Restoration of Rights & Record Relief
I. Loss & restoration of civil/firearms rights
A. Vote & public office
Under Mont. Code Ann. § 46-18-801(1), 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.” 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.”).
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
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). 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). 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.
II. Pardon policy & practice
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.
The Board has seven members. Mont. Code Ann. § 2-15-2302(2). All are appointed by the Governor, and serve effectively as volunteers. One member must be an enrolled member of a state-recognized or federally recognized Indian tribe located within the boundaries of the state of Montana. Id. All decisions are by majority vote. § 2-15-2303(8). The Board may appoint two or three-member hearing panels. § 46-23-103(4). 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. History of the Board (including merging of pardon and parole function in 1955) at https://bopp.mt.gov/History.
There are no eligibility requirements for executive pardon, except that 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).
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, pardon is not grounds for expungement.
See generally Mont. Code Ann. §§ 46-23-301 to 46-23-307, 46-23-315, 46-23-316 (governing executive clemency process), and Mont. Admin. Rules 20-25-901 to 20-25-904. The Board may hold a hearing in meritorious cases where all sides are heard and a record made, though it is required to hold hearings only in capital cases. Mont. Admin. R. 20-25-902(1). 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, 46-23-304. Favorable recommendations must be forwarded to the governor Id. § 46-23-307. If a majority of the Board recommends denial in a non-capital case, the case may not be sent to the governor. Id. § 46-23-301(3).
F. Report to legislature
Mont. Code Ann. § 46-23-316. 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.
G. Frequency of grants
Pardons in Montana are infrequently recommended by the Board and even less frequently granted. Governor Steve Bullock has granted only three full pardons since taking office in January 2013 while denying 81 (through the Board has recommended several others). Board statistics can be found at the Board’s website at https://bopp.mt.gov/Statistics, and gubernatorial grants are at https://leg.mt.gov/content/Committees/Interim/2017-2018/Law-and-Justice/Committee-Topics/ljic-agency-oversight-executive-clemency-report-1984-2008.pdf. The change in the Board’s authority in 2015 does not appear to have changed this ratio. 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. The governor’s report to the legislature, describing each case in which pardon granted, is available from the Board. Source: Montana Board of Pardons and Parole.
Board of Pardons and Parole
1002 Hollenbeck Road
Deer Lodge, MT 59722
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.
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. 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 https://dojmt.gov/enforcement/conviction-expungement-process/ (last accessed Sept. 17, 2021).
Prosecutors must attempt to notify the victim of the offense (if one exists) and inform the victim of any hearing dates scheduled. All parties who appear, including victims or representatives from the prosecutor’s office, must be given an opportunity to respond to the petition. If a misdemeanor is expunged, the record is destroyed, and only a person’s fingerprints remain in official files.
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, Mont. Code Ann. § 46-16-130, and for the establishment of a drug court program. Mont. Code Ann. § 46-1-1101.
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. 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 reason basis on which” the petition does not satisfy the criteria.
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
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).
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.
See also § 37-1-201.4
While this statute does not itself apply to license revocation proceedings, Erickson v. State ex rel. Bd. of Med. Exam’rs, 938 P.2d 625, 629 (Mont. 1997), its provisions may be incorporated by reference into particular licensing statutes, Ulrich v. State ex rel. Bd. of Funeral Serv., 961 P.2d 126, 131-132 (Mont. 1998). In Ulrich, the Montana Supreme Court upheld the finding of a hearing examiner that a conviction for forgery and theft did not “relate to the public health, welfare, and safety as it applies to the occupation” of mortician, and that the applicant in that case was “sufficiently rehabilitated so as to warrant the public trust.” 961 P.2d at 134. Completion of probation or parole supervision without any subsequent criminal conviction “is evidence of rehabilitation.” Mont. Code Ann § 37-1-205.
A licensing agency must give reasons for denying a license on grounds related to a felony conviction. Mont. Code Ann § 37-1-204 (“When a licensing agency prohibits an applicant from being licensed wholly or partially on the basis of a criminal conviction, the agency shall state explicitly in writing the reasons for the decision.”).
- According to the 1996 survey of the Office of the Pardon Attorney, the “Montana Attorney General advised that under a similarly worded previous version of Mont. Code Ann § 46-18-801 the right to sit on a jury was restored only by a pardon.” Civil Disabilities of Convicted Felons: A State-by-State Survey (Office of the Pardon Attorney, Dep’t of Justice, 1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
- This change in the law was prompted by the Board’s refusal to change its position in a case involving claims of innocence. See “Bill to restrict Montana Parole Board’s power over clemency gets wide support,” http://missoulian.com/news/state-and-regional/bill-to-restrict-montana-parole-board-s-power-over-clemency/article_e8c03e6e-25e9-55a0-a61c-111229c42897.html. There has also been some more general concern among legislators that the Board’s parsimonious policy on recommending clemency might be frustrating the governor’s exercise of the power. See John S. Adams, Lawmakers Considering Changes to Pardon and Parole Board, Great Falls Tribune, August 2, 2014, http://www.greatfallstribune.com/story/news/politics/2014/08/03/lawmakers-considering-changes-pardon-parole-board/13536729/.
- It could be argued that this statute brings non-conviction court records within the definition of “confidential criminal justice information” in Mont. Code Ann. § 44-5-303(1), so that their dissemination would be “restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure.” Id. at (3)(d). On the other hand, this would appear to be a rather strained reading of a law that by its terms applies only to fingerprints and photographs. Note: The Michigan courts have a similar lack of specific authority to seal or expunge non-conviction court records. See Michigan profile.
It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful occupation, while licensure must be conferred with prudence to protect the interests of the public. The legislature finds that the process of licensure will be strengthened by instituting an effective mechanism for obtaining accurate public information regarding a license applicant’s criminal background.