Citations Affected: IC 33-2.1; IC 33-14.
Synopsis: Senior prosecuting attorneys. Provides that: (1) a senior
prosecuting attorney may be appointed to serve as a special prosecutor;
and (2) a person must have at least eight years of experience as a
prosecuting attorney or chief deputy prosecuting attorney to be a senior
prosecuting attorney. Prohibits a person from serving as a senior
prosecuting attorney if certain disciplinary sanctions have been
imposed upon the person. Removes a requirement that a person must
wait five years before being eligible to serve as a senior prosecutor in
the county in which the person previously served as a prosecutor or
chief deputy. Provides that a senior prosecuting attorney: (1) shall be
indemnified by the state for certain costs related to civil litigation
against the senior prosecuting attorney; (2) shall be defended by the
attorney general in a civil suit for acts performed in the course of
employment; (3) is exempt from contributions to the prosecuting
attorney's retirement fund; (4) is eligible to receive pension benefits
while acting as a senior prosecuting attorney; (5) may not receive
compensation that exceeds the minimum compensation paid to a
full-time prosecuting attorney and may not receive compensation for
more than 100 days in a calendar year; and (6) may file an affidavit
requesting designation in as a senior prosecuting attorney in any county
in which the senior prosecuting attorney is willing to serve.
Effective: July 1, 2002.
January 7, 2002, read first time and referred to Committee on Judiciary.
January 31, 2002, amended, reported favorably _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning
courts and court officers.
SECTION 1. IC 33-2.1-9-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1. (a) As used in this
chapter, "judge" has the meaning set forth in IC 33-13-17-3.
(b) As used in this chapter, "prosecuting attorney" includes a senior prosecuting attorney appointed under IC 33-14-1.
(c) If a judge or prosecuting attorney is sued for civil damages or equitable relief and the suit would be construed, under notice pleading, as arising out of an act performed within the scope of the duties of the judge or prosecuting attorney, the attorney general shall:
(1) defend the judge or prosecuting attorney in the suit; or
(2) authorize the executive director of the division of state court administration to hire private counsel to provide the defense.
SECTION 2. IC 33-14-1-1.1 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 1.1. (a) As used in this chapter, "senior prosecuting attorney" means a person who:
(1) was employed for at least eight (8) years as a prosecuting
attorney or chief deputy prosecuting attorney; and
(2) files an affidavit requesting designation as a senior prosecuting attorney in the circuit court in a county in which the person is willing to serve as a senior prosecuting attorney.
(b) An affidavit filed under subsection (a) must contain the following:
(1) The name of the person filing the affidavit.
(2) The person's attorney number issued by the Indiana supreme court.
(3) The length of time the person served as a deputy prosecuting attorney or prosecuting attorney.
(4) The name of any county in which the person served as a deputy prosecuting attorney or prosecuting attorney.
(c) The circuit court shall promptly forward each affidavit received under this section to the prosecuting attorneys council of Indiana.
SECTION 3. IC 33-14-1-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 6. (a) Special prosecutors may be appointed only in accordance with this section.
(b) A circuit or superior court judge:
(1) shall appoint a special prosecutor if:
(A) any person other than the prosecuting attorney or the prosecuting attorney's deputy files a verified petition requesting the appointment of a special prosecutor; and
(B) the prosecuting attorney agrees that a special prosecutor is needed;
(2) may appoint a special prosecutor if:
(A) a person files a verified petition requesting the appointment of a special prosecutor; and
(B) the court, after:
(i) notice is given to the prosecuting attorney; and
(ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard;
finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecutor has committed a crime;
(3) may appoint a special prosecutor if:
(A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and
(B) the court finds that the appointment is necessary to avoid the appearance of impropriety; and
office, but at a later period or periods is appointed or elected and serves
in a position described in subdivisions (1) through (3), the individual
shall pay into the fund during all the periods that the individual serves
in that position, except as otherwise provided in this chapter, whether
the periods are connected or disconnected.
(b) A senior prosecuting attorney appointed under IC 33-14-1 may not be required to pay into the fund during any period of service as a senior prosecuting attorney.
SECTION 6. IC 33-14-9-13 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 13. A participant whose employment in a position described in section 7 of this chapter is terminated is entitled to a retirement benefit computed under section 14 or 16 of this chapter, beginning on the date specified by the participant in a written application, if all of the following conditions are met:
(1) The application for retirement benefits and the choice of the retirement date is filed on a form provided by the board and the retirement date is:
(A) after the cessation of the participant's service;
(B) on the first day of a month; and
(C) not more than six (6) months before the date the application is received by the board.
However, if the board determines that a participant is incompetent to file for benefits and choose a retirement date, the retirement date may be any date that is the first of the month after the time the participant became incompetent.
(2) The participant:
(A) is at least sixty-two (62) years of age and has at least ten (10) years of service credit; or
(B) meets the requirements for disability benefits under section 15 of this chapter.
(3) The participant is not receiving and is not entitled to receive any salary for services currently performed, except for services rendered as a senior prosecuting attorney under IC 33-14-1.
SECTION 7. IC 33-14-11-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 2. As used in the chapter, "prosecuting attorney" means a prosecuting attorney,
deputy prosecuting attorney, or a senior prosecuting attorney
appointed under IC 33-14-1.