House Bill No. 343
Introduced By grimes, nelson
A Bill for an Act entitled: An Act generally revising the laws relating to domestic violence; increasing certain filing fees; creating an account to help fund domestic violence shelters and crisis lines; providing that in partner or family member assault situations a peace officer may arrest the primary aggressor; providing that in any assault against a partner or family member an offender must go to jail without bail; providing that in a hearing for an order of protection the victim's past sexual history may not be placed into evidence; providing a privilege for a victim of partner or family member assault from disclosure of discussions with shelter workers and volunteers; clarifying that a conviction under the former domestic abuse statute is a conviction under the current partner or family member assault statute; amending sections 25-1-201, 40-15-202, 40-15-302, 45-5-206, 46-6-311, and 46-9-302, MCA; and providing an effective date, a retroactive applicability date, and a termination date.
Be it enacted by the Legislature of the State of Montana:
"25-1-201. Fees of clerk of district court. (1) The clerk of the district court shall collect the following fees:
(a) at the commencement of each action or proceeding, except a petition for dissolution of marriage, from the plaintiff or
petitioner, $80; for filing a complaint in intervention, from the intervenor, $80; for filing a petition for dissolution of
marriage, a fee of
$120 $150; and for filing a petition for legal separation, a fee of $120 $150;
(b) from each defendant or respondent, on appearance, $60;
(c) on the entry of judgment, from the prevailing party, $45;
(d) for preparing copies of papers on file in the clerk's office, 50 cents per page for the first five pages of each file, per request, and 25 cents per additional page;
(e) for each certificate, with seal, $2;
(f) for oath and jurat, with seal, $1;
(g) for search of court records, 50 cents for each year searched, not to exceed a total of $25;
(h) for filing and docketing a transcript of judgment or transcript of the docket from all other courts, the fee for entry of judgment provided for in subsection (1)(c);
(i) for issuing an execution or order of sale on a foreclosure of a lien, $5;
(j) for transmission of records or files or transfer of a case to another court, $5;
(k) for filing and entering papers received by transfer from other courts, $10;
(l) for issuing a marriage license, $30;
(m) on the filing of an application for informal, formal, or supervised probate or for the appointment of a personal representative or the filing of a petition for the appointment of a guardian or conservator, from the applicant or petitioner, $70, which includes the fee for filing a will for probate;
(n) on the filing of the items required in 72-4-303 by a domiciliary foreign personal representative of the estate of a nonresident decedent, $55;
(o) for filing a declaration of marriage without solemnization, $30;
(p) for filing a motion for substitution of a judge, $100.
(2) Except as provided in subsections (3) through (8), 32% of all fees collected by the clerk of the district court must be deposited in and credited to the district court fund. If no district court fund exists, that portion of the fees must be deposited in the general fund for district court operations. The remaining portion of the fees must be remitted to the state to be deposited as provided in 19-5-404.
(3) In the case of a fee collected for issuing a marriage license or filing a declaration of marriage without solemnization, $14 must be deposited in and credited to the state general fund, $6.40 must be deposited in and credited to the county general fund, and $9.60 must be remitted to the state to be deposited as provided in 19-5-404.
(4) Of the fee for filing a petition for dissolution of marriage or legal separation, $40 must be deposited in the state general fund, $35 must be remitted to the state to be deposited as provided in 19-5-404, $5 must be deposited in the children's trust fund account established by 41-3-702, $30 must be deposited in the partner and family member assault intervention and treatment fund established by [section 9], and $20 must be deposited in and credited to the district court fund. If no district court fund exists, the $20 must be deposited in the general fund for district court operations.
(5) (a) Before the percentages contained in subsection (2) are applied and the fees deposited in the district court fund or the county general fund or remitted to the state, the clerk of the district court shall deduct from the following fees the amounts indicated:
(i) at the commencement of each action or proceeding and for filing a complaint in intervention as provided in subsection (1)(a), $35;
(ii) from each defendant or respondent, on appearance, as provided in subsection (1)(b), $25;
(iii) on the entry of judgment as provided in subsection (1)(c), $15; and
(iv) from the applicant or petitioner, on the filing of an application for probate or for the appointment of a personal representative or on the filing of a petition for appointment of a guardian or conservator, as provided in subsection (1)(m), $15.
(b) The clerk of the district court shall deposit the money deducted in subsection (5)(a) in the county general fund for district court operations unless the county has a district court fund. If the county has a district court fund, the money must be deposited in that fund.
(6) The fee for filing a motion for substitution of a judge as provided in subsection (1)(p) must be remitted to the state to be deposited as provided in 19-5-404.
(7) Fees collected under subsections (1)(d) through (1)(i) must be deposited in the district court fund. If no district court fund exists, fees must be deposited in the general fund for district court operations.
(8) The clerk of the district court shall remit to the credit of the state general fund $20 of each fee collected under the provisions of subsections (1)(a) through (1)(c), (1)(m), and (1)(n) to fund a portion of judicial salaries."
"40-15-202. Order of protection -- hearing -- evidence. (1) A hearing must be conducted within 20 days from the date the court issues a temporary order of protection. At the hearing, the court shall determine whether good cause exists for the temporary order of protection to be continued, amended, or made permanent.
(2) The respondent may request an emergency hearing before the end of the 20-day period by filing an affidavit that demonstrates that the respondent has an urgent need for the emergency hearing. An emergency hearing must be set within 3 working days of the filing of the affidavit.
(3) The order of protection may not be made mutually effective by the court. The respondent may obtain an order of protection from the petitioner only by filing an application for an order of protection and following the procedure described in this chapter.
(4) (a) Except as provided in subsection (4)(b), evidence concerning a victim's sexual conduct is not admissible in a hearing under this section.
(b) Evidence of a victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease may be admitted in a hearing under this section only if that sexual conduct is at issue in the hearing.
(5) If a respondent proposes to offer evidence subject to subsection (4)(b), the trial judge shall order a separate hearing to determine whether the proposed evidence is admissible under subsection (4)(b)."
"40-15-302. Appeal to district court -- order to remain in effect. (1) An order issued by a justice's court, municipal court, or city court pursuant to 40-15-201 is immediately reviewable by the district judge upon the filing of a notice of appeal. The district judge may affirm, dissolve, or modify an order of a justice's court, municipal court, or city court made pursuant to 40-15-201 or 40-15-204.
(2) A case in which an order has been issued by a justice's court, municipal court, or city court pursuant to 40-15-201 or 40-15-204 may be removed to district court upon filing of a notice of removal.
(3) If a temporary order of protection or an order of protection issued by a court of limited jurisdiction is appealed or removed to an appellate court, the order continues in full force and effect unless modified by the appellate court."
"45-5-206. Partner or family member assault -- penalty. (1) A person commits the offense of partner or family member assault if the person:
(a) purposely or knowingly causes bodily injury to a partner or family member;
(b) negligently causes bodily injury to a partner or family member with a weapon; or
(c) purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member.
(2) For the purposes of Title 40, chapter 15, 46-6-311, and this section, the following definitions apply:
(a) "Family member" means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.
(b) "Partners" means spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.
(3) (a) An offender convicted of partner or family member assault shall be fined an amount not less than $100 or more than $1,000 and be imprisoned in the county jail for a term not to exceed 1 year or not less than 24 hours for a first offense. An offender convicted of a second offense under this section shall be fined not less than $300 or more than $1,000 and be imprisoned in the county jail not less than 72 hours or more than 1 year. Upon a first or second conviction, the offender may be ordered into misdemeanor probation as provided in 46-23-1005. On a third or subsequent conviction for partner or family member assault, the offender shall be fined not less than $500 and not more than $50,000 and be imprisoned for a term not less than 30 days and not more than 5 years. If the term of imprisonment does not exceed 1 year, the person shall be imprisoned in the county jail. If the term of imprisonment exceeds 1 year, the person shall be imprisoned in the state prison.
(b) For the purpose of determining the number of convictions under this section, a conviction means a conviction, as defined in 45-2-101, in this state, conviction for a violation of a similar statute in another state, or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state or in another state for a violation of a similar statute, which forfeiture has not been vacated. A prior conviction for domestic abuse under this section is a prior conviction for purposes of subsection (3)(a).
(4) (a) An offender convicted of partner or family member assault
shall must be required to pay for and complete a
counseling assessment with a focus on violence, dangerousness, and chemical dependency. The offender shall follow
through on all recommendations made by the counseling provider. The counselor counseling provider must be approved by
the court. The counseling must include a counseling assessment and a minimum of 25 hours of counseling, in addition to
the assessment. The assessment and the counseling must be:
(i) with a person licensed under Title 37, chapter 17, 22, or 23;
(ii) with a professional person as defined in 53-21-102; or
(iii) in a specialized domestic violence intervention program.
(b) The counseling provided in subsection (4)(a) must be directed to the violent conduct of the offender. Other issues indicated by the assessment may be addressed in additional counseling beyond the minimum 25 hours. Subsection (4)(a) does not prohibit the placement of the offender in other appropriate treatment if the court determines that there is no available treatment program directed to the violent conduct of the offender.
(5) In addition to any sentence imposed under subsections (3) and (4), after determining the financial resources and future ability of the offender to pay restitution as provided for in 46-18-242, the court shall require the offender, if able, to pay the victim's reasonable actual medical, housing, wage loss, and counseling costs.
(6) In addition to the requirements of subsection (5), if financially able, the offender
shall must be ordered to pay for the
costs of the offender's probation, if probation is ordered by the court.
(7) The court may prohibit an offender convicted under this section from possession or use of the firearm used in the assault. The court may enforce 45-8-323 if a firearm was used in the assault.
(8) At the time of sentencing, the court shall provide an offender a written copy of the offender's sentence."
"46-6-311. Basis for arrest without warrant -- arrest of primary aggressor. (1) A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.
(2) (a) The summoning of a peace officer to a place of residence by a partner or family member constitutes an exigent circumstance for making an arrest. Arrest is the preferred response in partner or family member assault cases involving injury to the victim, use or threatened use of a weapon, violation of a restraining order, or other imminent danger to the victim.
(b) When a peace officer responds to a partner or family member assault complaint and if it appears that the parties were involved in mutual aggression, the officer shall evaluate the situation to determine who is the primary aggressor. If, based on the officer's evaluation, the officer determines that one person is the primary aggressor, the officer may arrest only the primary aggressor. A determination of who the primary aggressor is must be based on but is not limited to the following considerations, regardless of who was the first aggressor:
(i) the prior history of violence between the partners or family members, if information about the prior history is available to the officer;
(ii) the relative severity of injuries received by each person;
(iii) whether an act of or threat of violence was taken in self-defense;
(iv) the relative sizes and apparent strength of each person;
(v) the apparent fear or lack of fear between the partners or family members; and
(vi) statements made by witnesses."
"46-9-302. Bail schedule -- acceptance by peace officer. (1) A judge may establish and post a schedule of bail for
offenses over which the judge has original jurisdiction. A person may not be released on bail without first appearing before
the judge when the offense is any assault on a partner or family member
assault, as partner or family member is defined in
45-5-206, or stalking, as defined in 45-5-220.
(2) A peace officer may accept bail on behalf of a judge:
(a) in accordance with the bail schedule established under subsection (1); or
(b) whenever the warrant of arrest specifies the amount of bail.
(3) Whenever a peace officer accepts bail, the officer shall give a signed receipt to the offender setting forth the bail received. The peace officer shall then deliver the bail to the judge before whom the offender is to appear, and the judge shall give a receipt to the peace officer for the bail delivered."
(2) This privilege belongs to the victim and may not be waived, except by express consent. The privilege continues even if the victim is unreachable. Consent may not be implied because the victim is a party to a divorce or custody proceeding. The privilege terminates upon the death of the victim.
(3) For purposes of this section, the following definitions apply:
(a) "Advocate" means an employee or volunteer of a domestic violence shelter, crisis line, or victim's services provider that provides services for victims of sexual assault, stalking, or any assault on a partner or family member.
(b) "Victim" means a person seeking assistance because of partner or family member assault, any sexual assault, or stalking, whether or not the victim seeks or receives services within the criminal justice system.
(2) The department shall distribute the money in the account, as provided in subsection (3), to agencies that provide direct services to victims of partner or family member assault, including but not limited to shelters, crisis lines, safe homes, and victim's counseling providers. A service provider is eligible to receive money under this section for services provided to a victim of partner or family member assault, whether or not the victim seeks or receives services within the criminal justice system.
(3) A service provider that provides direct services to victims of partner or family member assault shall apply to the department for distribution of money under this section. The department shall evaluate a provider's eligibility to receive money under this section based on available money, the needs of the provider, whether the provider includes programs focused on prevention of partner and family member assault, the quality of services provided by the provider, the need for services in the community, and the need for improved or continuing services in the community.
(2) [Section 9] is intended to be codified as an integral part of Title 40, chapter 15, part 1, and the provisions of Title 40, chapter 15, part 1, apply to [section 9].