Bill Summary – FastDemocracy

67th Legislature                                                                                                   HB 659.1
                                                   HOUSE BILL NO. 659
                                               INTRODUCED BY A. OLSEN
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   A BILL FOR AN ACT ENTITLED: “AN ACT CREATING A SPECIALIZED COURT TO DETERMINE THE
   EXPUNGEMENT OR RESENTENCING OF MARIJUANA CONVICTIONS; PROVIDING FOR THE
   APPOINTMENT OF A JUDGE; PROVIDING FOR VENUE AND SCOPE OF AUTHORITY; PROVIDING
   DEFINITIONS; PROVIDING AN APPROPRIATION; AND AMENDING SECTIONS 3-5-113, 3-5-115, AND 16-
   12-113, MCA.”
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              WHEREAS, Initiative 190 passed legalizing recreational marijuana and providing that certain prior
   marijuana convictions may be expunged; and
              WHEREAS, it is in the interests of justice and judicial economy that the restoration of rights claims be
   adjudicated as quickly as possible without disruption of Montana district courts which are already very busy;
   and
              WHEREAS, the large number of marijuana restoration of rights related claims will impede the ability of
   each district court judge in the Montana judicial districts to handle the normal case load of each court and may
   raise several potential conflicts of interest; and
              WHEREAS, it is imperative that marijuana restoration of rights related claims be dealt with
   expeditiously in order to allow Montana citizens to receive a speedy resolution of their claims and be on their
   way to economic and civic productivity; and
              WHEREAS, Article VII, section 1, of the Montana Constitution allows additional courts to be provided
   by law.
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.        Definitions. As used in [sections 1 through 6], unless the context clearly
   indicates otherwise, the following definitions apply:
              (1)   "Decriminalized or resentenced marijuana conviction" means a marijuana conviction described in
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   16-12-113 that no longer constitutes a criminal act, or a marijuana conviction that must be resentenced.
              (2)   "Expungement or resentencing of marijuana conviction court" means the court, as provided in
   [sections 1 through 6], that is responsible for determining petitions for expungement and resentencing as
   provided in 16-12-113.
              (3)   "Petition for expungement or resentencing" means a petition filed pursuant to 16-12-113 seeking
   expungement or resentencing of a marijuana conviction.
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              NEW SECTION. Section 2.          Appointment of judge. (1) A petition for expungement or resentencing
   of a marijuana conviction filed as provided in 16-12-113 may be determined by a judge pro tempore or special
   master, who must be a member of the bar of the state, agreed on in writing by the petitioner and the county
   attorney, appointed by the supreme court as provided in 3-5-115, and sworn to determine whether the petitioner
   meets the criteria for expungement or resentencing as provided in 16-12-113. On appointment, the individual
   must be designated as the decriminalized marijuana conviction expungement judge.
              (2)   A judge appointed under subsection (1) has the authority and power of an elected district court
   judge in the civil action involving petitions filed as provided in 16-12-113. All proceedings must be conducted in
   accordance with the rules of evidence and procedure governing district courts.
              (3)   Any determination rendered in a petition by the judge has the same force and effect as if
   determined by the district court with the regular judge presiding.
              (4)   A party stipulating to have a petition determined by the judge appointed under subsection (1) may
   not file a motion for substitution of the judge pursuant to 3-1-804.
              (5)   All filings relating to a petition filed as provided in 16-12-113 must be filed with the clerk of court in
   the judicial district in which the marijuana conviction took place. The applicant and the county attorney shall
   provide a copy of each filing to the judge appointed as provided in subsection (1).
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              NEW SECTION. Section 3.          Petition for expungement -- venue. When the applicant requests a
   hearing, as provided in 16-12-113, the judge appointed as provided in [section 2] may hear the petition in any
   venue stipulated by the petitioner and the county attorney, as provided in 25-2-202, or in any venue otherwise
   determined by the judge in accordance with a stipulation of the petitioner and the county attorney. In stipulating
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   venue, the petitioner and the county attorney shall take into consideration the availability of courtroom facilities.
   The judge may prepare a list of available courtroom facilities for consideration.
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              Section 4. Section 3-5-113, MCA, is amended to read:
              "3-5-113.   Judges pro tempore -- special masters -- scope of authority in criminal and civil
   cases. (1) (a) A civil action in the district court may be tried by a judge pro tempore or special master, who
   must be a member of the bar of the state, agreed upon in writing by the parties litigant or their attorneys of
   record, appointed by the court as provided in 3-5-115, or 3-20-102, or [section 2], and sworn to try the cause
   before entering upon the duties in trying the cause.
              (b)   The judge pro tempore or special master has the authority and power of an elected district court
   judge in the particular civil action tried in the manner provided for in this subsection (1). All proceedings before
   a judge pro tempore or special master must be conducted in accordance with the rules of evidence and
   procedure governing district courts.
              (c)   Any order, judgment, or decree made or rendered in a civil case by the judge pro tempore or
   special master has the same force and effect as if made or rendered by the district court with the regular judge
   presiding.
              (2)   (a) Preliminary, nondispositive proceedings in criminal actions in a district court may be
   conducted by a judge pro tempore or special master. The judge pro tempore or special master in a criminal
   case must be appointed by a district court judge or judges as provided in 3-5-122.
              (b)   All proceedings before a judge pro tempore or special master in a criminal case must be
   conducted in accordance with the rules of evidence and procedure governing district courts.
              (c)   The judge pro tempore or special master in a criminal case has the authority and power of a
   district court judge to issue orders pursuant to Title 46, chapter 9, concerning bail and conditions of release or
   detention of persons pending trial, and to conduct arraignments, initial appearances on warrants, and initial
   appearances on probation revocations. An order made by the judge pro tempore or special master in a criminal
   case has the same force and effect as if made by a district court judge.
              (d)   Within 10 days after issuance of an order by a judge pro tempore or special master in a criminal
   case, a party may object to the order as provided by rules of court and a district court judge shall make a de
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   novo determination of that portion of the order to which objection is made. The district court judge may accept,
   reject, or modify the order in whole or in part. The district court judge may also receive further evidence or
   recommit the matter to the judge pro tempore or special master with instructions.
              (e)   All proceedings before a judge pro tempore or special master in a criminal case must be
   conducted in a suitable room in the courthouse, subject to the provisions of Title 46 relating to the use of two-
   way electronic audio-video communication. All records must be filed and kept in accordance with the rules
   governing the district court."
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              Section 5. Section 3-5-115, MCA, is amended to read:
              "3-5-115.   Agreement, petition, and appointment of judge pro tempore -- waiver of jury trial. (1)
   Prior to trial and upon written agreement of all the parties to a civil action, the parties may petition for the
   appointment of a judge pro tempore. Except as provided in 3-20-102, if the district court judge having
   jurisdiction over the case where the action was filed finds that the appointment is in the best interest of the
   parties and serves justice, the district court judge may appoint the judge pro tempore nominated by the parties
   to preside over the whole action or any aspect of the action as if the regular district court judge were presiding.
              (2)   Except as provided in 3-20-102, an appointment of a judge pro tempore constitutes a waiver of the
   right to trial by jury by any party having the right.
              (3)   The supreme court shall appoint the asbestos claims judge as provided in 3-20-102.
              (4)   The supreme court shall appoint a judge to determine the expungement or resentencing of
   marijuana convictions as provided in [section 2]."
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              Section 6. Section 16-12-113, MCA, is amended to read:
              "16-12-113. Decriminalized acts -- petition for expungement or resentencing -- retroactive
   application. (1) A person currently serving a sentence for an act that is permitted under this chapter or is
   punishable by a lesser sentence under this chapter than the person was awarded may petition for an
   expungement of the conviction or resentencing.
              (2)   Upon receiving a petition under subsection (1), the expungement or resentencing of marijuana
   conviction court, as provided in [sections 1 through 3], shall presume the petitioner satisfies the criteria in
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   subsection (1) unless the county attorney proves by clear and convincing evidence that the petitioner does not
   satisfy the criteria. If the petitioner satisfies the criteria in subsection (1), the court shall grant the petition unless
   the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
               (3)   A person who is serving a sentence and is resentenced pursuant to subsection (1) must be given
   credit for any time already served and may not be subject to supervision.
               (4)   Resentencing under this section may not result in the imposition of a term longer than the original
   sentence or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
               (5)   (a) A person who has completed a sentence for an act that is permitted under this chapter or is
   punishable by a lesser sentence under this chapter than the person was awarded may petition the sentencing
   court to:
               (i)   expunge the conviction; or
               (ii) redesignate the conviction as a misdemeanor or civil infraction in accordance with this chapter.
               (b)   The petition must be served on the county attorney for the county where the petition is filed.
               (6)   Upon receiving a petition under subsection (5), the court shall presume the petitioner satisfies the
   criteria in subsection (5) unless the county attorney proves by clear and convincing evidence that the petitioner
   does not satisfy the criteria. Once the applicant satisfies the criteria in subsection (5), the court shall
   redesignate the conviction as a misdemeanor or civil infraction or expunge the conviction as legally invalid
   pursuant to this chapter.
               (7)   Unless requested by the applicant, no hearing is necessary to grant or deny an application filed
   under subsection (5).
               (8)   Any felony conviction that is recalled under subsection (1) or designated as a misdemeanor or civil
   infraction under subsection (5) must be considered a misdemeanor or civil infraction for all purposes. Any
   misdemeanor conviction that is recalled and resentenced under subsection (1) or designated as a civil
   infraction under subsection (5) must be considered a civil infraction for all purposes.
               (9)   Nothing in this section constitutes a waiver of any right or remedy otherwise available to the
   petitioner or applicant.
               (10) Nothing in this chapter is intended to impact the finality of judgment in any case not falling within
   the purview of this chapter.
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              (11) The provisions of this section apply equally to juvenile cases if the juvenile would not have been
   guilty of an offense or would have been guilty of a lesser offense under this chapter."
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              NEW SECTION. Section 7.       Appropriation. There is appropriated $1 million from the general fund to
   the judicial branch for the purpose of funding the expungement or resentencing of marijuana conviction court,
   including a judge appointed as provided in [section 2], one full-time employee, and office rental and equipment
   purchase. Any unexpended portion of this appropriation reverts to the general fund.
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              NEW SECTION. Section 8.       Codification instruction. [Sections 1 through 3] are intended to be
   codified as an integral part of Title 16, chapter 12, part 1, and the provisions of Title 16, chapter 12, part 1,
   apply to [sections 1 through 3].
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Statutes affected: 
Introduced: 3-5-113, 3-5-115, 16-12-113