HOUSE BILL NO. 567

INTRODUCED BY M. NOENNIG

BY REQUEST OF THE JOINT SELECT COMMITTEE ON CI-75

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY IMPLEMENTING ARTICLE VIII, SECTION 17, OF THE MONTANA CONSTITUTION; PROVIDING STATUTES OF LIMITATION FOR ACTIONS FOR TAX IMPOSITION OR PROPERTY TAX COLLECTION; PROVIDING THAT PROPERTY TAXES ARE CONSIDERED COLLECTED IN THE YEAR IN WHICH THEY ARE IMPOSED; PROVIDING A DEFINITION OF "COMPETITIVE MARKET"; PROVIDING AN INDEMNIFICATION FOR APPROPRIATE CIVIL LIABILITY; AMENDING SECTION 2-9-305, MCA; PROVIDING A CONTINGENT VOIDNESS PROVISION; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Actions for tax imposition or collection. (1) The period prescribed for commencement of an action upon a liability for imposition of a tax or fee in violation of Article VIII, section 17, of the Montana constitution is within 60 days of the date of the action taken to impose, increase, or extend the tax or fee.

(2) The period prescribed for commencement of an action based on the collection of property taxes in violation of Article VIII, section 17, of the Montana constitution is within 2 years of the date of collection of the property tax.

NEW SECTION. Section 2. Taxes collected. For purposes of Article VIII, section 17, of the Montana constitution, property taxes are considered collected for the year in which they are imposed even if the taxes are ultimately collected in a later year.

NEW SECTION. Section 3. Competitive market -- definitions. (1) For purposes of Article VIII, section 17, of the Montana constitution, a competitive market exists and the price is not monopolized by government, in a governmental unit, if the product, service, or function for which a financial charge is imposed is available from a nongovernmental source in the governmental unit imposing the charge.

(2) As used in this section, "governmental unit" means the state, a consolidated government, a county, a city, a town, a school district, or any other district created pursuant to law.

Section 4. Section 2-9-305, MCA, is amended to read:

"2-9-305. Immunization, defense, and indemnification of employees. (1) It is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment.

(2) In any noncriminal action brought against any employee of a state, county, city, town, or other governmental entity for a negligent act, error, or omission, including alleged violations of civil rights pursuant to 42 U.S.C. 1983, alleged violations of Article VIII, section 17, of the Montana constitution, or other actionable conduct of the employee committed while acting within the course and scope of the employee's office or employment, the governmental entity employer, except as provided in subsection (6), shall defend the action on behalf of the employee and indemnify the employee.

(3) Upon receiving service of a summons and complaint in a noncriminal action against an employee, the employee shall give written notice to the employee's supervisor requesting that a defense to the action be provided by the governmental entity employer. If the employee is an elected state official or other employee who does not have a supervisor, the employee shall give notice of the action to the legal officer or agency of the governmental entity defending the entity in legal actions of that type. Except as provided in subsection (6), the employer shall offer a defense to the action on behalf of the employee. The defense may consist of a defense provided directly by the employer. The employer shall notify the employee, within 15 days after receipt of notice, whether a direct defense will be provided. If the employer refuses or is unable to provide a direct defense, the defendant employee may retain other counsel. Except as provided in subsection (6), the employer shall pay all expenses relating to the retained defense and pay any judgment for damages entered in the action that may be otherwise payable under this section.

(4) In any noncriminal action in which a governmental entity employee is a party defendant, the employee must be indemnified by the employer for any money judgments or legal expenses, including attorney fees either incurred by the employee or awarded to the claimant, or both, to which the employee may be subject as a result of the suit unless the employee's conduct falls within the exclusions provided in subsection (6).

(5) Recovery against a governmental entity under the provisions of parts 1 through 3 of this chapter constitutes a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error, or omission or other actionable conduct gave rise to the claim. In that type of action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee's employment, unless the claim constitutes an exclusion provided in subsections (6)(b) through (6)(d).

(6) In a noncriminal action in which a governmental entity employee is a party defendant, the employee may not be defended or indemnified by the employer for any money judgments or legal expenses, including attorney fees, to which the employee may be subject as a result of the suit if a judicial determination is made that:

(a) the conduct upon which the claim is based constitutes oppression, fraud, or malice, or for any other reason does not arise out of the course and scope of the employee's employment;

(b) the conduct of the employee constitutes a criminal offense as defined in Title 45, chapters 4 through 7;

(c) the employee compromised or settled the claim without the consent of the government entity employer; or

(d) the employee failed or refused to cooperate reasonably in the defense of the case.

(7) If a judicial determination has not been made applying the exclusions provided in subsection (6), the governmental entity employer may determine whether those exclusions apply. However, if there is a dispute as to whether the exclusions of subsection (6) apply and the governmental entity employer concludes it should clarify its obligation to the employee arising under this section by commencing a declaratory judgment action or other legal action, the employer is obligated to provide a defense or assume the cost of the defense of the employee until a final judgment is rendered in the action holding that the employer did not have an obligation to defend the employee. The governmental entity employer does not have an obligation to provide a defense to the employee in a declaratory judgment action or other legal action brought against the employee by the employer under this subsection."

NEW SECTION. Section 5. Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 27, chapter 2, part 2, and the provisions of Title 27, chapter 2, part 2, apply to [section 1].

(2) [Section 2] is intended to be codified as an integral part of Title 15, chapter 1, part 5, and the provisions of Title 15, chapter 1, part 5, apply to [section 2].

(3) [Section 3] is intended to be codified as an integral part of Title 1, chapter 1, part 2, and the provisions of Title 1, chapter 1, part 2, apply to [section 3].

NEW SECTION. Section 6. Contingent voidness. If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid, then [this act] is void.

NEW SECTION. Section 7. Effective date. [This act] is effective on passage and approval.

- END -