68th Legislature SB 12.1
1 SENATE BILL NO. 12
2 INTRODUCED BY R. LYNCH
3 BY REQUEST OF THE LAW AND JUSTICE INTERIM COMMITTEE
4
5 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS ON PUBLIC DEFENDER
6 REPRESENTATION RELATED TO LOCAL GOVERNMENT ORDINANCES; REQUIRING A LOCAL
7 GOVERNMENT TO REIMBURSE THE OFFICE OF STATE PUBLIC DEFENDER FOR PROVIDING
8 REPRESENTATION TO CERTAIN DEFENDANTS CHARGED WITH AN ALLEGED VIOLATION OF A LOCAL
9 GOVERNMENT ORDINANCE; REQUIRING A LOCAL GOVERNMENT TO PROVIDE ASSISTA NCE OF
10 COUNSEL TO CERTAIN DEFENDANTS CHARGED WITH AN ALLEGED VIOLATION OF A LOCAL
11 GOVERNMENT ORDINANCE; REVISING THE PAYMENT OF CERTAIN INVESTIGATION AND TRIAL-
12 RELATED COSTS AND FEES; SUPERSEDING THE UNFUNDED MANDATE LAWS; AND AMENDING
13 SECTIONS 26-2-506, 26-2-508, 26-2-510, 46-1-507, 46-4-304, 46-8-101, 46-8-113, 46-8-114, 46-12-210, 46-
14 14-202, 46-15-115, 47-1-104, AND 47-1-119, MCA.”
15
16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
17
18 NEW SECTION. Section 1. Public defender reimbursement. (1) Except as provided in subsection
19 (2), if an individual is charged solely with an alleged violation of an ordinance adopted by a local government,
20 the text of the ordinance specifies that the penalty for a violation includes the possibility of incarceration, and
21 the of fice of state public defender is appointed to represent the individual pursuant to 47-1-104, then the local
22 government that adopted the ordinance shall reimburse the office of state public defender for the following
23 costs associated with providing representation:
24 (a) hourly costs of appointed counsel as set by the office of state public defender in administrative
25 rule f or the actual number of hours spent providing public defense services;
26 (b) the actual client costs paid by the office of state public defender, including costs related to case
27 investigation, client evaluations, expert witnesses, discovery, exhibits, and other costs directly related to the
28 def ense of the individual; and
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1 (c) other costs paid by the office of state public defender as provided in 47-1-119(4).
2 (2) If an individual is charged solely with an alleged violation of an ordinance adopted by a local
3 government and the text of that ordinance does not specify a penalty, but another local ordinance that sets the
4 penalty for a violation includes the possibility of incarceration, the local government shall immediately provide
5 counsel to the defendant.
6
7 NEW SECTION. Section 2. Exceptions to assignment of counsel at public expense. (1) A court
8 may not order the assignment of counsel of a public defender from the office of state public defender under this
9 chapter f or a person charged solely with an alleged violation of an ordinance adopted by a local government
10 when the text of that ordinance does not specify a penalty, but another local ordinance that sets the penalty for
11 a violation includes the possibility of incarceration. If the defendant is not charged with any violation of state law
12 f or which incarceration is a sentencing option, it is the responsibility of the local government to provide counsel
13 as required in [section 1(2)].
14 (2) (a) Except as provided in subsection (2)(b), a public defender may not be assigned to act as a
15 court-appointed special advocate or guardian ad litem in a proceeding under the Montana Youth Court Act as
16 provided in Title 41, chapter 5, or in an abuse and neglect proceeding under Title 41, chapter 3.
17 (b) A private attorney who is contracted with under the provisions of 47-1-121 to provide public
18 def ender services under this chapter may be appointed as a court-appointed special advocate or guardian ad
19 litem in a proceeding described in subsection (2)(a) if the appointment is separate from the attorney's service
20 f or the statewide public defender system and does not result in a conflict of interest .
21
22 Section 3. Section 26-2-506, MCA, is amended to read:
23 "26-2-506. Fees paid by party subpoenaing -- exceptions. (1) Except as provided in subsection
24 (2), f ees and compensation of a witness in all criminal and civil actions must be paid by the party who caused
25 the witness to be subpoenaed.
26 (2) (a) When a witness is subpoenaed by a public defender, as defined in 47-1-103, the fees and
27 expenses must be paid by the office of state public defender as provided in 47-1-119.
28 (b) In a criminal proceeding, when a witness is subpoenaed on behalf of the attorney general or a
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1 county attorney, the witness fees and expenses must be paid by the county except as provided in subsection
2 (2)(c).
3 (c) The attorney general may reimburse a county for fees and compensation of a witness up to the
4 amount appropriated for witness expenses. If money appropriated for the expenses listed in subsection (2)(b) is
5 insuf ficient to fully fund those expenses, the county is responsible for payment of the balance.
6 (d) In any proceeding in which a defendant or respondent is entitled to a public defender, as
7 def ined in 47-1-103, but is acting pro se, the witness fees and expenses must be paid by the office of court
8 administrator, as provided in 3-5-901.
9 (e) In any proceeding in which a local government is required by [section 1(2)] to provide
10 assistance of counsel, the witness fees and expenses must be paid b y the local government required to provide
11 counsel."
12
13 Section 4. Section 26-2-508, MCA, is amended to read:
14 "26-2-508. Witnesses for state, county, local government, or public defender -- advance
15 payment not required. The attorney general, any county attorney, an attorney assigned pursuant to [section
16 1(2)], or any public defender, as defined in 47-1-103, is authorized to cause subpoenas to be issued and
17 compel the attendance of witnesses without paying or tendering fees in advance to either officers or witnesses.
18 A witness ref using to or failing to attend, after being served with a subpoena, may be proceeded against and is
19 liable in the same manner as is provided by law in other cases where fees have been tendered or paid."
20
21 Section 5. Section 26-2-510, MCA, is amended to read:
22 "26-2-510. Application of sections exempting from advance payment. The provisions of 26-2-508
23 and 26-2-509 extend to all actions and proceedings brought in the name of the attorney general, any other
24 person or persons for the benefit of the state, or county, or local government, or any other person or persons for
25 the benef it of a public defender, as defined in 47-1-103."
26
27 Section 6. Section 46-1-507, MCA, is amended to read:
28 "46-1-507. Costs. The mediation costs must be paid equally by the defendant and the prosecution,
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1 except that if a defendant is eligible for a public defender or an attorney assigned pursuant to [section 1(2)], the
2 public defender or local government shall pay the mediation costs."
3
4 Section 7. Section 46-4-304, MCA, is amended to read:
5 "46-4-304. Conduct of investigative inquiry. (1) (a) The prosecutor may examine under oath all
6 witnesses subpoenaed pursuant to this part. Testimony must be recorded. The witness has the right to have
7 counsel present at all times. If Except as provided in subsection (1)(b), if the witness does not have funds to
8 obtain counsel, the judge or justice shall order the office of state public defender, provided for in 2-15-1029, to
9 assign counsel.
10 (b) If the witness is subpoenaed in a proceeding in which the offense charged is an alleged
11 violation of an ordinance adopted by a local government and the text of that ordinance does not specify a
12 penalty, but another local ordinance that sets the penalty for a violation includes the possibility of incarceration,
13 the def endant is not charged with any violation of state law for which incarceration is a sentencing option, and
14 the witness does not have the funds to obtain counsel, the judge or justice shall order the local government that
15 adopted the ordinance to provide assistance of counsel for the witness.
16 (2) The secrecy and disclosure provisions relating to grand jury proceedings apply to proceedings
17 conducted under subsection (1). A person who divulges the contents of the application or the proceedings
18 without legal privilege to do so is punishable for contempt of court.
19 (3) All penalties for perjury or preparing, submitting, or offering false evidence apply to proceedings
20 conducted under this part."
21
22 Section 8. Section 46-8-101, MCA, is amended to read:
23 "46-8-101. Right to counsel. (1) During the initial appearance before the court, every defendant must
24 be inf ormed of the right to have counsel and must be asked if the aid of counsel is desired.
25 (2) Except as provided in subsection (3), if the defendant desires assigned counsel because of
26 f inancial inability to retain private counsel and the offense charged is a felony or the offense is a misdemeanor
27 and incarceration is a sentencing option if the defendant is convicted, the court shall order the office of state
28 public defender, provided for in 2-15-1029, to assign counsel to represent the defendant without unnecessary
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1 delay pending a determination of eligibility under the provisions of 47-1-111.
2 (3) (a) If the defendant desires assigned counsel because of financial inability to retain private
3 counsel and the offense charged is a misdemeanor and incarceration is a sentencing option if the defendant is
4 convicted, during the initial appearance the court may order that incarceration not be exercised as a sentencing
5 option if the defendant is convicted. If the court so orders, the court shall inform the defendant that the
6 assistance of counsel at public expense through the office of state public defender is not available and that time
7 will be given to consult with an attorney before a plea is entered. If incarceration is waived as a sentencing
8 option, a public defender may not be assigned.
9 (b) If the def endant desires assigned counsel because of the defendant's financial inability to retain
10 private counsel and the offense charged is an alleged violation of an ordinance adopted by a local government
11 when the text of the ordinance does not specify a penalty, but another local ordinance that sets the penalty for a
12 violation includes the possibility of incarceration, the court shall order the local government that adopted the
13 ordinance to provide assistance of counsel to the defendant without unnecessary delay pending a
14 determination of eligibility under [section 1(2)]. If the defendant is also charged with an offense that is an
15 alleged violation of state law for which incarceration is a sentencing option, the obligation of the local
16 government to provide assistance of counsel pursuant to this subsection (3)(b) does not apply."
17
18 Section 9. Section 46-8-113, MCA, is amended to read:
19 "46-8-113. Payment by defendant for assigned counsel -- costs to be filed with court --
20 collection of unpaid costs. (1) Subject to the provisions of subsections (2) and (3), as part of or as a condition
21 of a sentence that is imposed under the provisions of this title, the court shall determine whether a convicted
22 def endant should pay the costs of counsel assigned to represent the defendant as follows:
23 (a) If the def endant pleads guilty prior to trial:
24 (i) to one or more misdemeanor charges and no felony charges, the cost of counsel is $250; or
25 (ii) to one or more felony charges, the cost of counsel is $800.
26 (b) If the case goes to trial, the defendant shall pay the costs incurred by the office of state public
27 def ender or by the counsel assigned pursuant to [section 1(2)] for providing the defendant with counsel in the
28 criminal trial. Upon request, the office of state public defender or the assigned counsel shall file with the court a
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1 statement of the hours spent on the case and the costs and expenses incurred for the trial.
2 (2) (a) The of fice of the court administrator shall prepare a single combined report for each court
3 assessing costs under this section by individual defendant and provide a copy of the report to the office of state
4 public defender on a monthly basis. The report must include available information to personally identify the
5 def endant.
6 (b) The of fice of state public defender shall:
7 (i) notif y the department of revenue of the defendant's unpaid costs and provide the department of
8 revenue with the def endant's full name, social security number, and address and the amount of the defendant's
9 unpaid costs; and
10 (ii) work cooperatively with the department of revenue to collect the defendant's unpaid costs.
11 (c) The department of revenue shall collect the defendant's unpaid costs assessed under this
12 section. All costs collected by the department of revenue or the office of state public defender if the office
13 receives or collects any costs owed under this section must be deposited in the state general fund and clearly
14 credited against any balance owed by a defendant.
15 (d) The of fice of the court administrator, office of state public defender, and department of revenue
16 shall develop a mutually agreed-upon report format and procedures for ensuring the timely and accurate
17 transf er of information to collect unpaid costs assessed under this section.
18 (3) In any proceeding for the determination of whether a defendant is or will be able to pay the
19 costs of counsel, the court shall question the defendant as to the defendant's ability to pay those costs and shall
20 inf orm the defendant that purposely false or misleading statements by the defendant may result in criminal
21 charges against the defendant.
22 (4) The court may not sentence a defendant to pay the costs for assigned counsel unless the
23 def endant is or will be able to pay the costs imposed by subsection (1). The court may find that the defendant is
24 able to pay only a portion of the costs assessed. In determining the amount and method of payment of costs,
25 the court shall take into account the financial resources of the defendant and the nature of the burden that
26 payment of costs will impose.
27 (5) A def endant who has been sentenced to pay costs may at any time petition the court that
28 sentenced the defendant for remission of the payment of costs or of any unpaid portion of the costs. If it
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1 appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the
2 def endant or the defendant's immediate family, the court may reduce all or part of the amount due in costs or
3 modify the method of payment. The court shall notify the office of state public d efender or the local government
4 responsible for providing assistance of counsel of any reduction to the amount due.
5 (6) A def endant's obligation to make payments for the cost of counsel is suspended during periods
6 of incarceration.
7 (7) Any costs imposed under this section must be included in the court's judgment."
8
9 Section 10. Section 46-8-114, MCA, is amended to read:
10 "46-8-114. Time and method of payment. (1) Except as provided in subsection (2), when a
11 def endant is sentenced to pay the costs of assigned counsel pursuant to 46-8-113, the court may order
12 payment to be made within a specified period of time or in specified installments.
13 (2) A def endant's obligation to make payments for the cost of counsel is suspended during periods
14 of incarceration.
15 (3) For public defender fees assessed prior to July 1, 2017, payments must be made to the clerk of
16 the sentencing court for allocation as provided in 46-18-201, 46-18-232, and 46-18-251 and deposited in the
17