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 an award of money damages received by a prisoner who was injured while under the supervision of the department of corrections be subject to garnishment for payment of victim restitution and per diem costs of imprisonment; prohibiting prisoners from filing complaints with the department of commerce against professional license holders or with the human rights commission; clarifying the use of and providing limitations on the issuance of writs of habeas corpus for inmates to testify in civil proceedings; and amending sections 25-10-404, 37-1-308, 49-2-501, and 53-9-109, MCA."
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. 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 unless the person is:
(a) a respondent in a proceeding to terminate parental rights; or
(b) a party to the civil proceeding and the court determines that the person 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.
NEW SECTION. Section 2. Report by supervising authority required. (1) Subsequent to any judgment awarding money damages to a prisoner under the legal custody of the department of corrections, the prisoner's supervising authority shall, upon request of the court, submit 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 incarcerated person; and
(iv) the amount of restitution currently owed by the incarcerated person for each sentence.
(2) 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 and repayment for per diem costs owed by the prisoner. The court shall issue an order:
(a) reducing the judgment awarding damages to the prisoner by the amount owed in restitution and repayment costs; and
(b) ordering the party owing money damages to the prisoner to pay an amount equal to the restitution owed by the prisoner to the crime victims compensation and assistance account established in 53-9-109 and to pay per diem costs owed by the prisoner. All restitution owned by the prisoner must be paid prior to 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, pretrial release, 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 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) The provisions of subsections (1) and (2) do not apply to an individual who is incarcerated."
Section 5. Section 49-2-501, MCA, is amended to read:
"49-2-501. Filing complaints -- exception. (1) A complaint may be filed by or on behalf of any person claiming to be
aggrieved by any discriminatory practice prohibited by this chapter. The complaint must be in the form of a written,
verified complaint stating the name and address of the person
, and the educational institution, financial institution, or
governmental entity or agency alleged to have engaged in the discriminatory practice and the particulars of the alleged
discriminatory practice. The commission staff may file a complaint in like manner when a discriminatory practice comes to
(2) (a) Except as provided in 49-2-510 and subsection (2)(b) of this section, a complaint under this chapter must be filed with the commission within 180 days after the alleged unlawful discriminatory practice occurred or was discovered.
(b) If the complainant has initiated efforts to resolve the dispute underlying the complaint by filing a grievance in accordance with any grievance procedure established by a collective bargaining agreement, contract, or written rule or policy, the complaint may be filed within 180 days after the conclusion of the grievance procedure if the grievance procedure concludes within 120 days after the alleged unlawful discriminatory practice occurred or was discovered. If the grievance procedure does not conclude within 120 days, the complaint must be filed within 300 days after the alleged unlawful discriminatory practice occurred or was discovered.
(c) Any complaint not filed within the times set forth
herein in this subsection (2) may not be considered by the
(3) The provisions of subsections (1) and (2) do not apply to an individual who is incarcerated."
Section 6. Section 53-9-109, MCA, is amended to read:
"53-9-109. Crime victims compensation and assistance account. (1) There is a crime victims compensation and
assistance account in the state special revenue fund. There must be paid into this account 18% of the fines assessed and
bails forfeited, except those paid to a justice's court, on all offenses involving a violation of chapter 3, part 1 of chapter 4, or
chapters 5 through 10 of Title 61 that are a result of citations or tickets issued by the highway patrol. Except as provided in
subsection subsections (2) and (3), the money in the account must be used solely for the purposes of this part and for
victims' assistance program coordination and planning provided by the division.
(2) The fund balance in the account as of March 31 of each year is limited to $500,000. Whenever the fund balance on March 31 exceeds $500,000, the amount of the fund balance in excess of $500,000 must be deposited in the general fund. (See compiler's comments for contingent termination of certain text.)
(3) Funds deposited into the account pursuant to [section 2] must be distributed to a victim or person who is qualified to receive restitution. If funds are insufficient to satisfy the claims of all qualified victims or persons, the funds must be distributed on a pro rata basis to each qualified victim or person. If a qualified victim or person cannot be located, that victim's or person's share of restitution must be retained in the account."
NEW SECTION. Section 7. Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 25, chapter 1, part 1, and the provisions of Title 25, chapter 1, part 1, apply to [sections 1].
(2) [Section 2] 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 2].