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April 7, 2023

A state lawmaker convicted of driving under the influence of alcohol has introduced legislation this session that would help people in his position clear their records and regain their driving privileges. 

Great Falls Republican Rep. Scot Kerns, a Lutheran pastor and former Air Force officer, was convicted of first-offense DUI, obstructing a peace officer and unlawful possession of an open alcoholic beverage container in a motor vehicle in 2022, according to Great Falls Municipal Court documents obtained by Capitolized and first reported here. 

The convictions stem from a September 2021 incident in which police contacted Kerns while he was asleep in his car in a grocery store parking lot around 12:30 a.m., according to an affidavit of probable cause. A witness had observed Kerns operating his vehicle with beer bottles inside, running over a curb and coming to a stop in the Smith’s Food and Drug parking lot in Great Falls, where police found him sleeping in his car with an open beer bottle in arm’s reach, according to the affidavit. 

(In an interview Friday with Capitolized, Kerns presented a different version of events, claiming he was out celebrating his birthday, realized he was too drunk to drive, got into his parked car and went straight to sleep). 

“I was sleeping prior to that,” he said. “I’m not sure where the curbs come from.” 

Kerns’ license was suspended but has since been restored, and he said he completed an “extensive treatment program dealing with alcohol and my military [post-traumatic stress disorder].” He appealed his case to Montana’s 8th Judicial District Court last September, filing a motion to stay execution of his sentence — fines and about a week’s worth of house arrest — until the appeal plays out, according to city court clerk Allison McMaster. 

A little over a year after his arrest, the 2023 legislative session began. Kerns, now in his second term as a lawmaker, proposed a suite of bills related to DUIs, traffic violations and suspended licenses. One of those proposals is House Bill 704, which would create a presumption in law that a person who is convicted of a first-offense DUI, who was inside their car but not “in a gear that allows self-propulsion,” and who had not been involved in a collision could get their record expunged. 

“I’m not saying that shouldn’t be a DUI, yet this person was trying to do the right thing by not driving or putting anyone from the public at risk,” Kerns said during a March 31 Senate committee hearing on the bill. “In this case, this person would be able to seek expungement. DUI convictions have major ramifications and linger with those consequences long after the driver’s license suspension. Fines, fees, high insurance premiums, court-mandated community service are just but a start.” 

Kerns did not disclose to the committee that “this person” could be himself.  

The Senate Judiciary Committee tabled the bill Thursday. 

Kerns also proposed House Bill 315 to remove the minimum penalty for driving with a suspended or revoked license, and House Bill 365, which would allow a person with a suspended license to receive a “provisional, restricted or probationary license” if they complete a court-ordered driver rehabilitation or improvement program. HB 315 never made it out of its first committee, while HB 365 passed a preliminary vote in the Senate Friday. Kerns said he’s disappointed that all three bills haven’t made it through the process.

Kerns told Capitolized Friday that based on a discussion with his lawyer, he doesn’t think the facts of his case would allow him to seek expungement under HB 704 should it come off the table and pass, but he wasn’t sure exactly why. 

“I’m not trying to do this for me,” Kerns said. “Obviously it’s been multiple years. This doesn’t necessarily affect me.”

Kerns said he brought the proposals because his own prosecution opened his eyes to the difficulty that people in his position face.

“I’m really concerned with my next door neighbor who deals with a similar situation,” Kerns said. “For various reasons, people end up feeling too drunk to drive. This bill [HB 704] allows for a process of expungement of a non-driving DUI. Punishment for DUIs is very very important. I have voted to increase a lot of them. But we need to recognize that events need to be considered in their totality, and a lifetime punishment is excessive if a person was trying to do the right thing in the first place and if it’s a first-time offense.” 

Kerns’ case as described in court filings more or less aligns with his recollection, aside from his dispute about whether he drove his car before deciding to sleep in it. He said he went out to celebrate his birthday, realized he shouldn’t drive, got into his parked car, didn’t put the keys in the ignition, and went to sleep. 

When an officer arrived, they observed Kerns sleeping in his car with beer bottles inside, according to the affidavit. The affidavit says the officer knocked on the window, woke Kerns up and opened his door when he refused to do so himself. 

Kerns then refused a field-sobriety test, and the officer informed him he was being detained and asked him to exit the vehicle, according to court records. The report then describes a sort of scuffle, the cause of the obstruction charge. 

The officer pulled Kerns from the car and attempted to cuff him, but Kerns resisted, the affidavit says. In attempting to pin Kerns to the vehicle, the officer “felt something dislodge in my right shoulder.” 

“They were trying to push me against the vehicle, and they put their shoulder into me and hurt their shoulder,” Kerns said. “I’m a bigger guy, you know.” 

A second officer — the one who filled out the probable cause statement — arrived later, detected the odor of alcohol “emanating from Kerns’ person,” and asked him to take a field sobriety test and a breathalyzer test, the statement says. 

Kerns refused both, something he now says he regrets, as he had been asleep “for hours,” he told Capitolized. 

Kerns said the idea for two of his bills came from Great Falls Municipal Court Judge Steven Bolstad, who presided over Kerns’ case. 

Bolstad, reached by phone Friday, acknowledged suggesting to Kerns something that could create a path forward for habitual traffic offenders, but said he never suggested anything about DUI offenses.

In 2017, the Legislature passed a law allowing a person to petition a district court to expunge records of misdemeanor offenses upon completion of their sentence. Presumably, that’s why Kerns would not be eligible to get his conviction expunged — since it’s under appeal, his sentence hasn’t yet been carried out. 

Kerns said there’s no consistent way to specifically seek expungement for a misdemeanor DUI, “even after years and years have transpired, restitution has been made, and treatment has been done.”

He said he didn’t disclose his own conviction during hearings on the three bills because, “truthfully, I think that the bills should be evaluated on their own merit.

“I felt like if I say, ‘Hey, this has happened to me, this is what I’ve gone through,’ that it may be like it’s personal or something like that,” he added. 

Conflict-of-interest standards for Montana legislators are suggestive at best. Statute says that “a legislator concerned with the possibility of a conflict may briefly present the facts to the [Ethics Committee],” and the committee “shall advise the legislator as to whether the legislator should disclose the interest prior to voting on the issue.” 

Even after that, a legislator can still vote on the issue after making the disclosure “subject to legislative rule.”

“Disclosures are important when we’re financially benefiting from something, so the public is made aware, but virtually any bill has some kind of element to it,” Kerns said. “For example, every landlord [in the Legislature] has something. Every bill in [the House Taxation Committee], as I’m a taxpayer, is some kind of thing, but I think we all realize that hopefully the bill will be looked at in the whole.”

Kerns said the incident has given him a fresh perspective on the criminal justice system as a whole, not just people with DUIs. 

“Being around the process, talking with our judges and talking with our lawyers, and dealing with our law enforcement, allows for a better and more sympathetic understanding of all that goes into our criminal justice system,” he said. “On both sides of any issue, there are generally a lot of people trying to do the right thing, for the right reasons.” 

Arren Kimbel-Sannit

Bill Report

House Bill 721, which would prohibit the safest and most common procedure for second-trimester, pre-viability abortions except in medical emergencies, passed the Senate Friday largely along party lines. The bill, sponsored by House Speaker Matt Regier, R-Kalispell, would effectively ban pregnancy terminations after 12 weeks based on a broad definition of “dismemberment abortion,” a nonmedical term that abortion rights advocates said during committee hearings is misleading and stigmatizing. Regier cast his bill as a moral restriction on a specific procedure, an argument that found traction with Republicans in the House. During the final floor vote in the Senate, three Republicans joined Democrats in voting against the bill. It will now proceed to Gov. Greg Gianforte’s desk.

House Bill 361, sponsored by Rep. Brandon Ler, R-Savage, passed its final vote on the Senate floor Friday 30-20. The bill would prohibit public schools from disciplining students who refer to their transgender peers by names or genders they no longer use, and has become a major battleground in the Legislature’s debate over the rights of LGBTQ students. Four Republicans — Sens. Dan Salomon of RonanRuss Tempel of ChesterTerry Vermeire of Anaconda and Jeff Welborn of Dillon — joined the entire Senate Democratic caucus in opposing the bill.

The Viz

As we reported in Tuesday’s edition of Capitolized, nearly all the GOP-sponsored constitutional amendments working their way through the Legislature appear to be falling short of the near-unanimous Republican support they need to proceed to next year’s ballot. But since votes for constitutional amendment proposals are tallied differently than other bills — and the amendment proposals have so far received votes in only one of Montana’s two legislative chambers — we thought it was worth explaining how we arrived at our count.

Amendments to Montana’s 1972 state Constitution can originate either in the Legislature or through a signature-gathering drive, with the former path requiring support from 100 of the Legislature’s 150 representatives and senators before proposals can advance to a statewide vote.

This year’s Republican supermajority comprises 68 representatives and 34 senators, or 102 combined votes, enough in theory for a united GOP to forward amendments to the ballot without any support from Democrats. That count, however, leaves Republicans with a mere two-vote margin, and as it turns out the party hasn’t voted in lockstep on the eight amendment proposals that advanced to votes on the House or Senate floor before the April 4 deadline.

Shown here are the votes the five House-side and three Senate-side amendment proposals received in floor votes in their initial chamber, along with projected outcomes if upcoming votes in the other chamber fall along party lines.

One amendment proposal, an effort by Sen. Kenneth Bogner, R-Miles City, to enshrine a mental health trust fund in the state Constitution, drew bipartisan support in the Senate and appears positioned to potentially clear the House. Otherwise, though, the Republican amendment wave appears likely to crest short of the 2024 ballot.

Another two amendments, one establishing a right to carry concealed firearms and another forbidding Montana’s redistricting commission from considering political data as it redraws political maps, could come within one vote of proceeding to voters (one of the Senate “yes” votes on the latter came from Democratic Sen. Edie McClafferty, who later said she mis-voted). A third amendment, establishing a constitutional right to hunt, trap and fish, could come within two votes of advancing.

— Eric Dietrich & Arren Kimbel-Sannit

Heard in the Halls

“I’m trying to find fair and balanced and equal and that kind of thing, and I know Rep. Buttrey, that’s all he ever wants to do is be fair and balanced, because that’s the kind of guy he is, but maybe not on this one.”

Sen. Mark Noland, R-Bigfork, asking questions in a committee hearing Friday about Great Falls GOP Rep. Ed Buttrey’House Bill 867, which would expand the operating hours of state liquor stores and allow retailers to buy liquor from state stores on credit as long as they pay within seven days. 

By the #s

Number of bills that have been introduced in the 68th Montana Legislature as of Friday afternoon — the highest number of proposals Montana lawmakers have debated in Helena in half a century. The last time Montana representatives and senators tangled with a greater number of bills was in 1973, when the Legislature was busy incorporating the newly adopted Montana Constitution into statute. 

“We’re a few hundred [bills] behind what it was like to establish a whole new state government, essentially,” Legislative Services Executive Director Jerry Howe told Capitolized.

Howe added that the 1,644 tally doesn’t include the nearly 3,000 bill drafts that were abandoned for one reason or another before being formally introduced. 

The bill tally isn’t expected to grow much during the final weeks of the session: At this point only new study resolutions can be added to the legislative rolls, per the Legislature’s calendar.

All told, Legislative Services staffers have drafted an average of 70 bills and 100 amendments each. When the Legislature wraps up in about a month, Howe said, he’s hoping he and his staff can demonstrate that “we left all of our energy on the field.”

“We’re just working our guts out so lawmakers from both parties can put their best foot forward,” he said.

—Amanda Eggert

On Background

Justice Reinvestment InitiativeFor more on the suite of bills passed as part of Montana’s 2017 Justice Reinvestment Initiative — which included misdemeanor expungement provisions — see this primer from the Montana Department of Corrections. 

Proposals to amend Constitution struggle to garner needed support: It’s been a tough week for constitutional amendment referrals, as we described in this story. (MTFP)