An Act To Authorize Vacating the Convictions of Members of the Houlton Band of Maliseet Indians Convicted under Prior Laws Governing the Possession and Use of Marijuana
Maine Legislature, Session 128, LD 0486
Committee: Judiciary
Sponsors: BEAR
Amends: 17-A MRSA §111

Legislative Document
No. 486
H.P. 349
House of Representatives, February 9, 2017
An Act To Authorize Vacating the Convictions of Members of the 
Houlton Band of Maliseet Indians Convicted under Prior Laws 
Governing the Possession and Use of Marijuana
(EMERGENCY)
Reference to the Committee on Judiciary suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative BEAR of the Houlton Band of Maliseet Indians.
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, the Marijuana Legalization Act decriminalizes and removes civil 
penalties related to the personal use of marijuana effective January 30, 2017; and 
Whereas, it is necessary that this Act take effect as soon as possible to enable 
members of the Houlton Band of Maliseet Indians who have been criminally and civilly 
charged for conduct that would have been legal under the Marijuana Legalization Act to 
clear their criminal records; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA c. 313 is enacted to read: 
CHAPTER 313 
POST-JUDGMENT MOTION TO VACATE CERTAIN MARIJUANA 
CONVICTIONS OF MEMBERS OF THE HOULTON BAND OF MALISEET 
INDIANS 
§2401.  Legislative findings and intent 
The Legislature finds that Indian tribes and their members have unique status under 
the United States Constitution, including under Article I, Section 8; the Constitution of 
Maine, including under Article X, Section 5; and various treaties affecting Indian tribes in 
this State, including the Treaty of Watertown of 1776.  The Legislature further finds that 
Maine laws and rules reflect this unique status, including provisions relating to child 
welfare, tribal representation in the Legislature, mortgage insurance for Indian housing 
and hunting and fishing rights and privileges.  The Legislature further finds that these 
provisions of Maine law, including the provisions of this chapter, treat members of a 
federally recognized Indian tribe in this State in a manner consistent with the unique 
status that Indian tribes possess under the United States Constitution. 
The Legislature further finds that members of the Houlton Band of Maliseet Indians 
consider marijuana to be a medicine with important uses and benefits.  Members of the 
Houlton Band of Maliseet Indians have suffered unnecessary and unacceptable stigma 
from prosecutions for and convictions of possessing marijuana for personal use, which 
were unfairly based on non-Indian social norms regarding the personal cultivation and 
personal use of marijuana. 
It is the intent of the Legislature to remedy these past injustices by establishing a 
process for members of the Houlton Band of Maliseet Indians to petition the court to 
vacate all past criminal convictions or civil violation adjudications for conduct that would 
have been legal had that conduct been committed after enactment of the Marijuana 
Legalization Act. 
§2402.  Post-judgment motion for vacation of certain marijuana convictions 
1.  Motion.  A member of the Houlton Band of Maliseet Indians who has been 
convicted of a criminal offense involving marijuana or who has been adjudicated as 
having committed a civil violation involving marijuana who reasonably believes that the 
conduct underlying the conviction or adjudication would have been legal under the 
provisions of the Marijuana Legalization Act may file a written motion in the underlying 
criminal or civil violation proceeding seeking vacation of the conviction or adjudication 
and correction of the court records and related criminal justice agency records. 
2.  Time for filing.   A motion under this section must be filed within 3 years of the 
effective date of this section. 
§2403.  Motion and hearing; process 
1.  Filing motion.  A motion filed pursuant to section 2402 must be filed in the 
underlying criminal or civil violation proceeding.  The appropriate chief judge or justice 
shall specially assign the motion.  The judge or justice to whom the motion is assigned 
shall determine upon whom and how service of the motion is to be made and enter an 
order in this regard. 
2.  Counsel.  A person who files a motion pursuant to section 2402 has the right to 
employ counsel but is not entitled to assignment of counsel at state expense. 
3.  Representation of the State.  The prosecutorial office that represented the State 
in the underlying criminal or civil violation proceeding shall represent the State for 
purposes of this chapter.  If the underlying criminal or civil violation proceeding was 
disposed of without the appearance of an attorney for the State, the office of the District 
Attorney in whose district the crime or civil violation was committed shall represent the 
State for purposes of this chapter.  On a case-by-case basis, a different prosecutorial 
office may represent the State on agreement between the 2 prosecutorial offices. 
4.  Request for hearing.  The court may decide a motion filed pursuant to section 
2402 without hearing, unless a hearing is requested by the person filing the motion or by 
the State within 14 days of service of the motion.  If either party requests a hearing, the 
court shall review the pleadings and any other material of record and determine whether 
an evidentiary hearing is required. 
5.  Evidence.  The Maine Rules of Evidence do not apply to proceedings under this 
chapter.  The court shall take judicial notice of the record in the underlying criminal or 
civil violation proceeding. 
6.  Burden of proof.  A person who files a motion pursuant to section 2402 bears the 
burden of demonstrating a right to relief under this chapter by a preponderance of the 
evidence. 
§2404.  Relief 
1.  Decision.  The court shall issue a written decision on a motion filed pursuant to 
section 2402.  A copy of the court's written order must be provided to the person who 
filed the motion and to the prosecutorial office that represented the State.  The court must 
grant the motion and vacate the criminal conviction or civil violation adjudication if the 
court finds: 
A.  That the person who filed the motion was a member of the Houlton Band of 
Maliseet Indians at the time of the conduct; and 
B.  That the conduct for which the person who filed the motion was convicted or 
adjudicated would have been legal under the provisions of the Marijuana Legalization 
Act if that conduct had been committed after the effective date of that Act. 
2.  Correction of record.  If the court grants a motion filed pursuant to section 2402, 
it shall determine what court records and related criminal justice records require 
correction and shall order the corrections to be made in the court records and the records 
of each of the appropriate criminal justice agencies. 
3.  Other relief.  If the court grants a motion filed pursuant to section 2402, it shall 
grant all other appropriate relief, including release from incarceration, discharge from 
probation and reimbursement of fines, surcharges and assessments paid by the person 
who filed the motion. 
§2405.  Appeal 
A final judgment entered under section 2404 may be reviewed by the Supreme 
Judicial Court. 
1.  Appeal by person filing motion.  A person aggrieved by the final judgment under 
section 2404 may not appeal as of right.  The time for taking the appeal and the manner 
and any conditions for the taking of the appeal are as the Supreme Judicial Court provides 
by rule. 
2.  Appeal by State.  If the State is aggrieved by the final judgment under section 
2404, it may appeal as of right, and a certificate of approval by the Attorney General is 
not required.  The time for taking the appeal and the manner and any conditions for the 
taking of the appeal are as the Supreme Judicial Court provides by rule. 
Sec. 2.  17-A MRSA §111 is enacted to read: 
§111.  Conduct legal under the Marijuana Legalization Act 
If a member of the Houlton Band of Maliseet Indians is charged with a crime or civil 
violation for conduct that occurred prior to the effective date of the Marijuana 
Legalization Act, it is a defense to the prosecution that the conduct would have been legal 
under the provisions of the Marijuana Legalization Act had the conduct occurred after the 
effective date of that Act. 
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill establishes a process for members of the Houlton Band of Maliseet Indians 
to seek vacation of a criminal conviction or civil violation adjudication if the conduct that 
formed the basis of the conviction or adjudication would have been legal had that conduct 
been committed after enactment of the Marijuana Legalization Act.  The bill also 
establishes that, if a member of the Houlton Band of Maliseet Indians is charged with a 
civil violation or criminal offense for conduct that occurred prior to the effective date of 
the Marijuana Legalization Act, it is a defense to the prosecution that the conduct would 
have been legal had the conduct occurred after the effective date of the Marijuana 
Legalization Act.