Montana
Restoration of Rights & Record Relief

Last updated: November 21, 2024

I. Loss & restoration of civil/firearms rights

A. Vote & public office

A conviction does not result in loss of civil rights except as provided in the Montana Constitution, or as specifically enumerated by the sentencing judge “as a necessary condition of the sentence directed toward the objectives of rehabilitation and the protection of society.” Mont. Code Ann. § 46-18-801(1). A convicted person is ineligible to vote only if “serving a sentence for a felony in a penal institution;” the right to vote is regained upon release from incarceration. Mont. Const. art. IV, § 2. A felony offender may not hold public office until final discharge from state supervision. Id. art. IV, § 4. Full rights are automatically restored “by termination of state supervision for any offense against the state.” Mont. Const. art. II, § 28. Accord Mont. Code Ann. § 46-18-801(2) (“Except as provided in the Montana constitution, if a person has been deprived of a civil or constitutional right by reason of conviction for an offense and the person’s sentence has expired or the person has been pardoned, the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.”).

B. Jury

The state constitution does not provide for disqualification from jury service, but a statute does. See Mont. Code Ann. § 3-15-303(2) (person who has been “convicted of malfeasance in office or any felony or other high crime” is not competent to sit as juror). Presumably this disability is removed upon completion of sentence. See §46-18-801(2).¹

C. Firearms

Firearms rights are lost under state law only where the conviction involves use of a dangerous weapon. Mont. Code Ann. § 45-8-313(1). In such cases, the sentencing court shall impose lifetime supervision as part of sentence imposed, “for the purpose of restricting the person’s right to purchase and possess firearms.” § 45-8-314(1). Because Montana offenders regain civil rights when supervision ends, federal law firearms disabilities are generally coincident with state law firearms disabilities by virtue of 18 U.S.C. § 921(a)(21). In addition, a county sheriff may deny a concealed weapon permit only if the person has been convicted of a crime punishable by a term of imprisonment of more than one year; a violent, sex or drug offense; or a specified gun or substance abuse offenses. §§ 45-8-321(1)(c), (d), and (f). However, unless supervision is also terminated in these cases, civil rights would not be restored and the federal disability would remain.

An individual who has lost his firearms rights may “apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms,” and “shall show good cause for the possession of each firearm sought to be purchased and possessed.” § 45-8-314(2)(a). Notice must be given by the petitioner to the county attorney and county sheriff, and either may file a written objection. §§ 45-8-314(c), (d). If an objection is filed, a hearing is held within 60 days. Id.

II. Policy pardon & practice

A. Authority

The pardon power is vested in the governor, but the legislature may control the process. Mont. Const. art. VI, § 12. Prior to March 2015, the governor could issue a pardon only upon the favorable recommendation of the Board of Pardons and Parole, except in capital cases, though he was not bound to accept each Board favorable recommendation. Mont. Code Ann. §§ 46-23-104(1), 46-23-301(3). On March 20, 2015, Governor Steve Bullock signed HB 43 converting the Board’s role in clemency cases to an advisory one. While the governor is still required by statute to premise action on a Board recommendation, after a hearing, he may grant clemency even if the recommendation is negative. See § 46-23-104(4). The 2015 change in the Board’s role now requires the governor to deny all applications that he does not grant. § 46-23-301(4). He may also direct the Board to conduct an investigation when it has declined to do so. § 46-23-301(3)(b).² The governor must report to the legislature each pardon and the reasons for it. § 46-23-316.

B. Administration

The Montana Legislature substantially restructured the Board in 2017 under SB64. The Board has five full-time members. Mont. Code Ann. § 2-15-2305(1). All are appointed by the Governor for 6-year terms. Id. The Board may appoint two or three-member hearing panels. § 46-23-103(4). All parole and executive clemency decisions are by majority vote of the hearing panel. § 2-15-2305(8). A majority of the Board constitutes a quorum, and all decisions are by majority vote. Rules are set forth at Mont. Admin. R. 20-25-901 to 904, posted at https://bopp.mt.gov/AdminRules. The history of the Board (including merging of pardon and parole functions in 1955) is available on the Board of Pardons and Parole website.

C. Eligibility

There are no eligibility requirements for executive pardon, except that the sentence must be discharged. Mont. Admin. R. 20-25-901A(1). Federal and out-of-state offenders are ineligible. Misdemeanants may apply. A person whose application has been denied may not reapply unless they submit “evidence of substantial change in circumstances since the last application.” Mont. Admin. R. 20-25-901(3).

D. Effect

Executive pardon removes “all legal consequences” of conviction, Mont. Code Ann. § 46-23-301(1)(b), including certain licensing bars, § 37-60-303 (private investigators and patrol officers). See also Mont. Admin. R. 20-25-901A(1) (“Pardon is a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction.”). However, a pardon is not grounds for expungement.

E. Process

The executive clemency process is governed generally by Mont. Code Ann. §§ 46-23-301 to 46-23-307, 46-23-315, 46-23-316, and Mont. Admin. Rules 20-25-901 to 20-25-904. The Board provides an Application for Pardon form on its website, which includes instructions for filing. After filing, a hearing panel conducts a preliminary review to consider whether to hold a hearing and if so decides, sets the date and notifies the applicant, judge, prosecutor, and sheriff in the county the conviction occurred. Mont. Admin. R. 20-25-902. The Board is only required to hold hearings only in capital cases. Id. 902(5)(1). However, under 2015 changes to the system, if the Board declines to investigate or hold a hearing, the governor may direct it to do so. § 46-23-301(3)(b). The hearing must be publicized at least once a week for two weeks. Mont. Code Ann. §§ 46-23-303, Mont. Admin. R. 20-25-902(4)(c). Hearings may be held via video or telephone conference, except in death penalty cases. Mont. Admin. R. 20-25-903(1)(a).

After the preliminary review or hearing, the Board transmits its recommendation to grant or deny, along with all documentation, to the Governor within 30 days. § 46-23-307, Mont. Admin. R. 20-25-904(1). The Board also gives notice to the applicant of its recommendation and underlying reasons and posts its recommendation on the board’s website. Id.

F. Report to legislature

The governor shall report to the legislature each case of remission of fine or forfeiture, respite, commutation, or pardon granted since the previous report, stating the name of the convict, the crime of which the convict was convicted, the sentence and its date, the date of remission, commutation, pardon, or respite, with the reason for granting the same, and the objection, if any, of any of the members of the board made to the action. Mont. Code Ann. § 46-23-316.

G. Frequency of grants

Pardons in Montana are infrequently recommended by the Board and even less frequently granted. Governor Steve Bullock granted only three full pardons during his first term in office, and there is no indication he granted any additional pardons during his second term. The change in the Board’s authority in 2015 does not appear to have had any impact on a policy that since 2018 has resulted in no full pardons. Brian Schweitzer granted 16 pardons in his eight years in office (2005-2013) for crimes ranging from issuing fraudulent checks to aggravated assault. Nine of those pardons came during his first term in office. A record of gubernatorial pardon grants between 1984 and 2018 can be found here.

H. Contact

Board of Pardons and Parole
1002 Hollenbeck Road
Deer Lodge, MT 59722
Phone: 406-846-1404
Fax:406.846.3512
CORBOPP@mt.gov

III. Expungement, sealing & other record relief

A. Misdemeanor expungement

The Misdemeanor Expungement Clarification Act of 2019, or HB 543, repealed the earlier authority for expungement of misdemeanor convictions, Mont. Code Ann. § 46-18-1101, and replaced it with a revised Chapter 11, effective October 1, 2019. See § 46-18-1102, et seq. The new law retains most of § 46-18-1101’s original language, including the provision limiting a person to one expungement order during their lifetime, but allowing it for any number of misdemeanor offenses. § 46-18-1104.

Expungement is “presumed” for all but certain specified serious offenses (involving violent and sexual offenses, and driving while impaired), unless “the interests of public safety demand otherwise” — as long as: (1) the petitioner currently is not charged with an offense, and (2) either he has not committed an offense within five years of completing his sentence, or the petitioner is seeking opportunities for military service that are otherwise closed to him. Mont. Code Ann. § 46-18-1107. House Bill 47, signed into law on Feb 26, 2019, added sexual assault under 45-5-502 to the list of offenses for which expungement may not be presumed. For crimes for which expungement is not presumed, expungement may be granted after a hearing, in which the court must consider the petitioner’s age “at the time the offense was committed, the length of time between the offense and the request, the rehabilitation of the petitioner, [ ] the likelihood that the person will reoffend,” and “any . . . factor the court considers relevant.” Id. § 46-18-1108.

The eligibility period for cases in which expungement is “presumed” runs from completion of sentence “including payment of any financial obligations or successful completion of court-ordered treatment.” § 46-18-1107(1). While the provision specifying offenses for which expungement will not be “presumed” does not mention payment of court debt, the Montana Department of Justice interprets both of these statutes to require payment of LFOs to qualify for expungement. See a summary of the Conviction Expungement Process available on the Montana Attorney General website (last accessed Sept. 10, 2024).

Process

A petition to expunge can be filed in any Montana district court, and may include any eligible case on that petition. § 46-18-1104. The petitioner must serve a copy of the expungement petition to every prosecutor, and prosecutors must attempt to notify the victim of the offense (if one exists) and inform the victim of any hearing dates scheduled. § 46-18-1106. All parties who appear, including victims or representatives from the prosecutor’s office, must be given an opportunity to respond to the petition. § 46-18-1109.

Effect

If an order is granted, it directs the arresting agency, prosecutor, and clerk of the court to “permanently seal” all records of the arrest and detention, and any court proceedings. § 46-18-1110(a). The petitioner must send the order to those agencies, in addition to the department of justice, along with its Expungement Form and fingerprint card (FD-258). Id. at (b). The department of justice shall “expunge all records of arrest, investigation, detention, and court proceedings” addressed by the order. Id. at (c)

B. Deferred adjudication

For first felony offenses and misdemeanors, a court may defer or suspend imposition of sentence from one to three years during which the offender will be on probation. Mont. Code Ann. § 46-18-201 et seq. Following termination of the relevant time period, § 46-18-204 authorizes the court to permit the defendant to withdraw a plea of guilty or nolo contendere or to strike the verdict of guilty from the record and order that the charge or charges against the defendant be dismissed. Records in the case, presumably including court records, shall be “confidential” and accessible only by court order:

After the charge is dismissed, all records and data relating to the charge are confidential criminal justice information, as defined in 44-5-103, and public access to the information may be obtained only by district court order upon good cause shown.

Id. Section 44-5-103 defines “criminal justice information” as “information about individuals collected by criminal justice agencies,” which is defined to include courts as well as law enforcement and other executive agencies. See § 44-5-103(4)(a), (7)(a). State v. Tomaskie, 157 P.3d 691, 693-694 (Mont. 2007). Sealing is unavailable if a mandatory sentence applies, except in certain situations. See § 46-18-222. (Prior to 1989, the requirement was that records be “expunged,” which was understood to require that all documentation and physical or automated entries concerning the expunged offense be physically destroyed or obliterated. 42 Mont. Op. Att’y Gen. 384 (1988). See also Smith v. County of Missoula, 992 P.2d 834 (1999)(record of dismissed charges became confidential criminal justice information, rather than expunged material, and thus sheriff was authorized to review his file in determining whether to grant or deny his application for concealed weapon permit). If the sentence is dismissed, then it should not be considered in determining whether the defendant is a persistent felony offender).

Pretrial diversion and drug court: Montana law also provides for pre-charge diversion by prosecutors, where charges are dismissed upon compliance with the terms of the agreement, Mont. Code Ann. § 46-16-130, and for the establishment of a drug court program. Mont. Code Ann. § 46-1-1102.

C. Marijuana expungement, redesignation, & resentencing

Effective Jan. 1, 2021, a person serving a sentence–or who has completed a sentence–for a marijuana act legalized or punishable by a lesser sentence under the 2020 marijuana ballot initiatives (CI-118; I-190)(no more than one ounce for personal use) may petition the sentencing court for an expungement, resentencing, and/or redesignation, and is presumptively eligible for relief. See Mont. Code Ann. § 16-12-113(1), (2). As amended in 2021, this provision now makes clear that an expungement under this section does not preclude petitioning for expungement under §§ 46-18-1102. Id. at (12). The 2021 amendments also lessened the burden on prosecutors opposing expungement: they no longer must prove by clear and convincing evidence that a petitioner does not satisfy the criteria but must merely “prove the court with a reasonable basis on which” the petition does not satisfy the criteria. Id. at (2). Hearings for expungement petitions can be heard in any venue stipulated by the petitioner and county attorney. § 16-12-116. Forms are available on the Montana Supreme Court’s website.

D. Non-conviction records

Another authority for limiting public access to non-conviction records, other than records relating to deferred imposition of sentence discussed above, is the 2019 law authorizing expungement of fingerprints and photographs in non-conviction cases after July 1, 2017. See Mont. Code Ann. § 44-5-202(8)(as amended in 2019).

If an individual is released without the filing of charges, if the charges did not result in a conviction, or if a conviction is later invalidated, the court having jurisdiction in the criminal action shall report the disposition to the state repository as required in 44-5-213(2) within 14 business days. Photographs and fingerprints taken of the individual must be returned by the state repository to the originating agency, which shall expunge all copies. A criminal justice agency may not maintain any copies of the individual’s fingerprints or photographs related to that charge or invalidated conviction.

Where this statute applies, the state repository follows a policy of expunging all associated records. See also https://dojmt.gov/enforcement/criminal-record-expungement-and-sealing (“After July 1, 2017 CRISS will automatically remove all non-conviction arrest data per MCA 44-5-202 and no Record Removal Form is required”).

There is no comparable authority to seal non-conviction court records, and § 44-5-202(8) does not appear to limit public access to court records. However, there is no centralized court records system in the state so each county court must be searched.³

In 2021, Montana enacted HB 92, providing that upon entry of a certificate of innocence in wrongful conviction proceedings, the court “shall order the associated convictions and arrest records expunged and purged from all applicable systems, including both electronic and hard copy systems” and “the claimant must be treated as not having been arrested or convicted of the crime or crimes to which the certificate of innocence applies.

E. Juvenile records

Most youth court records are publicly available until the juvenile’s 18th birthday (or at the termination of jurisdiction if it extends beyond age 18), at which point they must be automatically sealed, along with law enforcement and agency records. Mont. Code Ann. §§ 41-5-215(1), 41-5-216(1). When a record is sealed, all agencies other than the Department of Corrections must destroy records in their possession. § 41-5-216(2). Additionally, § 41-5-216 “does not prohibit the destruction of records with the consent of the youth court judge or county attorney after 10 years from the date of sealing.” § 41-5-216(3). After records are sealed, they are not open to inspection except, upon order of the youth court, for good cause, including when a youth commits a new offense. § 41-5-216(5). A juvenile may move the court to limit availability of court records prior to turning age 18. Privacy Rules § 4.60.

IV. Criminal record in employment & licensing

A. Employment

Montana has no law regulating consideration of criminal record in public or private employment. However, the Montana Human Rights Commission takes the position that pre-employment inquiries regarding arrests raise suspicion of intent to unlawfully discriminate unless related to bona fide lawful affirmative action plan or inquiry is required for record-keeping purposes. Mont. Admin. R. 24.9.1406(2)(h).

B. Licensing

Under a 1975 statute, a criminal conviction may not operate as an “automatic bar” to licensure for any occupation in the state of Montana, but may be grounds for denial or revocation of a license if 1) the conviction “relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought,” and 2) the licensing agency finds, after investigation, that the applicant has not been “sufficiently rehabilitated.” Mont. Code Ann. § 37-1-203:

Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.

MontanaRestoration of Rights & Record Relief