House Bill No. 122
Introduced By mcgee
By Request of the Department of Corrections
A Bill for an Act entitled: An Act requiring a prisoner in the legal custody of the department of corrections to either pay a filing fee to file a complaint in a civil proceeding or submit a certified copy of the prisoner's trust fund account statement; providing that money received by a prisoner be subject to garnishment for payment of victim restitution, child support, and per diem costs of imprisonment; prohibiting prisoners from filing complaints with the department of commerce against certain professionals; clarifying the use of and providing limitations on the issuance of writs of habeas corpus for inmates to testify in civil proceedings; amending sections 25-10-404 AND 37-1-308, MCA; and providing an immediate effective date.
Be it enacted by the Legislature of the State of Montana:
Section 1. Prisoner attendance at civil proceeding prohibited -- exceptions -- costs. (1) A person incarcerated in a correctional facility of the department of corrections may not attend a civil proceeding in which the person is a party unless:
(a) the person is a respondent in a proceeding to terminate parental rights; or
(b) the court determines that a party will be substantially and irreparably prejudiced by not attending the civil proceeding.
(2) A court may not issue a writ of habeas corpus ordering a person in the legal custody of the department of corrections to attend a court proceeding without first:
(a) notifying the department and allowing the department 15 days to file a written objection; and
(b) if requested, granting the department an opportunity to appear and present evidence that the person's attendance at the proceeding represents a security risk.
(3) A person who requests that a person in the legal custody of the department of corrections attend a civil proceeding shall pay all costs associated with security.
Section 2. Garnishment -- report by supervising authority. (1) If the department of corrections becomes aware that a prisoner while incarcerated under the legal custody of the department of corrections is entitled to receive money from any source, the prisoner's supervising authority may prepare a report identifying:
(a) the total costs incurred by the state or county during the prisoner's incarceration;
(b) the criminal sentences imposed upon the prisoner, including:
(i) the amount of restitution, if any, ordered in each sentence;
(ii) the name and current address of each victim or other person to whom restitution is owed;
(iii) the amount of restitution paid by the prisoner; and
(iv) the amount of restitution currently owed by the prisoner for each sentence;
(c) the amount of any child support owed by the prisoner.
(2) The supervising authority shall provide notice and a copy of the report to the board of crime control and the county attorney for the county in which the prisoner was sentenced, either of whom may submit the report along with a petition for garnishment to the court that sentenced the prisoner. The court may order garnishment of the prisoner's money for the payment of restitution, child support, and per diem costs of incarceration owed by the prisoner. Upon receipt of the petition, the court shall provide a copy of the report to the prisoner, who has 15 days following receipt to file an objection. The court may hold a hearing to consider objections raised by the prisoner.
(3) Upon compliance with the provisions of subsections (1) and (2), the court shall determine the amount of restitution, child support, and repayment for per diem costs owed by the prisoner. The court shall order, up to the amount of money available, payment of an amount equal to the restitution owed by the prisoner to the person designated under 46-18-245 to supervise the making of restitution payments, any outstanding child support payments to the department of public health and human services for disbursement to the obligee, and per diem costs owed by the prisoner. All restitution owed by the prisoner must be paid prior to payment of any child support payments. All child support owed by the prisoner must be paid prior to the payment of any per diem costs.
Section 3. Section 25-10-404, MCA, is amended to read:
"25-10-404. Poor persons not required to prepay fees -- definition. (1) Except as provided in
(3) and (6), a person may request a waiver of fees by filing an affidavit, supported by a financial statement, stating that the
person has a good cause of action or defense and is unable to pay the costs or procure security to secure the cause of action
or defense. Except as provided in subsection subsections (2) and (6), upon issuance of an order of the court or
administrative tribunal approving a request for waiver of fees, the person may commence and prosecute or defend an action
in any of the courts and administrative tribunals of this state and the officers of the courts and administrative tribunals shall
issue and serve all writs and perform all services in the action without demanding or receiving their fees in advance.
(2) If a judge or presiding officer of an administrative tribunal is not available to approve a request for a waiver of fees prior to filing a pleading, the pleading must be filed subject to subsequent approval. If the request is subsequently denied, the fees must be paid before the case may proceed further.
(3) A person represented by an entity that provides free legal services to indigent persons is not required to file the financial statement required by subsection (1).
(4) The department of justice shall, by rule, prescribe the form of the financial statement required by subsection (1) for use in determining indigence. The form may require the disclosure of income and assets, including but not limited to the ownership of real and personal property, cash, and savings.
(5) A prisoner in the legal custody of the department of corrections who files a complaint or appeals a judgment in a civil action or proceeding without prepaying the required fees or security shall, in addition to filing the affidavit required in subsection (1), submit a certified copy of the prisoner's trust fund account statement, obtained from the facility in which the prisoner is confined, for the 6-month period immediately preceding any filing.
(6) If an indigent prisoner in the legal custody of the department of corrections files a civil complaint or an appeal from a civil judgment, the prisoner shall pay the total cost of the filing fee. If a prisoner is unable to pay the total filing fee, the court shall order the prisoner to make partial payments of any fees required by law when funds exist. The court shall consider the indigence policy of the department when determining whether funds exist.
(7) A prisoner may not be prohibited from filing a civil complaint or appealing a civil judgment or criminal conviction because of lack of assets or money to pay the initial partial filing fee. The court shall dismiss an action if the prisoner fails to pay either the partial or full amount of the filing fee as ordered by the court.
(8) As used in this section, "prisoner" means a person who is convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, or a diversionary program and who is subject to incarceration, detention, or admission to any facility."
Section 4. Section 37-1-308, MCA, is amended to read:
"37-1-308. Unprofessional conduct -- complaint -- investigation -- immunity -- exception. (1)
A Except as provided in
subsection (3), a person, government, or private entity may submit a written complaint to the department charging a
licensee or license applicant with a violation of this part and specifying the grounds for the complaint.
(2) If the department receives a written complaint or otherwise obtains information that a licensee or license applicant may have committed a violation of this part, the department may, with the concurrence of a member of the screening panel established in 37-1-307, investigate to determine whether there is reasonable cause to believe that the licensee or license applicant has committed the violation. A person or private entity, but not a government entity, filing a complaint under this section in good faith is immune from suit in a civil action related to the filing or contents of the complaint.
(3) A person may not file a complaint under subsection (1) against a licensed or certified provider of health care or rehabilitative services for services that were provided to the person while incarcerated under the legal custody of the department of corrections. If the department of corrections has reason to believe that there has been a violation of this part arising out of health care or rehabilitative services provided to a person incarcerated under the legal custody of the department of corrections, the department of corrections shall report the possible violation to the department for appropriate action under subsection (2)."
Section 5. Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 25, chapter 10, and the provisions of Title 25, chapter 10, apply to [section 1].
(2) [Section 2] is intended to be codified as an integral part of Title 46, chapter 18, and the provisions of Title 46, chapter 18, apply to [section 2].
Section 6. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 7. Effective date. [This act] is effective on passage and approval.