Senate Bill No. 350

Introduced By mcnutt, sliter, hibbard, krenzler, wells, mcgee, jore, mood, keenan, ohs, devlin, beaudry, mesaros, wagner, beck, mccarthy, grady, swysgood, harp, stang, shea, foster, bishop, denny, thomas, clark, grinde, anderson, m. taylor, rehbein, mahlum, kasten, miller

A Bill for an Act entitled: "An Act generally revising the laws relating to the commission for human rights; providing that the commission may not hire its own staff; TRANSFERRING THE STAFF OF THE COMMISSION TO THE DEPARTMENT OF LABOR AND INDUSTRY; providing that the staff of the commission is not independent of the commission or COMMISSIONER of labor; providing that commission staff THE DEPARTMENT may not file a complaint on behalf of another person; requiring the commission to adopt ADOPTION OF the montana rules of civil procedure, the montana rules of evidence, and appropriate rules of the montana code of criminal procedure as part of its procedural rules; requiring a pattern or practice that shows a conscious and intentional disregard for the prohibition against discrimination in housing advertisements before a violation occurs; providing that the commission COMMISSIONER may not apply to a district court for a preliminary injunction against a respondent; requiring commission staff THE DEPARTMENT to inform a potential respondent within 1 working day 10 BUSINESS DAYS after receipt of a complaint; preventing the commission DEPARTMENT from requesting a change of venue in a contested case hearing; prohibiting commission staff THE DEPARTMENT from petitioning a district court for enforcement of a commission order; restricting the commission DEPARTMENT from denying removal THE FILING of a case to IN district court; allowing a respondent to remove a case to district court; requiring a case removed to district court to be heard de novo; revising penalty provisions; providing that a person may avoid self-incrimination in discrimination cases; amending sections 2-15-1706, 39-1-102, 49-2-101, 49-2-203, 49-2-204, 49-2-305, 49-2-501, 49-2-503, 49-2-504, 49-2-505, 49-2-506, 49-2-508, 49-2-509, AND 49-2-510, and 49-2-601, MCA; REPEALING SECTIONS 49-2-201, 49-2-502, 49-3-304, 49-3-305, 49-3-306, 49-3-307, 49-3-308, 49-3-309, 49-3-310, 49-3-311, AND 49-3-312, MCA; and providing an immediate effective date and a retroactive AN applicability date."

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

NEW SECTION. Section 1.  Purpose. It is the intent of the legislature that the commission sit in independent judgment of complaints of alleged discrimination in Montana and that the commission staff operate under the direction and control of the commissioner of labor. The staff is not independent of the commissioner. It is the intent of the legislature that the commission and the commission staff DEPARTMENT not favor or assist, directly or indirectly, complainants or respondents with procedural or substantive matters of discrimination in Montana. The commission AND THE DEPARTMENT shall maintain the highest standards of objectivity and impartiality when judging cases asserting alleged discrimination in Montana. IT IS NOT THE INTENT OF THE LEGISLATURE THAT THE DEPARTMENT BE PROHIBITED FROM DISMISSING MATTERS, FROM REFERRING MATTERS TO OTHER AGENCIES FOLLOWING AN INITIAL INQUIRY AND INTERVIEW, OR FROM REACHING A DECISION IN AN INVESTIGATION OR CONTESTED CASE HEARING.

Section 2.  Section 2-15-1706, MCA, is amended to read:

"2-15-1706.   Commission for human rights -- allocation -- quasi-judicial. (1) There is a commission for human rights.

(2)  The commission consists of five members appointed by the governor with the consent of the senate.

(3)  The commission is designated as a quasi-judicial board for the purposes of 2-15-124 and its members shall must be compensated and receive travel expenses as provided for in 2-15-124.

(4)  The commission is allocated to the department of labor and industry for administrative purposes only as provided in 2-15-121, except that the commission may hire its own personnel, may seek and receive private and federal funds in its own name, and may determine all matters of policy concerning the use of its budget. Subsection (2)(d) of 2-15-121 shall not apply for purposes of this section."

SECTION 3.  SECTION 39-1-102, MCA, IS AMENDED TO READ:

"39-1-102.   Duties of department. The department shall enforce all the laws of Montana relating to hours of labor, conditions of labor, prosecution of employers who default in payment of wages, protection of employees, and all laws relating to child labor which that regulate the employment of children in any manner and shall administer the laws of the state relating to free employment offices and all other state labor laws. The department shall investigate and enforce the laws prohibiting discrimination contained in Title 49, chapters 2 and 3, and provide a means for conciliation between parties."

SECTION 4.  SECTION 49-2-101, MCA, IS AMENDED TO READ:

"49-2-101.   Definitions. As used in this chapter, unless the context requires otherwise, the following definitions apply:

(1)  "Age" means number of years since birth. It does not mean level of maturity or ability to handle responsibility. These latter criteria may represent legitimate considerations as reasonable grounds for discrimination without reference to age.

(2) "Aggrieved party" means a person who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and who has been or is likely to be specially and injuriously affected by a violation of this chapter.

(2)(3)  "Commission" means the commission for human rights provided for in 2-15-1706.

(4) "Commissioner" means the commissioner of labor and industry provided for in 2-15-1701.

(3)(5)  "Credit" means the right granted by a creditor to a person to defer payment of a debt, to incur debt and defer its payment, or to purchase property or services and defer payment. It includes without limitation the right to incur and defer debt that is secured by residential real property.

(4)(6)  "Credit transaction" means any invitation to apply for credit, application for credit, extension of credit, or credit sale.

(5)(7)  "Creditor" means a person who, regularly or as a part of the person's business, arranges for the extension of credit for which the payment of a financial charge or interest is required, whether in connection with loans, sale of property or services, or otherwise.

(8) "Department" means the department of labor and industry provided for in 2-15-1701.

(6)(9)  "Educational institution" means a public or private institution and includes an academy; college; elementary or secondary school; extension course; kindergarten; nursery; school system; university; business, nursing, professional, secretarial, technical, or vocational school; or agent of an educational institution.

(7)(10)  "Employee" means an individual employed by an employer.

(8)(11)  "Employer" means an employer of one or more persons or an agent of the employer but does not include a fraternal, charitable, or religious association or corporation if the association or corporation is not organized either for private profit or to provide accommodations or services that are available on a nonmembership basis.

(9)(12)  "Employment agency" means a person undertaking to procure employees or opportunities to work.

(10)(13) "Financial institution" means a commercial bank, trust company, savings bank, finance company, savings and loan association, credit union, investment company, or insurance company.

(11)(14) "Housing accommodation" means a building or portion of a building, whether constructed or to be constructed, that is or will be used as the sleeping quarters of its occupants.

(12)(15) "Labor organization" means an organization or an agent of an organization organized for the purpose, in whole or in part, of collective bargaining, of dealing with employers concerning grievances or terms or conditions of employment, or of other mutual aid and protection of employees.

(13)(16) "National origin" means ancestry.

(17) (a) "Organization" means a corporation, association, or any other legal or commercial entity that engages in advocacy of, enforcement of, or compliance with legal interests affected by this chapter.

(b) The term does not include a labor organization.

(14)(18) "Person" means one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated employees' associations, employers, employment agencies, organizations, or labor organizations.

(15)(19) (a) "Physical or mental disability" means:

(i)  a physical or mental impairment that substantially limits one or more of a person's major life activities;

(ii) a record of such an impairment; or

(iii) a condition regarded as such an impairment.

(b)  Discrimination based on, because of, on the basis of, or on the grounds of physical or mental disability includes the failure to make reasonable accommodations that are required by an otherwise qualified person who has a physical or mental disability. An accommodation that would require an undue hardship or that would endanger the health or safety of any person is not a reasonable accommodation.

(16)(20) (a) "Public accommodation" means a place that caters or offers its services, goods, or facilities to the general public subject only to the conditions and limitations established by law and applicable to all persons. It includes without limitation a public inn, restaurant, eating house, hotel, roadhouse, place where food or alcoholic beverages or malt liquors are sold for consumption, motel, soda fountain, soft drink parlor, tavern, nightclub, trailer park, resort, campground, barbershop, beauty parlor, bathroom, resthouse, theater, swimming pool, skating rink, golf course, cafe, ice cream parlor, transportation company, or hospital and all other public amusement and business establishments.

(b)  Public accommodation does not include an institution, club, or place of accommodation that proves that it is by its nature distinctly private. An institution, club, or place of accommodation may not be considered by its nature distinctly private if it has more than 100 members, provides regular meal service, and regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages, directly or indirectly, from or on behalf of nonmembers, for the furtherance of trade or business. For the purposes of this subsection (16) (20), any lodge of a recognized national fraternal organization is considered by its nature distinctly private.

(17) "Staff" or "commission staff" means the staff of the commission for human rights."

Section 5.  Section 49-2-203, MCA, is amended to read:

"49-2-203.   Subpoena power. (1) The commission may subpoena witnesses, take the testimony of any person under oath, administer oaths, and, in connection therewith, require the production for examination of books, papers, or other tangible evidence relating to a matter either under investigation by the commission staff or in question before the commission. The commission may delegate the foregoing powers to a person within the staff for the purpose of investigating a complaint.

(2) THE DEPARTMENT'S STAFF MAY REQUEST THAT A SUBPOENA RELATING TO A MATTER UNDER INVESTIGATION BE ISSUED BY THE COMMISSIONER OR THE COMMISSIONER'S AUTHORIZED REPRESENTATIVE. THE AUTHORIZED REPRESENTATIVE MAY NOT BE INVOLVED IN ENFORCEMENT OF HUMAN RIGHTS. THE COMMISSIONER MAY SUBPOENA WITNESSES, TAKE TESTIMONY UNDER OATH, ADMINISTER OATHS, AND REQUIRE THE PRODUCTION, FOR EXAMINATION, OF BOOKS, PAPERS, OR OTHER INTANGIBLE EVIDENCE.

(3) A PARTY MAY REQUEST SUBPOENAS FROM THE COMMISSIONER FOR THE PURPOSES PROVIDED IN SUBSECTION (2).

(2)(4)  Subpoenas issued pursuant to this section may be enforced as provided in 2-4-104 of the Montana Administrative Procedure Act."

Section 6.  Section 49-2-204, MCA, is amended to read:

"49-2-204.   Commission to adopt rules RULES. (1) The commission shall adopt procedural and substantive rules necessary to implement THE COMMISSION'S RESPONSIBILITIES UNDER this chapter. Rulemaking procedures shall must comply with the requirements of the Montana Administrative Procedure Act. At a minimum, the commission shall adopt as part of its procedural rules ALL APPLICABLE PORTIONS OF the Montana Rules of Civil Procedure and the Montana Rules of Evidence. The commission may adopt a portion of the Montana Code of Criminal Procedure, THE PROCEDURAL PROVISIONS OF TITLE 46 as it considers appropriate.

(2) THE DEPARTMENT SHALL ADOPT PROCEDURAL AND SUBSTANTIVE RULES NECESSARY TO IMPLEMENT THE DEPARTMENT'S RESPONSIBILITIES UNDER THIS CHAPTER. RULES ADOPTED UNDER THIS CHAPTER MUST COMPLY WITH THE MONTANA ADMINISTRATIVE PROCEDURE ACT. FOR CONTESTED CASE HEARINGS CONDUCTED PURSUANT TO 49-2-505, THE DEPARTMENT SHALL ADOPT ALL APPLICABLE PORTIONS OF THE MONTANA RULES OF CIVIL PROCEDURE AND THE MONTANA RULES OF EVIDENCE."

Section 5.  Section 49-2-305, MCA, is amended to read:

"49-2-305.   Discrimination in housing -- exemptions. (1) It is an unlawful discriminatory practice for the owner, lessee, or manager having the right to sell, lease, or rent a housing accommodation or improved or unimproved property or for any other person:

(a)  to refuse to sell, lease, or rent the housing accommodation or property to a person because of sex, marital status, race, creed, religion, color, age, familial status, physical or mental disability, or national origin;

(b)  to discriminate against a person because of sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin in a term, condition, or privilege relating to the use, sale, lease, or rental of the housing accommodation or property;

(c)  to make an inquiry of the sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin of a person seeking to buy, lease, or rent a housing accommodation or property for the purpose of discriminating on the basis of sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin;

(d)  to refuse to negotiate for a sale or to otherwise make unavailable or deny a housing accommodation or property because of sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin;

(e)  to represent to a person that a housing accommodation or property is not available for inspection, sale, or rental because of that person's sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin when the housing accommodation or property is in fact available; or

(f)  for profit, to induce or attempt to induce a person to sell or rent a housing accommodation or property by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin.

(2)  The rental of sleeping rooms in a private residence designed for single-family occupancy in which the owner also resides is excluded from the provisions of subsection (1), provided that if the owner rents no more than three sleeping rooms within the residence.

(3) (a) It Except as provided in subsection (3)(b), it is an unlawful discriminatory practice to make, print, or publish or cause to be made, printed, or published any notice, statement, or advertisement that indicates any preference, limitation, or discrimination that is prohibited by subsection (1) or any intention to make or have a prohibited preference, limitation, or discrimination.

(b) If the printing or publication of the notice, statement, or advertisement was by a person regularly engaged in the business of publishing classified housing notices, statements, or advertisements, subsection (3)(a) is not violated unless it is shown that the printing or publication of the notice, statement, or advertisement is part of a pattern or practice of printing or publishing notices, statements, or advertisements in violation of subsection (3)(a) that demonstrates a conscious and intentional disregard for the provisions of subsections (1) and (3)(a).

(4)  It is an unlawful discriminatory practice for a person to discriminate because of a physical or mental disability of a buyer, lessee, or renter; a person residing in or intending to reside in or on the housing accommodation or property after it is sold, leased, rented, or made available; or any person associated with that buyer, lessee, or renter:

(a)  in the sale, rental, or availability of the housing accommodation or property;

(b)  in the terms, conditions, or privileges of a sale or rental of the housing accommodation or property; or

(c)  in the provision of services or facilities in connection with the housing accommodation or property.

(5)  For purposes of subsections (1) and (4), discrimination because of physical or mental disability includes:

(a)  refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person with a disability if the modifications may be necessary to allow the person full enjoyment of the premises, except that in the case of a lease or rental, the landlord may, where when it is reasonable to do so, condition permission for a modification on the lessor's or renter's agreement to restore the interior of the premises to the condition that existed before the modification, except for reasonable wear and tear;

(b)  refusal to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to allow the person equal opportunity to use and enjoy a housing accommodation or property; or

(c)  (i) except as provided in subsection (5)(c)(ii), in connection with the design and construction of a covered multifamily housing accommodation, a failure to design and construct the housing accommodation in a manner that:

(A)  provides at least one accessible building entrance on an accessible route;

(B)  makes the public use and common use portions of the housing accommodation readily accessible to and usable by a person with a disability;

(C)  provides that all doors designed to allow passage into and within all premises within the housing accommodation are sufficiently wide to allow passage by a person with a disability who uses a wheelchair; and

(D)  ensures that all premises within the housing accommodation contain the following features of adaptive design:

(I)  an accessible route into and through the housing accommodation;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms that allow an individual who uses a wheelchair to maneuver about the space;

(ii) a covered multifamily housing accommodation that does not have at least one building entrance on an accessible route because it is impractical to do so due to because of the terrain or unusual characteristics of the site is not required to comply with the requirements of subsection (5)(c)(i).

(6)  For purposes of subsection (5), the term "covered multifamily housing accommodation" means:

(a)  a building consisting of four or more dwelling units if the building has one or more elevators; and

(b)  ground floor units in a building consisting of four or more dwelling units.

(7)  (a) It is an unlawful discriminatory practice for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate because of sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin against a person in making available a transaction or in the terms or conditions of a transaction.

(b)  For purposes of this subsection (7), the term "residential real estate-related transaction" means any of the following:

(i)  the making or purchasing of loans or providing other financial assistance:

(A)  for purchasing, constructing, improving, repairing, or maintaining a housing accommodation or property; or

(B)  secured by residential real estate; or

(ii) the selling, brokering, or appraising of residential real property.

(8)  It is an unlawful discriminatory practice to:

(a) deny a person access to or membership or participation in:

(i) a multiple-listing service;

(ii) a real estate brokers' organization; or

(iii) any other service, organization, or facility relating to the business of selling, leasing, or renting housing accommodations or property; or to

(b) discriminate against the person referred to in subsection (8)(a) in the terms or conditions of access, membership, or participation because of sex, marital status, race, creed, religion, age, familial status, physical or mental disability, color, or national origin.

(9)  It is an unlawful discriminatory practice to coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of or because of the person having exercised or enjoyed or having aided or encouraged any other person in the exercise or enjoyment of a right granted or protected by this section.

(10) The prohibitions of this section against discrimination because of age and familial status do not extend to housing for older persons. "Housing for older persons" means housing:

(a)  provided under any state or federal program specifically designed and operated to assist elderly persons;

(b)  intended for, and solely occupied by, persons 62 years of age or older; or

(c)  intended and operated for occupancy by at least one person 55 years of age or older per unit in accordance with the provisions of 42 U.S.C. 3607(b)(2)(C) and (3) and 24 CFR 100.304, as those sections read on October 1, 1989.

(11) The prohibitions of subsection (1) against discrimination because of age and familial status do not extend to rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than two families living independently of each other, if the owner actually maintains and occupies one of the living quarters as the owner's residence.

(12) For purposes of this section, "familial status" means having a child or children who live or will live with a person. A distinction based on familial status includes one that is based on the age of a child or children who live or will live with a person."

Section 7.  Section 49-2-501, MCA, is amended to read:

"49-2-501.   Filing complaints. (1) A complaint may be filed WITH THE DEPARTMENT by or on behalf of any person PARTY claiming to be aggrieved by any discriminatory practice prohibited by this chapter.

(2) A COMPLAINT MAY BE FILED ON BEHALF OF A PARTY CLAIMING TO BE AGGRIEVED BY A DISCRIMINATORY PRACTICE PROHIBITED BY THIS CHAPTER IF THE PERSON ACTING ON BEHALF OF THE AGGRIEVED PARTY IS THE AGGRIEVED PARTY'S GUARDIAN, ATTORNEY, OR DULY AUTHORIZED REPRESENTATIVE OR AN ADVOCACY GROUP, LABOR ORGANIZATION, OR OTHER ORGANIZATION ACTING AS AN AUTHORIZED REPRESENTATIVE.

(3) The complaint must be in the form of a written, verified complaint stating the name and address of the person PARTY, 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 its attention.

(2)(4)  (a) Except as provided in 49-2-510 and subsection (2)(b) (4)(B) of this section, a complaint under this chapter must be filed with the commission DEPARTMENT 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 section may not be considered by the commission OR THE DEPARTMENT."

Section 8.  Section 49-2-503, MCA, is amended to read:

"49-2-503.   Temporary relief by court order. At any time after a complaint is filed under this chapter, a district court may, upon the application of THE COMMISSIONER OR the commission or the complainant, enter a preliminary injunction against a respondent in the case. The procedure for granting the order is as provided by statute for preliminary injunctions in civil actions."

Section 9.  Section 49-2-504, MCA, is amended to read:

"49-2-504.   Informal settlement INVESTIGATION AND CONCILIATION. (1) (A) The commission staff DEPARTMENT shall informally investigate the matters set out in a filed THE complaint promptly and impartially. If the staff DEPARTMENT determines that the allegations are supported by substantial a preponderance of the evidence, it shall immediately try to ATTEMPT TO ACHIEVE A RESOLUTION OF THE COMPLAINT BY CONFERENCE, CONCILIATION, AND PERSUASION THAT, IN ADDITION TO PROVIDING REDRESS FOR THE COMPLAINT, INCLUDES CONDITIONS THAT eliminate the discriminatory practice by conference, conciliation, and persuasion, IF ANY, IDENTIFIED IN THE INVESTIGATION. The staff DEPARTMENT shall, upon the first working day WITHIN 10 BUSINESS DAYS following receipt of a filed complaint, notify a potential respondent that the respondent is the subject of a filed complaint. The notification must be in writing and must include a copy of the filed complaint, together with all documents submitted to the commission or its staff with the complaint. IF REQUESTED, THE DEPARTMENT SHALL ALSO PROVIDE THE PARTIES WITH ALL OTHER INFORMATION RELATED TO THE COMPLAINT IN THE POSSESSION OF THE DEPARTMENT THAT IS NOT CURRENTLY IN THE POSSESSION OF THE PARTIES OR A PARTY. THE DEPARTMENT SHALL MAKE KNOWN TO THE PARTIES THE FACT THAT INFORMATION IS AVAILABLE UPON REQUEST. THE DEPARTMENT MAY NOT INVESTIGATE A COMPLAINT UNTIL IT HAS RECEIVED NOTICE THAT THE RESPONDENT HAS RECEIVED THE DEPARTMENT'S NOTIFICATION OF THE COMPLAINT.

(B) IF A COMPLAINT IS FILED RELATIVE TO AN EMPLOYMENT-RELATED COMPLAINT AND IF THE COMMISSIONER DECIDES THAT THE INCLUSION OF DOCUMENTS OR INFORMATION CONTAINED IN THE COMPLAINT WOULD SERIOUSLY IMPEDE THE RIGHTS OF A PERSON OR THE PROPER INVESTIGATION OF THE COMPLAINT, THE INFORMATION MAY BE EXCLUDED FROM THE NOTIFICATION BY PROVIDING A WRITTEN SUMMARY OF THE INFORMATION CONTAINED IN THE COMPLAINT. THE WRITTEN SUMMARY MUST INCLUDE SUFFICIENT INFORMATION TO GIVE MAXIMUM EFFECT TO THE INTENT OF THIS CHAPTER.

(2) THE RESPONDENT SHALL FILE AN ANSWER TO A COMPLAINT FILED WITH THE DEPARTMENT WITHIN 10 BUSINESS DAYS OF THE RESPONDENT'S RECEIPT OF THE COMPLAINT. AN ANSWER MAY BE A RESPONSE SIMPLY ADMITTING OR DENYING THE ALLEGATIONS WITHOUT FURTHER SPECIFICITY OR REQUESTING ADDITIONAL INFORMATION FROM THE DEPARTMENT. THE TIME FOR FILING AN ANSWER MAY BE EXTENDED BY A SHOWING OF GOOD CAUSE.

(3) THE DEPARTMENT SHALL COMMENCE PROCEEDINGS WITHIN 30 DAYS AFTER RECEIPT OF A COMPLAINT.

(4) THE DEPARTMENT SHALL MAKE A FINDING REGARDING THE MERIT OR NONMERIT OF THE COMPLAINT WITHIN 180 DAYS AFTER A COMPLAINT IS FILED, EXCEPT THAT THE DEPARTMENT SHALL MAKE THE FINDING WITHIN 120 DAYS AFTER A COMPLAINT IS FILED UNDER 49-2-305."

Section 10.  Section 49-2-505, MCA, is amended to read:

"49-2-505.   Contested case hearing. (1) If the informal efforts to eliminate the alleged discrimination are unsuccessful, the staff DEPARTMENT shall inform the commission of the failure and the commission shall cause written notice to be served, together with a copy of the complaint, requiring the person, educational institution, financial institution, or governmental entity or agency charged in the complaint to answer the allegations of the complaint at a hearing before the commission HOLD A HEARING ON THE COMPLAINT. THE DEPARTMENT SHALL SERVE NOTICE OF THE HEARING AND A COPY OF THE COMPLAINT ON THE PARTIES.

(2) (A) IF THE PARTIES MUTUALLY AGREE TO PERMIT THE DEPARTMENT TO RETAIN JURISDICTION OF THE CASE UNDER THIS CHAPTER FOR A PERIOD OF TIME THAT EXCEEDS 12 MONTHS AFTER THE COMPLAINT WAS FILED, THEN THE PARTIES SHALL STIPULATE TO A SCHEDULE FOR PROCEEDINGS TO BE ESTABLISHED BY THE DEPARTMENT.

(B) THE DEPARTMENT SHALL, NOT LATER THAN 395 DAYS AFTER THE COMPLAINT WAS FILED, SET A DATE FOR AN ADMINISTRATIVE HEARING IN THE CASE.

(C) THE CASE MUST BE HEARD NO LATER THAN 90 DAYS AFTER THE DATE IS SET BY THE DEPARTMENT. THE DEPARTMENT MAY, IN ITS SOLE DISCRETION, ISSUE A CONTINUANCE OF THE HEARING DATE ONLY UPON A SHOWING OF GOOD CAUSE.

(2)(3) (A)  The hearing must be held by the commission DEPARTMENT in the county where the unlawful conduct is alleged to have occurred unless the person, institution, entity, or agency A PARTY charged in the complaint or the commission requests AND IS GRANTED a change of venue for good cause shown. The case in support of the complaint may be presented before the commission DEPARTMENT by the staff, the complainant, or an attorney representing the complainant. The hearing and any subsequent proceedings under this chapter must be held in accordance with the APPLICABLE PORTIONS OF THE Montana Administrative Procedure Act except as provided in 49-2-508 Rules of Civil Procedure AS ADOPTED BY THE DEPARTMENT.

(B) UPON REQUEST OF THE HEARINGS OFFICER, THE DEPARTMENT MAY PRESENT EVIDENCE WITH REGARD TO ACTIVITY CONDUCTED. HOWEVER, EXCEPT IN CASES BROUGHT PURSUANT TO 42 U.S.C. 3601, ET SEQ., THE DEPARTMENT MAY NOT REPRESENT EITHER PARTY IN A CONTESTED CASE HEARING.

(3) A PARTY MAY APPEAL A DECISION OF THE HEARINGS OFFICER TO THE COMMISSION. A PARTY SHALL PROVIDE NOTICE OF ITS APPEAL TO THE COMMISSION, THE DEPARTMENT, AND ALL PARTIES WITHIN 10 BUSINESS DAYS OF RECEIPT OF THE NOTICE OF DECISION OF THE ADMINISTRATIVE HEARING. THE COMMISSION SHALL HEAR ALL APPEALS WITHIN 120 DAYS OF RECEIPT OF NOTICE OF APPEAL. THE COMMISSION SHALL RENDER A DECISION WITHIN 90 DAYS OF HEARING THE APPEAL.

(4) ALL HEARINGS CONDUCTED UNDER THIS SECTION MAY, UPON STIPULATION OF THE PARTIES, BE HEARD TELEPHONICALLY.

(3)(5)  The commission may make provisions for defraying the expenses of an indigent party in a contested case hearing held pursuant to this chapter.

(4)(6)  The prevailing party in a hearing under this section may bring an action in district court for attorneys' attorney fees. The court in its discretion may allow the prevailing party reasonable attorneys' attorney fees. An action under this section must comply with the Montana Rules of Civil Procedure."

Section 11.  Section 49-2-506, MCA, is amended to read:

"49-2-506.  Procedure upon a finding of discrimination. (1) If the commission OR THE DEPARTMENT, AFTER A HEARING, finds that a person, institution, entity, or agency PARTY against whom a complaint was filed has engaged in the discriminatory practice alleged in the complaint, the commission OR THE DEPARTMENT shall order him the person or it the institution, entity, or agency PARTY to refrain from engaging in the discriminatory conduct. The order may:

(a)  prescribe conditions on the accused's future conduct relevant to the type of discriminatory practice found;

(b)  require any reasonable measure to correct the discriminatory practice and to rectify any harm, pecuniary or otherwise, to the person discriminated against;

(c)  require a report on the manner of compliance.

(2)  Except as provided in 49-2-510, the The EXCEPT AS PROVIDED IN 49-2-510, THE order may not require the payment of any punitive damages.

(3)  Whenever a commission OR DEPARTMENT order or conciliation agreement requires inspection by the commission staff DEPARTMENT for a period of time to determine if the respondent is complying with that order or agreement, the period of time may not be more than 3 years 1 year."

Section 12.  Section 49-2-508, MCA, is amended to read:

"49-2-508.   Enforcement of commission OR DEPARTMENT order OR CONCILIATION AGREEMENT. If the commission's order ISSUED UNDER 49-2-506 is not obeyed, the commission staff or THE COMMISSIONER OR a party may petition the district court in the county where the discriminatory practice occurred or in which the respondent resides or transacts business to enforce the commission's OR DEPARTMENT'S order by any appropriate order. THE COMMISSIONER OR A PARTY MAY ALSO COMMENCE A CIVIL ACTION IN AN APPROPRIATE DISTRICT COURT FOR RELIEF FOR A BREACH OF A CONCILIATION AGREEMENT."

Section 13.  Section 49-2-509, MCA, is amended to read:

"49-2-509.   Filing a Removal CONCLUSION of complaint in to -- FILING IN district court. (1) Except as provided in subsection (2) or with respect to complaints alleging a violation of 49-2-305, the commission staff DEPARTMENT shall, at the request of either party, issue a letter entitling the complainant or the respondent to file remove a discrimination action in to district court CONCLUDE THE ADMINISTRATIVE PROCEEDINGS if::

(a)  the commission has not yet held a contested case hearing pursuant to 49-2-505

(A) THE DEPARTMENT HAS COMPLETED ITS INVESTIGATION IN A COMPLAINT FILED PURSUANT TO 49-2-305; OR

(B) 12 MONTHS HAVE ELAPSED SINCE THE COMPLAINT WAS FILED; and

(b)  12 months have elapsed since the complaint was filed.

(2)  The commission DEPARTMENT staff may not refuse to permit removal of a case to district court CONCLUDE THE ADMINISTRATIVE PROCEEDINGS if unless:

(a)  the party requesting removal fails to comply with the terms of a lawful subpoena issued in the investigative process;

(b)(a)  the party requesting removal THE CONCLUSION OF THE ADMINISTRATIVE PROCEEDINGS has waived the right to request removal to FILING IN the district court;

(c)(b)  more than 30 days have elapsed since service of notice of hearing under 49-2-505, unless the commission DEPARTMENT fails to schedule a hearing to be held within 90 days of service of notice of hearing; or

(d)(c)  the party requesting removal CONCLUSION OF THE ADMINISTRATIVE PROCEEDINGS has unsuccessfully attempted through court litigation to prevent the commission staff DEPARTMENT from investigating the complaint.

(3)  The commission DEPARTMENT staff may shall dismiss a complaint filed under 49-2-501 this chapter and allow the complainant to may file a discrimination action in district court if:

(a)  the commission OR THE DEPARTMENT staff determines that the commission lacks jurisdiction over the complaint;

(b)  the complainant fails to cooperate in the staff's investigation of the complaint or fails to keep the commission DEPARTMENT advised of changes of address; or

(c)  the commission DEPARTMENT staff determines that the allegations of the complaint are not supported by substantial A PREPONDERANCE OF THE evidence; OR

(D) THE DEPARTMENT DETERMINES THAT THE COMMISSION OR THE DEPARTMENT WILL NOT OR CANNOT HOLD A HEARING WITHIN 12 MONTHS AFTER THE FILING OF THE COMPLAINT.

(4)  A decision of the commission DEPARTMENT staff to dismiss a complaint brought under this chapter or to refuse to permit removal to the district court is final unless a party seeks review by filing objections within 14 days after the decision is served on him the party. The commission shall review the decision in informal proceedings under 2-4-604, except that 2-4-604(5) applies only to review of a refusal to permit removal. A party may ask the district court to review a decision of the commission made under this part SECTION. The review must be de novo.

(5)  Within 90 days after receipt of a notice of dismissal under subsection (1) OR (3) or an order under subsection (4) of affirmance of a dismissal, whichever occurs later, or of a letter issued under subsection (1), the complainant may petition COMMENCE A CIVIL ACTION IN the district court in the district in which the alleged violation occurred for appropriate relief. Except as provided in 49-2-510, if the claimant COMPLAINANT fails to petition COMMENCE A CIVIL ACTION IN the district court within 90 days after receipt of the letter, notice, or order issued by the commission staff OR THE DEPARTMENT, the claim shall be is barred.

(6)  If the district court finds, in an action under this section, that a person, institution, entity, or agency against whom or which a complaint was filed has engaged in the unlawful discriminatory practice alleged in the complaint, the court may provide the same relief as described in 49-2-506 for a commission order. In addition, the court may in its discretion allow the prevailing party reasonable attorney fees.

(7)  The provisions of this chapter establish the exclusive remedy for acts constituting an alleged violation of CHAPTER 3 OR this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. No other Another A claim or request for relief based upon such the acts may not be entertained by a district court other than by the procedures specified in this chapter."

Section 14.  Section 49-2-510, MCA, is amended to read:

"49-2-510.   Procedures and remedies for enforcement of housing discrimination laws. (1) A complaint may be filed with the commission DEPARTMENT by or on behalf of OR ON BEHALF OF a person PARTY claiming to be aggrieved by any discriminatory practice prohibited by 49-2-305. The complaint must be in written form, VERIFIED BY THE AGGRIEVED PARTY, and must be filed with the commission DEPARTMENT within 1 year 90 180 days after the alleged unlawful discriminatory practice occurred or was discovered.

(2)  (a) Except as provided in subsection (2)(b), if If the DEPARTMENT, ON APPEAL, OR THE commission, in a hearing under 49-2-505, finds that a person, institution, entity, or agency PARTY against whom a complaint was filed under this part has engaged in a discriminatory practice in violation of 49-2-305, the DEPARTMENT OR THE commission may, in addition to the remedies and injunctive and other equitable relief provided by 49-2-506, to vindicate the public interest, TO VINDICATE THE PUBLIC INTEREST, assess a civil penalty pursuant to the statutes governing the award of punitive damages in this state:

(i)(a)  in an amount not exceeding $10,000 if the respondent has not been found adjudged in any prior judicial or formal administrative proceeding to have committed any prior discriminatory housing practice in violation of 49-2-305; and

(ii)(b) in an amount not exceeding $25,000 if the respondent has been found adjudged in any prior judicial or formal administrative proceedings to have committed one other or more similar discriminatory housing practice practices in repeated violation of a subsection of 49-2-305 during the 5-year period ending on the date of the filing of the written complaint; and.

(iii) in an amount not exceeding $50,000 if the respondent has been found to have committed two or more discriminatory housing practices in violation of 49-2-305 during the 7-year period ending on the date of the filing of the complaint.

(b)  If the acts constituting the discriminatory housing practice that is the object of the complaint are committed by the same natural person who has been previously found to have committed acts constituting a discriminatory housing practice, the civil penalties provided in subsections (2)(a)(ii) and (2)(a)(iii) may be imposed without regard to the period of time within which any prior discriminatory housing practice occurred.

(3)  In the case of an order with respect to a discriminatory housing practice in violation of 49-2-305 that occurred in the course of a business subject to licensing or regulation by a governmental agency, the commission shall, no later than 30 days after the date of the issuance of the order or, if the order is judicially reviewed, no later than 30 days after the order is in substance affirmed:

(a)  send copies of the findings of fact, the conclusions of law, and the order to the licensing or regulatory agency; and

(b)  recommend to the licensing or regulatory agency appropriate disciplinary action, including, where appropriate, the suspension or revocation of the license of the respondent.

(4)  (a) When a complaint is filed under 49-2-305, a complainant, or a respondent, or aggrieved person on whose behalf the complaint was filed may elect to have the claims decided in a civil action in lieu of a hearing under 49-2-505. The election must be made no later than 20 days after receipt by the electing person of service of notice of certification for hearing under 49-2-505. The person making the election shall give notice to the commission DEPARTMENT and to all other complainants and OTHER respondents to whom the complaint relates named in the complaint. Within 30 days after the election is made, the commission complainant, THE COMMISSIONER, OR THE AGGRIEVED PARTY shall MAY commence a civil action in an appropriate district court on behalf of the aggrieved person if the commission staff has made a finding that the allegations of the complaint are supported by substantial evidence. If the commission staff has made a finding that the allegations of the complaint are not supported by substantial evidence, the complainant may commence a civil action in an appropriate district court in accordance with subsection (5). An aggrieved person with respect to the issues to be determined in a civil action brought by the commission staff may intervene in the action ON BEHALF OF THE AGGRIEVED PARTY IF THE DEPARTMENT HAS MADE A FINDING THAT THE ALLEGATIONS OF THE COMPLAINT ARE SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE. IF THE DEPARTMENT HAS MADE A FINDING THAT THE ALLEGATIONS OF THE COMPLAINT ARE NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, THE COMPLAINANT MAY COMMENCE A CIVIL ACTION IN AN APPROPRIATE DISTRICT COURT IN ACCORDANCE WITH SUBSECTION (5). AN AGGRIEVED PARTY WITH RESPECT TO THE ISSUES TO BE DETERMINED IN A CIVIL ACTION BROUGHT BY THE DEPARTMENT MAY INTERVENE IN THE ACTION.

(b)  The commission DEPARTMENT may not continue administrative proceedings on a complaint after an election is made in accordance with subsection (4)(a).

(5)  (a) An aggrieved person PARTY may commence a civil action in an appropriate district court within 2 years after an alleged unlawful discriminatory practice under 49-2-305 occurred or was discovered or within 2 years of the breach of a conciliation agreement entered into under 49-2-504 in a case alleging a violation of 49-2-305. The computation of the 2-year period does not include any time during which an administrative proceeding under this title was pending with respect to a complaint alleging a violation of 49-2-305. The tolling of the time limit for commencing a civil action does not apply to actions arising from breach of a conciliation agreement.

(b)  An aggrieved person PARTY may commence a civil action under this subsection for a violation of 49-2-305 whether or not a complaint has been filed under 49-2-501 and without regard to the status of a complaint filed with the commission DEPARTMENT except as provided in subsection (5)(d). If the commission DEPARTMENT has obtained a conciliation agreement with the consent of the aggrieved person PARTY, an action may not be filed under this subsection by the aggrieved person PARTY regarding the alleged violation of 49-2-305 that forms the basis for the complaint except for the purpose of enforcing the terms of the agreement.

(c)  The commission OR THE DEPARTMENT may not continue administrative proceedings on a complaint after the beginning of a trial FILING of a civil action commenced by the aggrieved party under this subsection (5) seeking relief with respect to the same alleged violation of 49-2-305.

(d)  An aggrieved person PARTY may not commence a civil action under this subsection (5) with respect to an alleged violation of 49-2-305 if the commission OR THE DEPARTMENT has commenced a hearing on the record under 49-2-505 regarding the same complaint.

(e)  Upon application by a person alleging a violation of 49-2-305 in a civil action under this subsection (5) or by a person against whom the violation is alleged, the court may:

(i)  appoint an attorney for the applicant and the respondent; or

(ii) authorize the commencement or continuation of a civil action without the payment of fees, costs, or security if, in the opinion of the court, the applicant party is financially unable to bear the costs of the civil action. As in all actions brought in forma pauperis, the burden of showing lack of financial ability rests with the party claiming financial hardship.

(f)  Upon timely application, the commission may intervene in a civil action brought under this subsection (5) if the commission certifies that the case is of general public importance. Upon intervention, the commission may obtain the same relief that would be available to the commission under subsection (7).

(6)  If the court finds that a person, institution, entity, or agency PARTY against whom a complaint was filed under this section has been adjudicated in a civil or formal administrative proceeding to have engaged in a similar discriminatory practice in violation of a subsection of 49-2-305, the court may, in addition to the other remedies and injunctive and other equitable relief provided under 49-2-506 consistent with the provisions of subsection (2), award punitive additional PUNITIVE damages. The court may also award attorney fees to the substantively prevailing party.

(7)  (a) Whenever the commission has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice in violation of 49-2-305 or that a group of persons has been discriminated against in violation of 49-2-305 and the denial raises an issue of general public importance, the commission may commence a civil action in an appropriate district court. The commission may also commence a civil action in any appropriate district court for relief regarding breach of a conciliation agreement in a case regarding an alleged violation of 49-2-305 if the commission is a party to the agreement.

(b)  The commission may file a civil action under this subsection (7) within 18 months after the alleged breach of the conciliation agreement or unlawful discriminatory practice occurred or was discovered.

(c)  In a civil action under this subsection (7), the court may, in addition to the remedies provided under 49-2-506, assess a civil penalty against the respondent:

(i)  in an amount not exceeding $50,000 for a first violation; and

(ii) in an amount not exceeding $100,000 for any subsequent violation.

(d)  Upon timely application, a person may intervene in a civil action under this subsection (7) that involves an alleged violation of 49-2-305 with respect to which the intervenor is an aggrieved person.

(8)(7) (A) Civil All EXCEPT AS PROVIDED IN SUBSECTION (7)(B), ALL civil and administrative penalties and other revenue generated under this section must be paid to the state treasurer to be deposited in an account in the state special revenue fund to be used by the commission for housing discrimination enforcement part must be deposited into the state's general fund.

(B) DAMAGES OR PENALTIES, WHETHER MONETARY OR OTHERWISE, MAY NOT INURE TO AN ORGANIZATION UNLESS THE ORGANIZATION IS AN AGGRIEVED PARTY. THIS SECTION DOES NOT AFFECT ANY AMOUNT OWED TO AN AGGRIEVED PARTY."

Section 14.  Section 49-2-601, MCA, is amended to read:

"49-2-601.   Criminal penalty. A (1) Except as provided in subsection (2), a person, who or an educational institution, or financial institution, either public or private, or a governmental entity or agency who or which that willfully engages in an unlawful discriminatory practice prohibited by this chapter or willfully resists, prevents, impedes, or interferes with the commission, the department, or any of its authorized representatives in the performance of a duty under this chapter or who or which willfully violates an order of the commission or willfully violates this chapter in any other manner is guilty of a misdemeanor and is punishable by a fine of not more than $500 or by imprisonment for not more than 6 months, or both.

(2) A person may not be subject to any penalty under this section if the person acts in a manner consistent with the protection of the person's rights to avoid criminal or civil self-incrimination."

NEW SECTION. SECTION 15. ENFORCEMENT.  (1) WHEN A POSSIBLE VIOLATION OF THIS CHAPTER COMES TO THE ATTENTION OF THE DEPARTMENT, THE COMMISSIONER MAY INITIATE A COMPLAINT ON BEHALF OF THE DEPARTMENT. THE COMPLAINT MUST BE SIGNED BY THE COMMISSIONER.

(2) A PERSON IS NOT SUBJECT TO PENALTIES UNDER THIS CHAPTER IF COMPLIANCE WITH THE PROVISIONS OF THIS CHAPTER WOULD CAUSE THE PERSON TO VIOLATE THE PROVISIONS OF ANOTHER STATE LAW.

NEW SECTION. SECTION 16. ENFORCEMENT AND REMEDIES.  THE PROCEDURES SET FORTH IN CHAPTER 2, PART 5, APPLY TO COMPLAINTS ALLEGING A VIOLATION OF THIS CHAPTER.

NEW SECTION. SECTION 17. STAFF TRANSFER.  THE STAFF OF THE COMMISSION IS TRANSFERRED TO THE DEPARTMENT. THE STAFF IS UNDER THE DIRECTION AND CONTROL OF THE COMMISSIONER OF LABOR AND INDUSTRY. THE STAFF SHALL PERFORM FUNCTIONS AS DIRECTED AND IN ACCORDANCE WITH THE EXPRESS AND IMPLIED PURPOSES OF [THIS ACT]. THE TRANSFER OF STAFF IS SUBJECT TO 2-15-131 THROUGH 2-15-137.

NEW SECTION. SECTION 18. REPEALER. SECTIONS 49-2-201, 49-2-502, 49-3-304, 49-3-305, 49-3-306, 49-3-307, 49-3-308, 49-3-309, 49-3-310, 49-3-311, AND 49-3-312, MCA, ARE REPEALED.

NEW SECTION. Section 19.  Codification instruction INSTRUCTIONS. (1) [Section SECTIONS 1 AND 15] is ARE intended to be codified as an integral part of Title 49, chapter 2, part 2, and the provisions of Title 49, chapter 2, part 2, apply to [section SECTIONS 1 AND 15].

(2) [SECTION 16] IS INTENDED TO BE CODIFIED AS AN INTEGRAL PART OF TITLE 49, CHAPTER 3, PART 3, AND THE PROVISIONS OF TITLE 49, CHAPTER 3, PART 3, APPLY TO [SECTION 16].

NEW SECTION. Section 20.  Retroactive applicability APPLICABILITY -- SAVING CLAUSE. The provisions of 49-2-305(3)(b) apply retroactively, within the meaning of 1-2-109, to any proceeding pending on or commenced on or after [the effective date of this act], regardless of when the printing or publication occurred, if the proceeding was commenced by the commission for human rights staff in the absence of a complaint by an aggrieved person. [THIS ACT] DOES NOT AFFECT ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING PENDING OR COMMENCED PRIOR TO [THE EFFECTIVE DATE OF THIS ACT]. [THIS ACT] APPLIES TO COMPLAINTS OR PROCEEDINGS FILED ON OR AFTER [THE EFFECTIVE DATE OF THIS ACT].

NEW SECTION. Section 21.  Effective date. [This act] is effective on passage and approval JULY 1, 1997.

-END-