§ 23-19-6-2 — Investigations; subpoenas; depositions; relief; hearings; use immunity; certificate of compliance or noncompliance; witness fees

Indiana § 23-19-6-2

• Jurisdiction: Indiana
• Title 23: BUSINESS AND OTHER ASSOCIATIONS
• Art. 19: INDIANA UNIFORM SECURITIES ACT
• Ch. 6: Administration and Judicial Review

Text

(a) The commissioner may:
(1) conduct public or private investigations within or outside this
state which the commissioner considers necessary or appropriate
to determine whether a person has violated, is violating, or is
about to violate this article or a rule adopted or order issued under
this article, or to aid in the enforcement of this article or in the
adoption of rules and forms under this article;
(2) require or permit a person to testify, file a statement, or
produce a record, under oath or otherwise as the commissioner
determines, as to all the facts and circumstances concerning a
matter to be investigated or about which an action or proceeding
is to be instituted; and
(3) publish a record concerning an action, proceeding, or an
investigation under, or a violation of, this article or a rule adopted
or order issued under this article if the commissioner determines
it is necessary or appropriate in the public interest and for the
protection of investors.
(b) For the purpose of an investigation under this article, the
commissioner or the commissioner's designated officer may administer
oaths and affirmations, subpoena witnesses, seek compulsion of
attendance, take evidence, require the filing of statements, and require
the production of any records that the commissioner considers relevant
or material to the investigation. Upon order of the commissioner,
before July 1, 2020, a hearing officer appointed by the commissioner,
or, after June 30, 2020, an administrative law judge assigned, after
request by the commissioner, by the office of administrative law
proceedings established by IC 4-15-10.5-7, in any hearing, depositions
may be taken in the manner prescribed by law for depositions in civil
actions and made returnable to the commissioner, a hearing officer
appointed by the commissioner, or administrative law judge.
(c) If a person does not appear or refuses to testify, file a statement,
or produce records, or otherwise does not obey a subpoena as required
by this article, the commissioner, before July 1, 2020, a hearing officer
appointed by the commissioner, or, after June 30, 2020, an
administrative law judge assigned, after request by the commissioner,
by the office of administrative law proceedings established by IC 4-15-10.5-7, may apply to the circuit or superior court in the county
where the hearing, investigation, or inquiry in question is being
conducted to enforce compliance. The court may:
(1) hold the person in contempt;
(2) order the person to appear before the commissioner, hearing
officer appointed by the commissioner, or administrative law
judge;
(3) order the person to testify about the matter under investigation
or in question;
(4) order the production of records;
(5) grant injunctive relief, including restricting or prohibiting the
offer or sale of securities or the providing of investment advice;
(6) impose a civil penalty of not more than twenty thousand
dollars ($20,000) for each violation; and
(7) grant any other necessary or appropriate relief.
(d) This section does not preclude a person from applying to the
circuit or superior court in the county where the hearing, investigation,
or inquiry in question is being conducted for relief from a request to
appear, testify, file a statement, produce records, or obey a subpoena.
(e) If a witness, in any hearing, inquiry, or investigation conducted
under this article, refuses to answer any question or produce any item,
the commissioner may file a written petition with the circuit or superior
court in the county where the hearing, investigation, or inquiry in
question is being conducted requesting a hearing on the refusal. The
court shall hold a hearing to determine if the witness may refuse to
answer the question or produce the item. If the court determines that
the witness, based upon the witness's privilege against
self-incrimination, may properly refuse to answer or produce an item,
the commissioner may make a written request that the court grant use
immunity to the witness. Upon written request of the commissioner, the
court shall grant use immunity to a witness. The court shall instruct the
witness, by written order or in open court, that:
(1) any evidence the witness gives, or evidence derived from that
evidence, may not be used in any criminal proceedings against
that witness, unless the evidence is volunteered by the witness or
is not responsive to a question; and
(2) the witness must answer the questions asked and produce the
items requested. A grant of use immunity does not prohibit the
use of evidence that the witness gives in a hearing, investigation,
or inquiry from being used in a prosecution for perjury under IC 35-44.1-2-1. If a witness refuses to give the evidence after the
witness has been granted use immunity, the court may find the
witness in contempt.
(f) At the request of the securities regulator of another state or a
foreign jurisdiction, the commissioner may provide assistance if the
requesting regulator states that it is conducting an investigation to
determine whether a person has violated, is violating, or is about to
violate a law or rule of the other state or foreign jurisdiction relating to
securities matters that the requesting regulator administers or enforces.
The commissioner may provide the assistance by using the authority to
investigate and the powers conferred by this section as the
commissioner determines is necessary or appropriate. The assistance
may be provided without regard to whether the conduct described in
the request would also constitute a violation of this article or other law
of this state if occurring in this state. In deciding whether to provide the
assistance, the commissioner may consider whether the requesting
regulator is permitted and has agreed to provide assistance reciprocally
within its state or foreign jurisdiction to the commissioner on securities
matters when requested; whether compliance with the request would
violate or prejudice the public policy of this state; and the availability
of resources and employees of the commissioner to carry out the
request for assistance.
(g) In any prosecution, action, suit, or proceeding based upon or
arising out of or under the provisions of this article, a certificate duly
signed by the commissioner showing compliance or noncompliance
with the provisions of this article, respecting the security in question or
respecting compliance or noncompliance of this article, by any issuer,
broker-dealer, investment advisor, or agent, shall constitute prima facie
evidence of compliance or noncompliance with the provisions of this
article, as the case may be, and shall be admissible in evidence in any
action at law or in equity to enforce this article.
(h) Each witness who shall appear before the commissioner or a
hearing officer appointed by the commissioner by order shall receive
for the witness's attendance the fees and mileage provided for witnesses
in civil cases, which shall be audited and paid by the state in the same
manner as other expenses of the securities division are audited and paid
upon the presentation of proper vouchers sworn to by the witnesses and
approved by the commissioner. However, no witnesses subpoenaed at
the instance of parties other than the commissioner, or a hearing officer
appointed by the commissioner shall be entitled to any fee or
compensation from the state.

Legislative History

As added by P.L.27-2007, SEC.23. Amended by P.L.126-2012, SEC.40; P.L.205-2019, SEC.27.