A BILL FOR AN ACT ENTITLED: "AN ACT generally revising criminal record laws; establishing a certificate of rehabilitation; providing procedures and conditions for issuance; creating a presumption of rehabilitation; PROVIDING CERTAIN LEGAL PROTECTIONS FOR LANDLORDS REGARDING RENTAL AND LEASING OF RESIDENTIAL PROPERTY TO INDIVIDUALS WITH A CRIMINAL BACKGROUND; PROVIDING CERTAIN LEGAL PROTECTIONS FOR PRIVATE EDUCATIONAL INSTITUTIONS AND PROGRAMS IN ADMITTING AND ENROLLING INDIVIDUALS WITH CRIMINAL BACKGROUNDS; AMENDING SECTIONS 37-1-203 AND 39-2-710, MCA; and PROVIDING AN IMMEDIATE EFFECTIVE DATE and A RETROACTIVE APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Certificate of rehabilitation -- procedure for issuance. (1) An individual with a felony criminal record, the individual's attorney, or a county attorney may file a petition requesting that a certificate of rehabilitation be issued by a court to the individual with a felony criminal record.
(2) The petition may must be filed with the sentencing court or the district court for the judicial district in which the petitioner resides. The petition must and be served on the county attorney in the county of the presiding district court sentencing court's jurisdiction.
(3) The petition must set forth the reasons the petitioner meets the requirements of [section 2].
(4) The court shall issue a certificate of rehabilitation to the petitioner if the court determines that the petitioner has met the requirements of [section 2] and the petitioner has remained a law-abiding citizen.
(5) An individual may not request a certificate of rehabilitation while charged with or pending a felony offense, a misdemeanor offense with a possible penalty of up to 1 year in jail, or a revocation of a conditional discharge under 46-23-1020(2) or revocation of parole of a suspended sentence.
(5)(6) Upon issue of the certificate of rehabilitation,
the court shall also issue an order including the name
of the individual receiving the certificate, that the individual has met the
requirements for the certificate of rehabilitation and is considered rehabilitated, and the date the certificate was issued.
NEW SECTION. Section 2. Certificate of rehabilitation -- conditions -- presumption. (1) After a petition is filed pursuant to [section 1(1)], a court shall issue a certificate of rehabilitation to an individual if the individual:
(a) (i) has received a conditional discharge under 46-23-1020; and
(ii) provides evidence of achieving one or more of the achievements listed in 46-23-1027(2)(a) through (2)(f); or
(b) (i) has completed 18 months of probation or parole supervision, a combination of 18 months of probation and parole supervision, one-half of a deferred sentence, or a minimum of 1 year in the community following the discharge of a sentence; and
(ii) provides evidence of meeting two or more of the achievements listed in 46-23-1027(2)(a) through (2)(f) while in the community; and
(c) within 1 year of the filing of the petition, has not been convicted while under conditional discharge or probation or parole supervision of a misdemeanor offense resulting in a term of incarceration exceeding 6 months, excluding traffic violations, or of a felony offense.
(2) Except as provided in subsection (4), the certificate of rehabilitation creates a presumption of rehabilitation and successful reentry into the community. The presumption is a bar against use of the individual's criminal record against the individual in:
(a) applications for attendance at a postsecondary educational institution or vocational training program that is required for participation or employment in an employment field; or
(b) mandated professional and occupational licensure or employment for which good moral character is a qualification factor as determined by a licensing board or certification authority.
(3) If an individual with the a properly issued certificate of rehabilitation is convicted of a felony or misdemeanor offense described in subsection (1)(c ), the county attorney in the jurisdiction where the conviction described in subsection (1)(c) occur red shall file a notice with the issuing court of the conviction. In with a possible penalty of up to 1 year in jail, in its sentencing order, the court shall state that the conviction requires automatic revocation of a previously issued certificate of rehabilitation. The court shall attach to the certificate of rehabilitation the order revoking the certificate based on the conviction.
(4) The presumption of rehabilitation described in subsection (2) does not overcome restrictions on employment in law enforcement or when explicitly barred due to federal or state law.
NEW SECTION. Section 3. Safe harbor for private landlords renting or leasing to individual with a criminal record. A private landlord who complies substantially and in good faith with this section may not be held liable for acts committed by a tenant with a criminal record solely on account that the tenant has a criminal record if:
(1) the tenant provides a valid certificate of completion issued by a correctional institution or an entity recognized by the department of corrections for rehabilitative treatment or a rehabilitative course;
(2) prior to the act committed by the tenant, the tenant provides to the private landlord a valid certificate of rehabilitation issued pursuant to [sections 1 and 2]; or
(3) the tenant provides false information about the tenant's criminal history on the rental application.
NEW SECTION. Section 4. Safe harbor in relation to accepting student with criminal record. A private educational or vocational institution or program that complies substantially and in good faith with the provisions of this section may not be held liable for acts committed by a student who is enrolled in a program or institution solely on account that the student has a criminal record if:
(1) the criminal history reviewed by the institution or program prior to accepting the student did not show a disposition of the case or indicated an acquittal or dismissal;
(2) the student was convicted of a misdemeanor offense;
(3) the student provides a valid certificate of completion issued by a correctional institution or an entity recognized by the department of corrections for rehabilitative treatment or a rehabilitative course; or
(4) prior to the act, the student provided a valid certificate of rehabilitation issued pursuant to [sections 1 and 2].
Section 5. Section 37-1-203, MCA, is amended to read:
"37-1-203. Conviction not a sole basis for denial -- when presumption of rehabilitation created. (1) Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No A licensing authority shall may not refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where unless a license applicant has been convicted of a criminal offense and such the criminal offense relates to the public health, welfare, and safety as it applies has a direct relationship to the occupation for which the license is sought, the. The licensing agency may, after investigation, find that the applicant so convicted with the previous criminal conviction has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.
(2) A certificate of rehabilitation issued pursuant to [sections 1 and 2] creates a presumption of rehabilitation and good moral character for the purposes of vocational and professional licensing."
Section 6. Section 39-2-710, MCA, is amended to read:
"39-2-710. Legal protections in relation to employing individuals with criminal records. A private employer who acts reasonably and complies in good faith and substantially complies with this section may not be held liable regarding claims of negligent hiring or negligent employment for acts committed by an employee with a criminal record if the acts are committed outside the scope of the employment and:
(1) the employer reviewed an arrest record prior to hiring that did not show a disposition of the case or that indicated an acquittal or a dismissal;
(b) an offense that was not related to the employment; or
(3) the employee with a criminal record is under the supervision of the probation and parole division of the department of corrections and the employment has been approved by the supervising officer; or
(4) prior to the act, the employee provided a valid certificate of rehabilitation issued pursuant to [sections 1 and 2]."
NEW SECTION. Section 7. Codification instruction. (1) [Sections 1 through 2] are intended to be codified as an integral part of Title 37, chapter 1, part 2, and the provisions of Title 37, chapter 1, part 2, apply to [sections 1 through 2].
(2) [Section 3] is intended to be codified as an integral part of Title 27, chapter 1, part 7, and the provisions of Title 27, chapter 1, part 7, apply to [section 3].
(3) [Section 4] is intended to be codified as an integral part of Title 20, chapter 1, and the provisions of Title 20, chapter 1, apply to [section 4].
NEW SECTION. Section 8. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 9. Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to an individual with a criminal record earned on or before [the effective date of this act] who petitions a sentencing court or the district court in the judicial district in which the person resides for a certificate of rehabilitation.