SENATE BILL NO. 282
INTRODUCED BY W. CRISMORE, F. THOMAS, BECK, BERRY, R. BROWN, CARNEY, COLE, EKEGREN, KEENAN, MCCARTHY, MCGEE, MCNUTT, MILLER, MOOD, SLITER, YOUNKIN, ZOOK, CURTISS
AN ACT CREATING THE ASBESTOS CLAIMS COURT; PROVIDING FOR THE APPOINTMENT OF THE ASBESTOS CLAIMS JUDGE; PROVIDING FOR THE PROCEDURES TO BE USED FOR TRYING AN ASBESTOS-RELATED CLAIM; AMENDING SECTIONS 3-5-113, 3-5-115, 3-15-104, 3-15-204, AND 3-15-205, MCA; AND PROVIDING A CONTINGENT EFFECTIVE DATE.
WHEREAS, the Legislature finds that there are a large number of asbestos-related claims by Montana citizens that are primarily within the venue of the 19th Judicial District; and
WHEREAS, the large number of asbestos-related claims will impede the ability of the single District Court Judge in the 19th Judicial District to handle the normal case load of the District and will raise several potential conflicts of interest; and
WHEREAS, it is imperative that asbestos-related claims be dealt with expeditiously in order to allow Montana citizens with life-threatening illnesses to receive a speedy resolution of their claims; and
WHEREAS, Article VII, section 1, of the Montana Constitution allows additional courts to be provided by law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Definition. As used in [sections 1 through 5], unless the context requires otherwise, "asbestos-related claim" means an action brought for the recovery of monetary damages for personal injury, wrongful death, loss or consortium, or other injury arising out of an asbestos-related disease that is alleged to result from the mining of vermiculite, the processing of vermiculite, or the transfer, storage, installation, or removal of a product containing vermiculite.
Section 2. Asbestos claims judge. (1) A civil action involving an asbestos-related claim 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 supreme court as provided in 3-5-115, and sworn to try the cause before entering upon the duties in trying the cause. Upon appointment, the individual must be designated as the asbestos claims judge. The right to a jury trial is not waived by the stipulation to and appointment of the asbestos claims judge.
(2) The asbestos claims judge has the authority and power of an elected district court judge in the civil action involving an asbestos-related claim. All proceedings before the asbestos claims judge must be conducted in accordance with the rules of evidence and procedure governing district courts.
(3) Any order, judgment, or decree made or rendered in an asbestos-related civil case by the asbestos claims judge has the same force and effect as if made or rendered by the district court with the regular judge presiding.
(4) A party stipulating to have an asbestos-related claim heard by the asbestos claims judge may not file a motion for substitution of the judge pursuant to 3-1-804.
(5) All filings relating to an asbestos-related claim must be filed with the clerk of court in the judicial district in which the claim arose. The parties shall provide a copy of each filing to the asbestos claims judge.
Section 3. Asbestos claims court -- venue -- jury pool. (1) The asbestos claims judge may hear an asbestos-related claim in any venue stipulated by the parties as provided in 25-2-202 or in any venue otherwise determined by the asbestos claims judge in accordance with a stipulation of the parties. In stipulating venue, the parties shall take into consideration the availability of courtroom facilities. The asbestos claims court may prepare a list of available courtroom facilities for consideration of the parties.
(2) The pool of prospective jurors for an asbestos-related claim may be drawn from any county in accordance with a stipulation of the parties. The jurors must be drawn, as provided in 3-15-501 and 3-15-503, from the jury lists of the counties comprising the jury pool. The clerk of the district court for the district in which the trial is conducted shall notify the prospective jurors and make the statement provided for in 3-15-204(4).
Section 4. Operating expenses -- asbestos claims administration fund. The asbestos claims judge may employ the employees that may be required to carry out the duties under [sections 1 through 5]. All expenditures of the asbestos claims judge, including but not limited to salaries, travel expenses, office rent, office equipment, and supplies, must be paid out of the asbestos claims administration fund. The asbestos claims administration fund is the account in the state treasury in which the funding for the asbestos claims court is deposited.
Section 5. Direct appeal to supreme court. An appeal from a final decision of the asbestos claims judge must be filed directly with the supreme court of Montana in the manner provided by law for appeals from the district court in civil cases.
Section 6. 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 [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 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."
Section 7. 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. If Except as provided in [section 2], 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, he the district court judge may
appoint the judge pro tempore nominated by the parties to preside over the whole or any aspect of the action as if the
regular district court judge were presiding.
(2) An Except as provided in [section 2], 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 [section 2]."
Section 8. Section 3-15-104, MCA, is amended to read:
"3-15-104. Trial jury defined. A Except as provided in [section 3], a trial jury is a body of persons returned from the
citizens of a particular district before a court or officer of competent jurisdiction and sworn to try and determine, by verdict,
a question of fact."
Section 9. Section 3-15-204, MCA, is amended to read:
"3-15-204. Duties of clerk as to jurors. (1) The clerk must shall keep a record of the attendance of jurors and compute
the amount due for mileage. The distance from any point to the county seat must be determined by the shortest traveled
route.
(2) The clerk must shall give to each juror, at the time he the juror is excused from further service, a warrant signed by
himself the clerk, in which must be stated the name of the juror, the number of days' attendance, the number of miles
traveled, and the amount due.
(3) On presentation of such the warrant to the county treasurer, the amount specified in the warrant must be paid out of
the general fund unless the county has a district court fund. If the county has a district court fund, the amount must be paid
out of such the district court fund.
(4) The clerk must shall make a detailed statement containing a list of the jurors and the amount of fees and mileage
earned by each juror and file the same statement with the clerk of the board of county commissioners on the first day of
every regular meeting of the board. No A quarterly salary must may not be paid to the clerk until such the statement is
filed. The board must shall examine such the statement and see that it is correct.
(5) The clerk of court for the county in which an asbestos-related claim is tried shall perform the functions required in subsections (1) through (4). The payment of costs incurred under this section must be made from the asbestos claims administration fund provided for in [section 4]."
Section 10. Section 3-15-205, MCA, is amended to read:
"3-15-205. Costs of impaneling jury. (1) In a civil action before a court of record in which the parties substantially agree to a settlement of the issues prior to impanelment of the jury and either settle the action or stipulate to a continuance and then fail or refuse to inform the court or clerk of court of the settlement or request a continuance and a jury is impaneled, the court may, upon hearing, assess the reasonable public expenses of impaneling the jury, including jury fees and mileage expenses paid or owing under 3-15-201, against any party.
(2) In civil actions, the court may assess against a party the reasonable public expenses of impaneling a jury, including jury fees and mileage expenses paid or owing under 3-15-201, if the court on an issue of law or the jury on an issue of fact determines that the party's case is frivolous or maintained for purposes of harassment. The court shall instruct the jury regarding the provisions of this subsection.
(3) (a) Costs Except as provided in subsection (3)(b), costs collected under this section must be deposited in the county
general fund unless the county has a district court fund. If the county has a district court fund, the costs must be deposited
in the district court fund.
(b) Costs collected under this section by the asbestos claims court provided for in [section 3] must be deposited in the asbestos claims administration fund provided for in [section 4]."
Section 11. Codification instruction. [Sections 1 through 5] are intended to be codified as an integral part of Title 3, and the provisions of Title 3 apply to [sections 1 through 5].
Section 12. Contingent effective date. [This act] is effective contingent on a determination by the Montana supreme court that, based on decisions reached in the federal bankruptcy proceedings involving W.R. Grace and other circumstances that the court deems advisable to consider, there exists sufficient need to implement the provisions of [this act]. The court shall notify the secretary of state and the code commissioner when this contingency is met.
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