Senate Bill No. 255

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act providing penalties for civil rights violations; providing for the offense of civil rights violations; creating the office of inspector general; providing for the powers and duties of the inspector general; requiring a district court judge to state the reasons why a grand jury is not summoned pursuant to a request from the inspector general; providing for removal of a district court judge for failure to summon a grand jury; creating an inspector general oversight committee; amending sections 3-15-601, 46-11-304, and 46-11-308, MCA; and providing an immediate effective date and a retroactive applicability date ."

WHEREAS, allegations concerning official wrongdoing abound in the State of Montana; and

WHEREAS, the Legislature is constitutionally given the power of impeachment and is expected to use the power to protect the citizens of Montana; and

WHEREAS, the appointment of an Inspector General will only be made as needed as determined by the Inspector General Oversight Committee; and

WHEREAS, if an investigation discloses a false accusation, the accused will be vindicated; and

WHEREAS, if an investigation discloses wrongdoing, the offender will be punished.

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1. Civil rights violations. (1) A person shall be fined up to $5,000, imprisoned for not more than 10 years, or both, if the person and at least one other person purposely or knowingly conspire to injure, oppress, threaten, or intimidate a person:

(a) in the free exercise or enjoyment of any right or privilege secured to the person by the United States and Montana constitutions or laws of Montana; or

(b) because the person has exercised any right or privilege secured to the person by the United States and Montana constitutions or laws of the state of Montana.

(2) A person who, under color of law, statute, ordinance, or rule, purposely or knowingly deprives a person of any right, privilege, or immunity secured or protected by the constitution or laws of Montana shall be fined not more than $5,000, imprisoned for not more than 1 year, or both.

(3) (a) If bodily injury results from an act prohibited by this section or if the act includes the use, attempted use, or threatened use of a dangerous weapon, the offender shall be fined up to $20,000, imprisoned for not more than 10 years, or both.

(b) If death results from an act prohibited by this section, the offender shall be:

(i) fined up to $50,000, imprisoned for any term or for life, or both; or

(ii) subject to the death penalty as provided in Title 46, chapter 18, part 3.

(4) If a conviction is obtained pursuant to this section as a result of an investigation by the inspector general pursuant to [section 2], as a part of the sentence, the convicted person must be required to make restitution to the office of the inspector general and the county for the costs incurred in the investigation and the prosecution.

(5) Fines recovered under this section must be deposited in the state special revenue fund to be used for the purpose of funding the office of inspector general created in [section 2].

NEW SECTION. Section 2. Inspector general -- powers and duties -- grand jury. (1) The inspector general oversight committee created in [section 3] shall appoint an inspector general when determined necessary and may terminate the inspector general when the services of the inspector general are determined to be unnecessary. The inspector general may be retained in an unpaid, on-call status. The inspector general may employ staff to implement this section. The office of the inspector general is considered a criminal justice agency for purposes of Title 44, chapter 5, part 1.

(2) The inspector general shall investigate alleged:

(a) violations of [section 1];

(b) official corruption;

(d) official misconduct or other violations of law by public employees; and

(e) other matters the inspector general considers appropriate.

(3) In conducting the investigations authorized by subsection (2), the inspector general may:

(a) conduct or contract for audits;

(b) subpoena documents, records, and witnesses;

(d) gather evidence for commencing prosecutions;

(e) present evidence where and when necessary; and

(f) request any district court judge to summon a grand jury, pursuant to 3-15-601, to conduct inquiries into matters referred to in subsection (2).

(4) The provisions of Title 46, chapter 11, part 3, apply to a grand jury summoned pursuant to subsection (3)(f).

(5) A district court judge who refuses, without good cause, to summon a grand jury pursuant to subsection (3)(f) may be subject to impeachment and removal from office for obstruction of justice as decided by the inspector general oversight committee. The inspector general may file complaints with the judicial standards commission as provided in Title 3, chapter 1, part 11.

NEW SECTION. Section 3. Inspector general oversight committee. (1) There is an inspector general oversight committee. The committee consists of a senator and two representatives from different parties. The senator must be appointed by the president of the senate and the representatives must be appointed by the speaker of the house. The appointments must be made between the 75th and 90th legislative days. The committee members serve for 2 years. Committee members must be chosen from individuals who are not in occupations subject to outside influence and who are not subject to fear of reprisals by public officials, public employees controlled by state officials other than the legislature, potential defendants, or other citizens.

(2) The committee shall elect one of its members as presiding officer and may elect other officers it considers necessary. The committee shall meet as often as necessary. Committee members are entitled to compensation and expenses as provided in 5-2-302.

(3) The committee shall appoint and shall exercise legislative oversight of the office of the inspector general. The inspector general may not:

(a) have conflicting interests and may not be in a position subject to undue influence from outside sources;

(b) hold a position that would place the inspector general under control by any state officials other than the committee; and

(4) The committee shall present to each legislative session any recommendations for revisions of [section 1 or 2] that the committee considers appropriate. The committee must receive reports from the inspector general.

Section 4. Section 3-15-601, MCA, is amended to read:

"3-15-601. When and how drawn and summoned. (1) ~~Whenever in the opinion of the district judge a grand jury is necessary, he~~ To create a grand jury, the judge ~~must~~ shall make an order directing a grand jury to be drawn and summoned to attend before the court. If a grand jury is requested pursuant to [section 2], the judge shall state the reasons why the request is not granted. The order must specify the number of jurors to be drawn, which may not be less than 15 or more than 20.

(2) The jurors must be drawn from the jury box or the computer data base provided for in 3-15-404. If jurors are selected from the computer data base, it must be through a computerized random selection process that the judges of the district court of the county have approved in writing as the requirements for the drawing of grand juries. A copy of the latest jury list and a description of the approved computer process employed in the selection must be kept in the office of the clerk of court and be available for public inspection during normal business hours.

(3) The list of names ~~shall~~ must be certified and the jurors summoned in the same manner as for trial jurors. The names or numbers of any persons drawn who are not impaneled on the grand jury must be returned to the jury box or reinstated on the computer data base."

Section 5. Section 46-11-304, MCA, is amended to read:

"46-11-304. Appointing special prosecutor. (1) When the county attorney or attorney general is the subject of a grand jury investigation, the district court shall appoint a special prosecutor. If a special prosecutor is appointed, the county attorney's or attorney general's office may not participate in an official capacity, but staff members may appear as witnesses.

(2) When a grand jury is summoned pursuant to [section 2], the inspector general may be considered a special prosecutor for purposes of this part.

(3) The grand jury may substitute a district judge for cause if the grand jury determines obvious bias or prejudice.

(4) A grand jury indictment may not be dismissed and must proceed to trial."

Section 6. Section 46-11-308, MCA, is amended to read:

"46-11-308. Who may be present. The prosecutor, witnesses, interpreters, and a stenographer or operator of a recording device used for the purpose of taking the evidence may be present while the grand jury is in session. No person other than the jurors may be present while the grand jury is deliberating or voting, except that the inspector general may be present at a grand jury summoned pursuant to [section 2]."

NEW SECTION. Section 7. Codification instructions. (1) [Section 1] is intended to be codified as an integral part of Title 45, chapter 7, and the provisions of Title 45, chapter 7, apply to [section 1].

(2) [Sections 2 and 3] are intended to be codified as an integral part of Title 5, and the provisions of Title 5 apply to [sections 2 and 3].

NEW SECTION. Section 8. Retroactive applicability. [Sections 1 and 2] apply retroactively, within the meaning of 1-2-109, to events occurring prior to [the effective date of this act].

NEW SECTION. Section 9. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 10. Effective date. [This act] is effective on passage and approval.

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