) take appointments as a special prosecuting attorney under
41 IC 33-39-10; and
42 (2) increase the number of qualified special prosecuting
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1 attorneys available for appointment under this article.
2 (e) The unit consists of the following:
3 (1) A division chief.
4 (2) Attorneys serving as special prosecuting attorneys.
5 (3) Other support staff deemed necessary to support the unit.
6 (f) The council shall establish staffing ratios for support staff
7 and workload measures for attorneys assigned to the unit.
8 (g) Unit attorneys and support staff must be appointed by the
9 executive director of the council.
10 SECTION 4. IC 33-39-8-9 IS ADDED TO THE INDIANA CODE
11 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
12 1, 2023]: Sec. 9. (a) The maximum salary paid to an attorney
13 appointed by the executive director under this chapter may not
14 exceed the annual salary paid by the state to a chief deputy
15 prosecuting attorney.
16 (b) The salary of support staff must be consistent with pay
17 schedules approved by the executive director of the council.
18 SECTION 5. IC 33-39-8-10 IS ADDED TO THE INDIANA CODE
19 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
20 1, 2023]: Sec. 10. (a) The special prosecuting attorney unit fund is
21 established. The council shall administer the fund. Expenditures
22 from the fund may be made only in accordance with
23 appropriations made by the general assembly.
24 (b) The council may use money from the fund to provide:
25 (1) supplies;
26 (2) logistics;
27 (3) administration;
28 (4) personnel;
29 (5) training;
30 (6) technical assistance; and
31 (7) other reasonable support;
32 to establish and maintain the special prosecuting attorney unit
33 established by section 8 of this chapter.
34 (c) The treasurer of state shall invest the money in the fund not
35 currently needed to meet the obligations of the fund in the same
36 manner as other public funds may be invested.
37 (d) The council may supplement the fund with money received
38 under IC 33-39-10-2(g), if:
39 (1) the council makes a claim with an appointing county under
40 IC 33-39-10-2(g) for a special prosecuting attorney's services;
41 and
42 (2) the claim is approved by the judge from the appointing
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1 judicial circuit.
2 (e) Money in the fund at the end of each state fiscal year does
3 not revert to the state general fund.
4 SECTION 6. IC 33-39-10-2, AS ADDED BY P.L.57-2014,
5 SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
6 JULY 1, 2023]: Sec. 2. (a) A person may be appointed as a special
7 prosecutor:
8 (1) as provided under this section; or
9 (2) in accordance with IC 4-2-7-7.
10 (b) A circuit court or superior court judge:
11 (1) shall appoint a special prosecutor if:
12 (A) any person, other than a prosecuting attorney or the
13 prosecuting attorney's deputy, files a verified petition
14 requesting the appointment of a special prosecutor; and
15 (B) the prosecuting attorney agrees that a special prosecutor is
16 needed;
17 (2) may appoint a special prosecutor if:
18 (A) a person files a verified petition requesting the
19 appointment of a special prosecutor; and
20 (B) the court, after:
21 (i) notice is given to the prosecuting attorney; and
22 (ii) an evidentiary hearing is conducted at which the
23 prosecuting attorney is given an opportunity to be heard;
24 finds by clear and convincing evidence that the appointment
25 is necessary to avoid an actual conflict of interest or there is
26 probable cause to believe that the prosecuting attorney has
27 committed a crime;
28 (3) may appoint a special prosecutor if:
29 (A) the prosecuting attorney files a petition requesting the
30 court to appoint a special prosecutor; and
31 (B) the court finds that the appointment is necessary to avoid
32 the appearance of impropriety;
33 (4) may appoint a special prosecutor if:
34 (A) an elected public official who is a defendant in a criminal
35 proceeding files a verified petition requesting a special
36 prosecutor within ten (10) days after the date of the initial
37 hearing; and
38 (B) the court finds that the appointment of a special prosecutor
39 is in the best interests of justice; and
40 (5) shall appoint a special prosecutor if:
41 (A) a previously appointed special prosecutor:
42 (i) files a motion to withdraw as special prosecutor; or
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1 (ii) has become incapable of continuing to represent the
2 interests of the state; and
3 (B) the court finds that the facts that established the basis for
4 the initial appointment of a special prosecutor still exist.
5 The elected prosecuting attorney who serves in the jurisdiction of
6 the appointing court shall receive notice of all pleadings filed and
7 orders issued under this subdivision.
8 (c) A person appointed to serve as a special prosecutor:
9 (1) must consent to the appointment; and
10 (2) must be:
11 (A) the prosecuting attorney or a deputy prosecuting attorney
12 in a county other than the county in which the person is to
13 serve as special prosecutor; or
14 (B) a senior prosecuting attorney as described in section 1 of
15 this chapter. A senior prosecuting attorney may be appointed
16 to serve as a special prosecutor in a county in which the senior
17 prosecuting attorney previously served if the court finds that
18 the appointment would not create the appearance of
19 impropriety.
20 (d) A person appointed to serve as a special prosecutor in a county
21 has the same powers as the prosecuting attorney of the county.
22 However, the appointing judge shall limit the scope of the special
23 prosecutor's duties to include only the investigation or prosecution of
24 a particular case or particular grand jury investigation.
25 (e) Upon making an appointment under this section, the court shall
26 establish the length of the special prosecutor's term. At least one (1)
27 time every six (6) months throughout the appointed term, a special
28 prosecutor shall file a progress report with the appointing court. A
29 progress report:
30 (1) must inform the court of the:
31 (A) status of the investigation; and
32 (B) estimated time for completion of the special prosecutor's
33 duties; and
34 (2) may not:
35 (A) include substantive facts or legal issues; or
36 (B) offer preliminary conclusions.
37 The court may extend the term of appointment upon the request of the
38 special prosecutor or terminate any appointment if the special
39 prosecutor has failed to file reports or a request for an extended term
40 under this subsection.
41 (f) If the target of an investigation by the special prosecutor is a
42 public servant (as defined in IC 35-31.5-2-261), the court shall order
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1 the special prosecutor to file a report of the investigation with the court
2 at the conclusion of the investigation. A report filed under this
3 subsection is a public record under IC 5-14-3.
4 (g) If a special prosecutor is not regularly employed as a full-time
5 prosecuting attorney or full-time deputy prosecuting attorney, the
6 compensation for the special prosecutor's services:
7 (1) shall be paid, as incurred:
8 (A) to the special prosecutor; or
9 (B) for a special prosecutor employed by the special
10 prosecuting attorney unit (IC 33-39-8-8), to the special
11 prosecuting attorney unit;
12 following an application to the county auditor, from the
13 unappropriated funds of the appointing county; and
14 (2) may not exceed:
15 (A) an hourly rate based upon the regular salary of a full-time
16 prosecuting attorney of the appointing circuit;
17 (B) travel expenses and reasonable accommodation expenses
18 actually incurred; and
19 (C) other reasonable expenses actually incurred, including the
20 costs of investigation, trial and discovery preparation, and
21 other trial expenses.
22 The amount of compensation a special prosecutor receives for services
23 performed during a calendar day under subdivision (2)(A) may not
24 exceed the amount of compensation a full-time prosecuting attorney
25 would receive in salary for the calendar day.
26 (h) If the special prosecutor is regularly employed as a full-time
27 prosecuting attorney or deputy prosecuting attorney, the compensation
28 for the special prosecutor's services:
29 (1) shall be paid out of the appointing county's unappropriated
30 funds to the treasurer of the county in which the special
31 prosecutor regularly serves; and
32 (2) must include a per diem equal to the regular salary of a
33 full-time prosecuting attorney of the appointing circuit, travel
34 expenses, and reasonable accommodation expenses actually
35 incurred.
36 SECTION 7. IC 33-39-11 IS ADDED TO THE INDIANA CODE
37 AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
38 JULY 1, 2023]:
39 Chapter 11. Indiana Prosecuting Attorney Commission
40 Sec. 1. As used in this chapter, "commission" means the Indiana
41 prosecuting attorney commission established by section 2 of this
42 chapter.
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1 Sec. 2. (a) The Indiana prosecuting attorney commission is
2 established as a division of the prosecuting attorneys council of
3 Indiana.
4 (b) The commission is composed of the following nine (9)
5 members, none of whom may be a public defender or a court
6 employee:
7 (1) One (1) member appointed by the governor.
8 (2) One (1) supreme court justice, appointed by the chief
9 justice.
10 (3) One (1) member of the ways and means committee of the
11 house of representatives, to be appointed by the speaker of the
12 house of representatives.
13 (4) One (1) member of the senate appropriations committee,
14 to be appointed by the president pro tempore of the senate.
15 (5) Four (4) members appointed by the prosecuting attorneys
16 council of Indiana.
17 (6) The executive director of the prosecuting attorneys council
18 of Indiana, who serves ex officio.
19 Not more than three (3) of the members appointed under
20 subdivisions (3), (4), and (5) may be members of the same political
21 party.
22 Sec. 3. (a) The executive director of the prosecuting attorneys
23 council of Indiana shall serve as chairperson of the commission.
24 (b) The executive director of the prosecuting attorneys council
25 of Indiana shall appoint an employee of the prosecuting attorneys
26 council of Indiana to manage the day to day operations of the
27 commission.
28 (c) The term of office of each member of the commission other
29 than the executive director of the prosecuting attorneys council of
30 Indiana is four (4) years. A vacancy occurring among the members
31 of the commission before the expiration of a term shall be filled in
32 the same manner as the original appointment. An appointment to
33 fill a vacancy occurring before the expiration of a term is for the
34 remainder of the unexpired term.
35 (d) Each member of the commission who is a state employee is
36 entitled to reimbursement for traveling expenses and other
37 expenses actually incurred in connection with the member's duties,
38 as provided in the state travel policies and procedures established
39 by the Indiana department of administration and approved by the
40 budget agency.
41 (e) A member of the commission who is not a state employee is
42 entitled to:
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1 (1) the minimum salary per diem provided by
2 IC 4-10-11-2.1(b); and
3 (2) reimbursement for traveling expenses and other expenses
4 actually incurred in connection with the member's duties, as
5 provided in the state travel policies and procedures
6 established by the Indiana department of administration and
7 approved by the budget agency.
8 (f) The commission shall meet at least quarterly and at times
9 called by the chairperson or at the request of three (3) commission
10 members.
11 Sec. 4. The commission shall do the following:
12 (1) Make recommendations to the general assembly
13 concerning personnel and staffing for prosecution services.
14 (2) Adopt guidelines and standards for prosecution services
15 under which counties will be eligible for reimbursement under
16 IC 33-39-12, including the following:
17 (A) Compensation rates for employees appointed by the
18 prosecuting attorney under IC 33-39-6.
19 (B) Minimum and maximum caseloads for staff.
20 (C) Victim services.
21 (3) Make an annual report to the governor, the general
22 assembly, the supreme court, and the prosecuting attorneys
23 council of Indiana on the operation of the prosecuting
24 attorney services fund under IC 33-39-12. The report to the
25 general assembly must be in an electronic format under
26 IC 5-14-6.
27 Sec. 5. The executive director of the prosecuting attorneys
28 council of Indiana shall hire staff to support the commission.
29 However, the executive director may delegate this authority to the
30 employee appointed under section 3(b) of this chapter to manage
31 the day to day operations of the commission. The commission, with
32 the assistance of the executive director of the prosecuting attorneys
33 council of Indiana, may enter into contracts for any additional staff
34 support that the commission determines is necessary to implement
35 this chapter.
36 SECTION 8. IC 33-39-12 IS ADDED TO THE INDIANA CODE
37 AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
38 JULY 1, 2023]:
39 Chapter 12. Prosecuting Attorney Services Fund
40 Sec. 1. As used in this chapter, "county auditor" includes a
41 person who is:
42 (1) the auditor of a county; and
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1 (2) responsible for the receipt, disbursement, and accounting
2 of all funds distributed to a prosecuting attorney's office in
3 the county.
4 Sec. 2. As used in this chapter, "fund" means the prosecuting
5 attorney services fund established by section 3 of this chapter.
6 Sec. 3. The prosecuting attorney services fund is established to
7 receive court costs or other revenues for county reimbursement
8 and administrative expenses. The fund shall be administered by the
9 Indiana prosecuting attorney commission established by
10 IC 33-39-11-2.
11 Sec. 4. The treasurer of state shall invest the money in the fund
12 not currently needed to meet the obligations of the fund in the same
13 manner as other public funds may be invested.
14 Sec. 5. Money in the fund at the end of the state fiscal year does
15 not revert to the state general fund.
16 Sec. 6. A county auditor may submit on a quarterly basis a
17 certified request to the Indiana prosecuting attorney commission
18 for reimbursement from the fund for an amount equal to seventy
19 percent (70%) of the county's expenditures for prosecuting
20 attorney services provided to the public.
21 Sec. 7. (a) Upon certification by a county auditor and a
22 determination by the Indiana prosecuting attorney commission
23 that the request is in compliance with the guidelines and standards
24 set by the commission, the commission shall quarterly authorize an
25 amount of reimbursement due the county that is equal to seventy
26 percent (70%) of the county's certified expenditures for
27 prosecuting attorney services. The Indiana prosecuting attorney
28 commission shall then certify to the auditor of state the amount of
29 reimbursement owed to a county under this chapter.
30 (b) Upon receiving certification from the Indiana prosecuting
31 attorney commission, the auditor of state shall issue a warrant to
32 the treasurer of state for disbursement to the county of the amount
33 certified.
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COMMITTEE REPORT
Madam President: The Senate Committee on Corrections and
Criminal Law, to which was referred Senate Bill No. 280, has had the
same under consideration and begs leave to report the same back to the
Senate with the recommendation that said bill DO PASS and be
reassigned to the Senate Committee on Appropriations.
(Reference is to SB 280 as introduced.)
FREEMAN, Chairperson
Committee Vote: Yeas 7, Nays 0
SB 280—LS 7225/DI 106