2. Ordinance 1360 - 2nd Reading - Municipal InfractionsCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758
TO: Mayor and City Council
FROM: Rich Hickel, Assistant City Attorney
SUBJECT: Decriminalization of Certain Offenses
MEETING DATE: September 5, 2000
BACKGROUND:
This is the second reading of Ordinances 1360 and 1361.
Currently, violations of City Ordinances are classified as
criminal offenses. The 1999 State legislature passed a bill
permitting cities to decriminalize violations of city ordinances by
designating said violations as "infractions", § 7-1-4124, MCA. The
legislature also established a procedure for processing municipal
infractions, H 7-1-4150-7-1-4152, copies attached.
There are a variety of Ordinance violations which could be
properly classified as "infractions". Parking, zoning, and building
violations come to mind as "crimes" which could more effectively be
prosecuted as infractions.
Converting violations of City Ordinances from "crimes" to
"infractions" has several advantages. The burden of proof changes
from "beyond a reasonable doubt" to "clear and convincing
evidence". Classifying an offense as an "infraction" entitles the
alleged offender to a judge trial only, eliminating the right to a
jury trial. Finally, decriminalization reduces "crimes" to a civil
matter similar to a small claims action, and a disposition may be
accomplished without City Attorney involvement.
Ordinance No. 1360 defines Municipal Infractions and
prescribes enforcement procedures and penalties. Ordinance No. 1361
alters the Penalty language of §1-9, Kalispell City Code and
provides that a offense not designated as an "infraction" will be
prosecuted as a crime. Once Ordinance Nos. 1360 and 1361 are
passed, this office will revise a series of City Ordinances
designating violations of those Ordinances as "infractions".
Kalispell is the first City in the State, that we know of, to
utilize the legislation. It is anticipated that such a conversion
will impact Municipal Court efficiency and reduce workload in the
City Attorney's Office.
The Parking Commission does not oppose the reclassification.
However, this office recommends that the filing fee for civil
infractions be waived for at least parking violations in order to
reduce the fiscal impact on the Parking Commission.
A motion and vote adopting the second reading of Ordinance No.
1360 and Ordinance No. 1361 is in order.
AN ORDINANCE AUTHORIZING THE CLASSIFICATION OF CITY OFFENSES AS
,-MUNICIPAL INFRACTIONS, PRESCRIBING ENFOiLCkiln NT PROCEDURES AND
PENALTIES, ALLOWING FOR APPEALS, AND ESTABLISHING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
MONTANA, AS FOLLOWS:
A. "MUNICIPAL INFRACTION": Any violation of the
Kalispell City Code, as amended, which has been
specifically declared to be a Municipal Infraction
under provisions of the Kalispell City Code.
B. 'OFFICER": Any employee I
enforce provisions of th4;9
amended.
:#r official authorized to
Kalispell City Code, as
C. 'REPEAT VIOLATION": A recurring violation of the
same section of the Kalispell City Code. Each day
that a violation occurs or is permitted to exist
constitutes a separate and distinct infraction.
1-13. Municipal Infractions. Penalties.
A. A municipal infraction is a civil offense and for a
proven violation, a civil penalty may be imposed.
B. For a first violation, a civil penalty of not more
than three hundred dollars ($300.00) shall be
imposed.
C. For each repeat violation, a civil penalty not to
exceed five hundred dollars ($500.00) shall be
imposed.
D. Seeking a civil penalty as authorized in this
Article does not preclude the City from seeking
alternative relief from the court in the same
action.
1-14. Civil Citations. Service and Requirements.
A. Any officer who is authorized by the City to enforce
a municipal code or regulation may issue a civil
citation to a person who commits a municipal
infraction.
The citation may be served on the alleged violator
by any one of the following methods:
1. Personal Service; or,
certified mail addressed to the defendant at
the defendant's last known mailing address,
return receipt requested; or,
3. By publication, in the manner described in Rule
4D(5) of the Montana Rules of Civil Procedure.
C. A copy of the citation must be retained by the
issuing officer and one copy be sent to or filed
with the clerk of the Kalispell Municipal Court.
D. The citation shall serve as notification that a
municipal infraction has been committed and shall
contain the following information:
1. The name and address of the defendant;
2. The name or description of the infraction
attested to by the officer issuing the
citation;
3. The location and time of the infraction;
4. The amount of the civil penalty to be assessed
or the alternative relief sought, or both;
S. The manner, location and time in which the
penalty may be paid;
6. The time and place of court appearance; and,
7. The penalty for failure to appear in court.
4= �
A. If the total amount of civil penalties does not
exceed three thousand dollars ($3, 000 . 00) the
matter shall be tried before the Municipal Court
Judge in the same manner as a small claim. If the
total amount of civil penalties assessed exceeds
three thousand dollars ($3,000.00), the matter must
be tried before a District Court Judge.
B. The City has the burden of proof that the municipal
infraction occurred and that the defendant committed
the infraction. The proof must be by clear and
convincing evidence.
C. The court shall ensure that the defendant has
received a copy of the charges and that the
defendant understands the charges. The def endant
may question all witnesses who appear for the
municipality and produce evidence or witnesses on
the defendant's behalf.
D. The defendant may be represented by counsel of the
defendant's own choosing and at the defendant's own
expense.
E. The defendant may answer by admitting or denying the
infraction.
F. If a municipal infraction is proven, the court shall
enter judgment against the defendant. If the
infraction is not proven, the court shall dismiss
the charges.
G. If the person named in the citation is shown to have
been served with the civil citation in the proper
manner and, without good cause, fails to appear in
response to the citation, judgment shall be entered
against the person by the court.
A. A person against whom judgment is entered shall pay
court costs and fees as in small claims court under
Title 25, Chapter 35 of the Montana Code Annotated
in addition to the penalties imposed by the Court.
If the action is dismissed by the court, the City is
liable for the court costs and court fees.
B. All penalties and forfeitures collected by the court
for municipal infractions shall be remitted to the
City in the same manner as fines and forfeitures
collected for criminal offenses.
C. In addition to the imposition of civil penalties
authorized by law against a defendant, the City may
seek alternative relief from the court in the same
action. Alternative relief may consist of any of
the following:
1. Direct that payment of the civil penalty be
suspended or deferred under conditions imposed by
the court; or,
2. Order the defendant to abate or cease the
violation; or,
3. Authorize the City to abate or correct the
violation; or,
4. Order the City's costs for abatement or
correction of the violation be entered as a
judgment against the defendant or assessed
against the property where the violation
occurred, or both.
(a) The amount of costs imposed by Municipal
Court shall not exceed the jurisdictional
amount for a money judgment in a civil action
under section 3-11-103, Montana Code Annotated.
(b) If the City seeks abatement or correction
costs in excess of the jurisdictional limit
provided in paragraph 4(a) above, the matter
shall be referred to District Court for hearing
and entry of an appropriate order. The
procedure for hearing in the District Court
shall be the same procedure as that for a small
claims appealed under section 25-35-803,
Montana Code Annotated.
D. A defendant who willfully violates the terms of an
order imposed by the court is guilty of contempt.
EEMMMJEEM�
A The defendant or the City may file a motion for a
new trial or may appeal the decision to District
Court.
B. A factual determination may by the trial court,
supported by substantial evidence as shown on the
record, is binding for purposes of appeal relating
to the violation at issue, but is not admissible or
binding as to any future violations for the same or
similar ordinance provision by the same defendant.
ci-18. issuance of Civil Citations Not Grounds for
Furlther Legal Action.
Except for willful or wanton misconduct on the part of the
City, the issuance of a civil citation for a municipal
infraction or the ensuing court proceedings do not provide
an action for false arrest, false imprisonment, or
malicious prosecution.
An action brought by the City for an environmental
violation does not preclude, and is in addition to, any
other enforcement action that may be brought under state
law.
SECTION II. This Ordinance shall be effective thirty (30)
days from and after the date of its final
passage and approval.
PASSED AND APPROVED', BY THE CITY COUNCIL A-\TD SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 5TH DAY OF SEPTEMBER, 2000.
Wm. E. Soharski
Mayor
Attest:
Theresa White
City Clerk