The Montana state Capitol in Helena on the opening day of the 2023 legislative session on Jan. 2, 2023. (Photo by Blair Miller, Daily Montanan)
The House Appropriations Committee on Friday tabled a bill that would have required the state to pay attorney’s fees for citizens who are acquitted in cases where they were found to be using justified force as a defense. Lawmakers were concerned by a fiscal note which said the bill would have “unknown” impacts on the general fund.
Under the bill, if the person charged with a forcible felony successfully argues they were justified in using force as a self-defense in order to be acquitted or have their charges dropped, they would be allowed to have their out-of-pocket costs, attorney’s fees, and other costs tied to that charge paid for by the state.
The bill concerned someone charged with forcible felony – one that involves the use or threat of physical force of violence against another person.
With little discussion, the committee voted unanimously Friday morning to table House Bill 629, sponsored by Rep. Brandon Ler, R-Savage, during executive action.
Originally, the costs and fees would have been paid for by the county prosecutor’s office that filed the charge. But the bill was amended in committee to require the state to pay the costs out of the general fund.
The defendant would have had to pay for costs and fees of any other charges they faced that were not forcible felonies, but were tied to the same crime, under the bill.
Rep. Ed Stafman, D-Bozeman, during the bill’s second reading on the House floor, said it could lead to defense attorneys hiring teams of investigators and expert witnesses to fight the specific felony in order for their client to have a better chance of acquittal.
The bill passed second reading in the House on March 1 in a 65-35 vote and was sent to House Appropriations because a fiscal note had been requested.
The fiscal note said the bill would have an “unknown” impact to the general fund, which the DOJ said it could not calculate “due to the indeterminable number of cases and associated costs.”
“The fiscal impact to the general fund could be significant if the state is held responsible for attorney fees and costs, which could include the costs of expert witnesses,” the note said.
Proponent of the bill Gary Marbut, the president of the Montana Shooting Sports Association, was the lone person to testify at its Appropriations hearing.
He said he had testified in several affirmative defense cases during the past 25 years and knew of around four in Montana during that period which may fit the description. He said some people had been “financially ruined” by what he called “careless or frivolous prosecutions.”
Rep. Jane Gillette, R-Bozeman, said she hoped someone from the DOJ would be there to answer questions, but since they were not, she said the fiscal note was confusing. Ler said the number was a “moving target” and that it would be hard to pin down the actual number of cases the state might be on the hook for.
Rep. Bill Mercer. R-Billings, asked Marbut several questions about how many cases he thought the bill might apply to. He also said he was not sure, but reiterated that if a person is acquitted of the felony charge, the costs “shouldn’t be on them.”
Rep. Jim Hamilton, D-Bozeman, asked Ler several times what problem the bill was aiming to solve if these cases only came up every few years, and why it should be the legislature’s prerogative to pass the bill.
“I believe if the situation arises and the legislature deems it necessary, we do that on a regular basis. Maybe not regular, but every now and again for sure,” Ler said.
He said he would leave the decision in the committee’s “capable” hands. The committee voted Friday to table the measure.
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