Dorwart v. Caraway

No. 01-190

iZUSSCl.1. ED\YIRL> DORWART and HARRY DORWRRT~

<a ; """X

Plaintiffs, hypcllants and Cross-Respondents, . 6; i! t"P

*.>.:.

v.

PAUL CARAIVAY, individually, and as a dep~ity the Still~vater

in County

Sberirl's Office; DANNY 2 \ ~ individually, alid as a deputy in the

~ ~ ,

Stillwater C o ~ ~ nSheriffs Office; CLIFF BROPHY; individually, and

ty

as Sheriff of Stillxvater County, Montana; atd COUhTY OF STILLLVAfLR,

State of Morrtaria,

Defendants, Respondents and Cross-Appellants

APPEAL PROM: District Court of the Twenty-Second J~ldicial

District,

In and for the County of Stillwater,

The I-lonorablc Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Gary R Thomas, Tho~nas Office, P C., Red Lodge, Montana

For Respondents

Steven R. Milch, Crowley, Haughey, Hansoii, Toole & Dietrich, Billings, blontana

For Arnicus hlor~tana

Trial Lawyers Association:

t,a\vrence A. Andcrson. Attorney at Law, Great Falls, Montana

For tZmictis Montana Defense Trial Lawyers Association:

Stanley T. Kaicczyc, Mary K. Giddings, Browning, Kalecxyc, Berry & Hocen,

Helcna, 'Llontana

For Amicus BI!! of Rights Coniniittec:

.4ttorncy at La\\, Anaconda, k4ont.m

Wade Dal~ood,

Argued and Stlhniitted: March 19, 2002

Dccided: October 3 1, 2002

Justice Terry K.Trieweiier dciivered the Opinion of ihe Cout?.

!

I T'nis matter- was previously before the Court in i>ot.wilrr v. CIL11~111:(y, 1098 "VET 191,

290 Rlont. 196, 966 P.2d 1121 (Doiwat-t I). There; we held that the Plaintiffs' statc

constitutional rights to due process, privacy and the right to be free from unreasonable

searches and seizures bvere violated. We remanded to the District Court for the Tm-enty

Second Judicial District in Stillwater County for further consideration oftlte Plaintiffs' claims

for damages and attorney's fees caused by the violation of those rights. Both parties filed

motions for summary judgment. The District Court held that a private right of action is

available for the violation of the state constitutional rights to privacy and to be free from

unrcasonable searches and seizures and that damages are recoverable. IHov;erer, the Court

also held that the Defendants were entitled to immunity pursuant to 5 2-0-103(1): MCA, for

having reasonably relied on the previous law of Montana. Therefore, the District Court

granted summary judgment to the Defendants, dismissed the Plaintiffs' claims for damages

and denied Plaintiffs' claims for attorney's fees. Plaintiffs appeal the District Court's order

dismissing their complaint by summary judgment. Defendants cross-appeal the District

Court's conclusion that there exists in Montana a cause of action and claim for damages for

violatioil of state constitutional rights. \Ve affirm in part and reverse in part the order and

judgmciit of the District Court.

72 The issues on appeal are:

73 1. Does violation of rights guaranteed by the Montana Constitution give rise to a

cause of action for damages'?

2

Y4 2. if thc answer to the previous question i s in the affirn~ative, thc Ilefcndants hate

did

siaiutory immunity based oil ihc facts i n this case pursuant to 5 2-9-103(1), MC.-I'?

y5 3. If there is a cause of action for darnages caused by violation of tl3ose rights

guaranteed by the staie constitution; and if Defendants in this case were not immune pursuant

to 8 2-9-103(1), MCA, should this Court create qualified immunity analogous to federal

qualified immunity as applied in claims pursuant to 42 U.S.C. $ 1983, and, if so, were

Defendants in this case entitled to s~mmmary

judgment on that basis'?

76

1 4. Did the District Court err when it denied Plaintiffs' claim for an award of attorney's

fees?

FACTUAL BACKGROUND

57 Z

The following hcts are taken, in part, from our prior decision in i~orwurt and are,

in part, based on further discovery completed following remand by this Court to the District

Court.

18 The Plaintiff, Russell Dorwart, was named as a defendant in two separate Stillwater

County Justice Court actions. Default judgments were entered against him in both actions

and writs of execution were issued to enforce those judgments on March 12 and April 9,

1991, respectively.

On the evening of .April 1 I, 1991, while operating his motor vehicle, Russell Dorwan

was stopped by the Defendant, Deputy Sheriff Danny Ames, and served with the two writs

of execution. Ames also arrested Dorwart for driving under the influence of alcohol, seized

the pickup truck and transported Dorv.att to the Stillwater County Jail. After Dorwart was

3

incarcerated in the jail, either ilrnes or the Dei'endant: Dcpury Slreriff Paul Caraway, advised

Dorwart that the two of them were going no iris home to seize property pursuant to tlte wriis

of execution. They were adt~ised Dom-art that tlte only unlocked door was the back door

by

but that they should bc careful not to let his cat out when they entered his home. D o ~ ~ v a r t

also advised the deputies that his \n-allet and driver's license were on the dashboard of his

mother's car, which was parked in his driveway. Althotigh the deputies claim to have

interpreted Dorwart's remarks as permission to enter his home, they did not directly ask his

permission nor did he grant it. Caraway and Ames worked for the Defendant, Stillwater

County Sheriff Cliff Brophy.

710 Ames and Caraway proceeded to Doraart's residence, entered the house and the

garage, and seized various items of personal property pursuant to the writs of execution.

They also took Donuart's wallet from the dashboard of the ear.

71 1 In depositions taken, subsequent to remand, Caraway testified that he believed he had

authority to enter Donvart's house based on his conversation with Dorwart, his conversation

with Justice of the Peace, Marilyn Kober, and the w i t of execution that Kober issued.

However, he conceded that Kober's only order was the writ of execution she issued and all

he was otherwise told by her was that he should go to Donvart's house to seize his property.

He conceded that his conversation with Dorwart occurred while Dorm-artwas in jail and that

after he or Ames told Dorurart they were going to his house to seize property, he was simply

told to use the back door because the other doors tverc locked and to be careful that the cat

did not get out. Caraway realii.ed that his oral convcrsation with Kober was not by itself

4

sufficient to authorize entry into a home, he had no warrant to enter Dorivartk hhomc, and hc

agreed chat the writ o f execution did not specificaliy authorize him to cntcr Don*:art's

residence and search it.

712 Ames testified that he believed he was authorized to enter Dorwart's home pursuant

to the writs of execution and based on his conversation cvith Donvart. Howeyer, he also

ackno~vledged

that the writs did not specifically provide that he could enter the house and

that the only thing he was told by Dorwart was to use the back door and not let the cat out

after Donvart had been advised that the deputies were going to his house to seize property.

Both Caraway and Ames testified that upon entry into Dorwart's home, neither made any

effort to distinguish between excmpt and nonexempt property.

qi13 Dorwart's pickup truck, its contents and his wallet were returned to him several days

later. On April 18,19911Dorwart filed in Justice Court a Motion for Release of Property and

to Quash the Writs of Execution, supported by an Affidavit of Exeinption and other

affidavits, asserting that the personal property which Ames and Caraway had seized from his

house and garage was either exempt from execution or did not belong to him. On September

30, 19911. Justice Court ordered that all of the property s e i ~ e d

the from Dom~art's

house and

garage be retur~ied its rightful owners. Dorwart subsequently retriexd the property from

to

the jail.

PROCEDURAI, I-IISTORV

714 On April 5 , 199115,the Plaintiffs, Russell Dor\irai-tand Harry Dom-ai?, filed acvinplaint

in which Caraway, Ames, Broplly and the Co~lnty Stiliwater were named as defendants.

of

The Plaintiff Harry Dot-wart owned the home in v~hich

Russell resided.

'115 Plaintiffs alleged that Caraway and Amcs unlawfully entered Russell's residence

where they conducted an unlawful and unreasonable search and seizure of his property,

trespassed, invaded his privacy, wrongfully converted his property, and violated his right to

due process of lau. It alleged that Brophy and Stillwater County were vicariously liable for

the deputies' conduct and for grossly negligent supervision of the deputies.

716 The Plaintiffs' complaint sct forth claims for damages based on the Defendants'

alleged violations of Article 11, Sections 10 (right to privacy), 11 (right to be free from

unreasonable searches and seizures), and 17 (right to due process) of the Montana

damages pursuant to 42 U.S.C. $ 1983 for violation of their

Constitution. They also clain~ed

rights guaranteed by the Fourth and Fourteenth Aniendments to the United States

Constitut~onand alleged a right to damages for common lam1 trespass and con\ersIon.

Pla~ntiffs

cla~mthe) mere entitled to the recovery of attorney's fees as part of both their

federal and state causes of action. Dorwarts' complaint was subsequently amended to state

ciainis ibr declaratory judgment that Montana's post-execution statutcs \\.ere in violation of

state and federal rights to due process of law.

fi17 On August 7, 1005. the District Court entered its first order granting slrnimary

judgment. That order was the subject of our decision in Dot-imrt I. It concluded that

6

Montana's postjudgmcnt execution statutes did violate Kusseli Donvart's right to duc proccss

of la\. but that tile deputics had corninitred neither trespass nor conversion, nor had they

\ioiated Dorwart's constitutional rights to privacy or to be free from unreasonable searches

and seizures. Finally, the District Court held that although Dorwart's right to due process of

law had been violated, the deputies were entitled to qualified immunity pursuant to Hctrlow

v. Fitzger-ald (1982), 457 U.S. 800, 102 S.Ct. 2727,73 L.Ed.2d 396, andneither Brophy nor

Stillwater County were liable pursuant to 42 U.S.C. 1983. Dorwart's claims for attorney's

fees %,erealso denied.

718 In Dor~vurt we held that because Caraway and Ames did not have a search warrant,

I,

Dorwai-t did not consent to their entry of his home, and tl~ere

were no exigent circumstances

nor any other established exception to the search warrant requirement, the deputies' entry into

Donvart's home and seizt~re his property violated his right to be free froin unreasonable

of

searches and seizures pursuant to Article 11, Section I 1 of the Montana Constitution.

Ilorivart I, 7 27. We also specifically held that neither the writs of execution themselves nor

Montana's postjudgment execution statutes pursuant to which the writs were issued expressly

directed or autllorized the deputies to enter Dorwart's home to effectuate seizure of his

property. I>omart I, ( 7 33, 48 and 52.

1

1 9 We held that rhc District Court erred when it concluded that the deputies' entry into

Domart's home did not violate his right to privacy gtzarantced by Article II, Scction 10 of the

Montana Constitution, and held that bccausc the District Court had erroneously concluded

that [)orwart's right to privacy and to be free &om unreasonable searches and seizures had

7

r'or

not. becn violated, i t s consideritrioi?of i>orwari's ciai~ns rhosc violations tiad tcrl?:irrstted

prcmatureiy. i>orwnrr 1: /s;" 60-61. We, rilerefore. remanded for further proceedings to

consider those statc constitutional ciairns. D01,1~'0rt !i 61.

1.

722 0 e also held that because tlontana law in Title 25. Chapter 13. Part 6: ofthe Montana

W

Code Annotated provides that certain property is exempt from exec~~tion enforce a

to

judgn~ent,

Montana debtors have a property interest in those statutory exemptions protected

by the due process guarantees of the Montana Constitution found at Article 11, Section 17

(Dorwurt I. $75); and that Montana's post-execution statutes violated Dorwart's right to due

process because they did not provide h i ~ n

notice of the seizure of his property, of the

a\>aiiabiiity

ofstatutory exemptions from execution, ofwherc to locate additional information

about exeinptions, of the procedures by which to claim his exemptions, and because he was

not provided with a prompt hearing at which to claim his property exempt from execution.

Ilor-warr I, 7 103. Mowe~er,

after concluding that Dorwart's state constitutional right to due

process had been violated, we mistakenly omitted remanding to the District Court for ftirther

consideration of that claim.

1121 Finally, a majority of this Coutt concluded that at the time of ilrmes' and Caraway's

cntry into Donvurt's home to execute on his property, the law regarding his constitutional

rights to privacy, to be f'ree ftritm searches and scizurcs and to duc process as it interrelated

with the law regarding postjudgn~ent

execution, had not been clearly established. 'rl~creforc,

we affirmed the District Court's summary dismissal of Dorwart's claims for common law

trespass and conversion, for darnages pursuant to 42 1,r.S.C. $ 1983, and for attol-ney's fecs.

Dorwarf I, 77; 1 12, i 26,126 and 132.

722 In conclusion, we statcd:

Thus, we conclude that Doi~vart's arguments regarding entitlement to

attorney's fees on his claims under Article 11, Sections 10 and 11 of the

Montana Constitution must be remanded in co~ijunction with our remand of

those constitutional clairns for further proceedings.

123 However, because Donvart has at all times claimed violations of not just Article 11,

Sections 10 and 11, but also Article 11, Section 17, and because our prior opinion established

violations of all three sections to the Montana Constitution, our remand should properly have

included consideration of Dorwart's claim for violation of his right to due process guaranteed

by Article 11, Section 17.

Ti21 Following remand to the District Court, all parties again moved for summary

judgment. In support of the Defendants' motion, the Defendants contended that there is no

authority to support a private action for damages based on violations of the Montana

Constitution and that if a direct cause of action is authorired. Defendants are entitled to either

qualified immunity analogous to that which is provided for violations of federal civil rights,

or statutory immunity pursuant to 5 2-9-1 03(1); MC4. Dcfcndants co~itended Dowart

that

1s not entrtled to attorney's fees for the same reason that he was not entitled lo attorney's fees

for .r ~ o l a t ~ o n h ~ federal c~vil

of s rights.

q25 Plaintiffs contended that they are entiticd ro claim damages for vioiaiion of their state

constitutional rights based on the Restatement of Totts, the U.S. S~iprerne

Court's decision

Fed.

in Nivens v. Six U~i?f:nowti ,Vc'rrrcotics Agertrs jl971), 403 I1.S. 388, 9 SS.Ct.

l 1999, 29

L.Ed.2d 619, and based upon the English Common Law as interpreted in numerous other

states

126 in a thoughtfiil and comprehensive order and memorandum entered by the District

Court on November 17, 2000, the District Court concluded after consideration of various

authorities that plaintiffs in general are entitled to bring a claim for money damages based

on the violation of their state constitutional rights but that in this case, Defendants had acted

in reliance on the law as it existed at the time of their conduct and were, therefore, entitled

to statutory immunity pursuant to 5 2-9- 103(1), MCA. Because it held that Defendants were

entitled to immunity pursuant to statutory law, the Court did not extensively discuss the

common law concept of qualified immunity and did not determine whether it applied in this

case. Pursua~~t the general rule that prevailing parties in civil actions are not entitled to

to

attorney's fees absent a contractual agreement or expressed statutory authority and because

neither was found in thls case and no speclal circumstances bere found to ex~st,

attorney's

fees were denied.

'27 Both parties appeal. We affirm in part and reyerse in part the order and judgment of

the Listrict Court.

728 Our standard of rcvie-ir~ f a district court's order granting summary judgnicnt is dc

o

novo; we apply the same criteria pursuant to Rule 56, %l.R.Civ.P.,that controls the district

. -

court's decision. Clurkv. EagleSystems, Irrc. (1996), 279 Mont. 279,283,927 P.2d 995,997

(citations omitted). 1 party seeking summary judgment must establish the absence of any

4

gentline issue of inaterial fact which would allow the nonmoving party to recover an

entitlement to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Clark, 279 Mont. at 283,

927 P.2d at 997-98.

2 9 Here, in spite of additional discoverq subsequent to our remand, the material facts are

still undisputed and the issues on appeal relate solely to how the law applies to those fads.

We review a district court's conclusions of law to determine whether those conclusions are

correct. Rlbrigl?~ State, By and Tjzrolrgh State (1997), 281 Mont. 196,205,933 P.2d 815,

v.

821 (citation omitted).

DISCUSSION

ISSUE 1

730 Does violation of rights guaranteed by the Vontana Constitution give rise to a cause

of action for damages?

";I By 1998, twenty-one states had recognized an implied cause of action for state

constitutional violations. Three additional states had indicated that they would do so under

certain narrow circumstances. A private cause of action has bee11 recognized in a twenty-

fifth state by federal courts and four states have enacted statutes which authorize causes of

11

rights. Scvcrr siates have specificaliy rcjecicd stcrtie

action for violation of state constituttio~lal

constitutional causcs of action. See Gaii Donogilrie & lctnati~an1. Edeistcin. L i f i /!per

Brown: Tile F1ifltrlrr.eofSrirre (.7~jnsfilzrtioil(ri rlctiorts in Ckiv York, 42 N.Y.L. S i h . L. Rev.

Tort

447, 347 n.2 (1998j.' Furthenilore. the majority o f legal scholarship on the topic of state

constitutional tort actions has favored an expansive right of action. 42 N.Y.L. Sch. L. Rev.

at 450 n.12. The analytical framework for consideration of claims for violation of state

: Footnote two provides:

Prior to the New York Court of Appeals' decision in Brown, 19

states and Puerto Rico recognized an implied cause of action for state

constitutional violations prior to the Brown decision. The slates in which

such a cause of action has been recognized by the highest state court are

California, Illinois, Louisiana, %lularyla~~d,

Michigan, N c ~ v Jersey, New

Mexico, North Carolina, Pennsylvania, Utah, Vemoiit and West Virginia.

Four additional states: Arkansas, Maine, Massachusetts, and Nebraska,

have enacted statutes providing private causes of action for violation of

state constitutional rights under certain circumstances. Direct causes of

action based on the Florida and Wisconsin Constitutiorts have also bee11

recognized by certain lower courts of tl~ose states, but not by either state's

highest court. In addition, subseyue~it the court of appeals' decision in

to

Brown, the Connecticut Supre~ne Court rccognized a private right of

action for violatioils of certain Connecticut constitutional provisions,

resolving an issue which had previously been in dispute auiong the lower

courts in that state. See Binette v. Saho, No. SC-15537, at 3 (Conn.Mar.

10, 1998).

Seven statcs: Colorado, Georgia, Hawaii, Oregon, 'fennessee,

Texas, and Washington, have specifically rejected state constitutional

causcs of action. In addition, although the Alaska, New Hampshire, and

Ohio courts have never rccognized a private state constitutional right of

action. they have indicated that they would do so under certain narrow

circumstaiclces. Finally, a private right of action has been implied from the

Rhode Island Constitution, but only by federal courts. It should be further

noted that this list does not includc statcs which l~ave recognized rights of

action based upon constitutio~lal provisions requiring just compensation

for takings of private property for public use. See infra iiote 283 and

accompanying text (discussing the unique place ofjust compensation

clauses in constitutional tort jurisprudence).

constitutions varies from state to state. t-lowever, any discussion of a claim for \.iolation of

coitstitutional rights begins \tit11 ilivetzs,

4j32 in Riverrs, the pIaintiffcol11plaincd that federal narcotics agents entered his apa~-tmcnt,

arrested him, manaclcd him tn front of h ~ family, and threatened to arrest h ~ entire famlly.

s s

He was then taken to a federal courthouse where he mas interrogated. booked, and subjected

to a visual strip search. He filed a complaint for damages for his warrantless search and

arrest and for the agents' t~nreaso~table of force. That compla~nt a s dismissed by the

use u

district court. The dismissal was affirmed by the Second Circuit Court of Appeals.

However, the U.S. Suprente Court granted certiorari and reversed the dismissal. On appeal,

the defendant federal agents contended, as do the Defendants in this case, that Bivens'

exclusive remedy should be pursuant to state tort law. They contended that because he had

a state tort remedy, there mas no need for a cause of action to vindicate his constitutional

rights. The Supreme Court disagreed and distinguished comnlon law torts from the violation

of constitutional rights. In language repeatedly cited by state courts considering the same

issues, the Court stated:

Respondents seek to treat the relationship between a citizen and a federal agent

unconstitutionally exercising his authority as no different front the relationship

betlveen two private citizens. In so doing, they ignore the fact that power,

once granted, does not disappear like a magic gift when it is wrongfully used.

An agent acting-albeit unconstitutionally-in the name of the United States

possesses a far greater capacity for harm than an individual trespasser

exercising no authority other than his own. Accordingly, as our cases make

clear, the f7ourth Amendment operates as a limitation upon the exercise of

federal power regardless of whether the State in whose jurisdiction that power

is exercised would prohibit or penalize the identical act if engaged in by a

private citizen. It guarantees to citizens of the i!nited States the absolute right

ro be kee from unreasonable searches and seizures carried out by virtue of

federal authority. And 'where federally protected rights have been invaded,

it has been the ruic from the beginning that cour-ts will be alert to adjust their

remedies so as to grant the necessary reiief' [Citations omitted.]

qj33 The Court proceeded to make the follotiiing distinction betueen those intetests

protected by state laws regulating trespass and those protected by the constitutional right to

be free from unreasonable searches and seizures:

The interests protected by state laws regulating trespass and the invasion of

privacy, and those protected by the Fourth Amendment's guarantee against

unreasonable searches and seizures, may bc inconsistent or even hostile. Thus,

we may bar the door against an unwelcome private intruder, or call the police

if he persists in seeking enhance. The availability of such alternative ineans

for the protection of privacy may lead the State to restrict imposition of

liability for any consequent trespass. A private citizen, asserting no authority

other than his own, will not normally be liable in trespass if he demands, and

is granted, admission to another's house. But one who d e m a ~ ~ d s admission

under a claim of federal authority stands in a far different position. The mere

invocation of federal power by a federal law enforcement official will

normally render futile any attempt to resist an unlawful entry or anest by resort

to the local police; and a claim of authority to enter is likely to unlock the door

as well. 'In such eases there is no safety for the citizen, except in the

protection of the judicial tribunals, for rights which have been invaded by the

officers of the government, professing to act in its name. There remains to him

but the alternative of resistance, which may amount to crime.' [Citations

omitted.]

734 The Supreme Court held that wh~le Fourth Amendment dld not expressly provide

thc

for its enforcement by an award of money damages for its violation, "[h]istorically, damages

have been regarded as the ordinary remedy for an invasion of personal interests in liberty. . . .

jF]cdera? courts may use any available remedy to mahc good the wrong donc." Nivens, 1 0

.3

i,r.S. at 395-96,9 1 5.Ct. ax 2004 (ci'rations omitted),

735 The Supreme Court held that:

Having concluded that petitioner's complaint states a cause of action under the

Fourth Amendment, supra, at 2001-20041 we hold that petitioner is entitled to

recover money damages for any injuries he has suffered as a result of the

agents' violation of the Amendment.

Hivens, 403 U.S. at 397, 91 S.Ct. at 2005.

'36 Subsequently the Supreme Court has held that money damages can bc recovered for

violations of the Fifth Amendment's guarantee of due process and the Eighth Amend~ncnt's

prohibition against cruel and unusual punishment. See Davts v. I-'assrizan ( 1 9 7 9 , 4 4 2 C.S.

228, 99 S.Ct. 2264, 60 L.Ed.2d 846, and Cctrl.solz v. Green (1980). 446 U.S. 14, 100 S.Ct.

1468, 64 L,.Ed.2d 15, respectively.

7\37 The general princ~pleof Btvens and its progcny is set out clearly in Restatement

(Second) of Torts 5 874A (1979), which provides:

When a legislative provision protects a class of persons by proscribing or

requiring certain conduct but does not provide a civil remedy for the violation,

the court may, if it determines that the remedy is appropriate in furtherance of

the purpose of the legislation and needed to assure the effectiveness of the

provision, accord to an injured member of the class a right of action, using a

suitable existing tort action or a new cause of action analogous to an existing

tort action.

'138 Section 874z4,comment a, makes clear that the term "legislative provision" i~lcludes

a constitutional provision.

(fr39 in those states which have considered and permitted a clain~ damages for violation

r'or

of state eonst~tutional

r~ghis,

varlous analyt~cal

models h a w been employed. in Vermont,

t11c state supreme court used a tlivo-step inquit? by which it first considercd whether the

provisions at issue were self-executing and, if so, whether monetary damages should be

available as a remedy for a violation. It held that a general provision guaranteeing a right to

enjoy life was not self-executing but that the spec~fic

guarantee of right to free speech was

self-executing and after considering Rivetzs and the Restatement, held that it may be

appropriate to allow monetary damages for violation of constitutional rights where the

legislature has fashioned no other adequate remedial scheme. See Shields tv.Gerhilrt (Vt.

140 In PVidgeon v. Enster~z

Sliore Hosp. Center (Md. 1984), 479 A.2d 921, the Maryland

Court of '4ppeals considered whether the plaint~ff

could recover damages for the biolation

of his state r~ghts due process and to be free from unreasonable searches and seirures. The

to

court gape little constderation to the Vermont Supreme Court's tuo-part analysis but did

consider significant that state's constitutional provision for application of the common law

of England. It noted that:

Under the common law of England, where individual rights, such as those now

protected by Article 26 [to be free from unreasonable searches and seizures],

were preserved by a fundamental document (e.g., the MagnaCarta), aviolation

of those rights generally could be remedied by a traditional action for damages.

The violation of the constitutional right was viewed as a trespass, giving rise

to a trespass action.

Widgeon, 479 A.2d at 921.

7141 Based on the ii~stoncai by

precedent establ~shed the kngl~sh

Conlmon Lam and the

Maryiand court's consideration of the U.S. Supreme Court's decision in Hivens. that court

held that \%liena person 1 dcpnved

s of the const~tutional

r~ghts Issue In that case, those

at

rights may be enforced by bringing a comnion l a x action for damages. Widgeon, 47L4.2d

at 079. 111 response to the defendant's contention that because plaintiff had a\ailable to him

remedies under state tort law, a cause of action for kiolation of constitutional rights should

not be recog~iired, hlaryland court stated:

the

It is a well-settled rule, however, that where a particular set of facts gives rise

to alternative causes of action, they may be brought together in one

declaration, and where several remedies are requested, an election is not

required prior to final judgment. Additionally, under some circumstances, a

state constitutional provision may recognize and preserve an interest that is

wholly unprotected under state common law and statutes. Thus, the existence

of other available remedies, or a lack thereof, is not a persuasive basis for

resolution of the issue before us, [Citations omitted.]

742 In Moi-esi v. llepurttrzent of ITiln'life & Fislzerie.~(La. 1990), 567 So.2d 1081, the

Supreme Court of Louisial~a

concluded that the plaintiff in that case could bring a cause of

action for damages for violation ofhis state constitutional right to prnacy and to be free from

unreasonable searches and seizures. That court based its dec~sionon Biveizs and the

prebiously cited English Common La\+. Courts in Utah and Neb York, follo\+lng the two-

part analysis employed in \.-ermont, have concluded the statc constitutiollal rights in those

states to be free from cruel and unusual punishment, equal protection and the r~ght be free

to

from ulireasoiiable searches and seizures are self-executing and that based on the English

Common Law and Biveirs, darnagcs for violations of thosc state constitutionai rights arc

reco-t-erabic. See 1 % ~ v. i>eLnrtd (Utah I%%), 822 F.2d 732, limited b j LYp~~k~iiaiz

c--? r-ei

Sp~zckiiliitzv Board of Eclzic (Ctah 2000). 16 P.3d 533; Nroic.i~ Sti~lc

v (K.Y. 1996), 673

4143 Morc recently, the State of Connecticut has arribed at the same conclusion based on

Rivetzs and the Restatement. See Rinetfe v Sczho (Conn. 1998), 710 A.2d 688. The

Connecticut decision proLidcs an esccllel~t

summary of how other states had resol~ed

this

issue by 1998. See Bitzette, 710 A.2d at 696-97. The Connecticut court also distinguished

constitutional torts from common lau torts such as assault, trespass or conversion. It stated:

The difference in the nature of the harm arising from a beating administered

by a police officer or from an officer's unconstitutional invasion of a person's

home, on the one hand, and an assault or trespass committed against one

private citizen by another, on the other hand, stems from the fundamen.ta1

difference in the nature of the two sets of relationships. A private citizen

generally is obliged only to respect the privacy rights of others and, therefore,

to refrain from engaging in assaultive conduct or from intruding? uninvited,

into another's residence. A police officer's legal obligation, however?extends

far beyond that of his or her fellow citizens: the officer not only is required to

respect the rights of other citizens, but is sworn to protect and defend those

rights. In order to discharge that considerable responsibility, he or she is

vested with extraordinary authority. Consequently, when a law enforcement

officer, acting with the apparent imprimatur of the state, not only fdils to

protect a citizen's rights but affirmatively violczies those rights, it is manifest

that such an abuse of authority, with its concomitant breach of trust, is likely

to havc a different, and even more harmful, emotional andpsychological effect

on the aggrieved citizen than that resulting from the tortious conduct of a

private citizen.

*44 Wc conclude that the Niveizs Iinc ofauthority buttressed by 3 874A of the Resii~tcrncnt

(Sccond) of Torts arc sound reasons for appijrng a cause of acuon for money damages For

\,iolations ofthose self-cxecutrngpro\.tsions of the Montana i'onst~tut~on. also conclude

We

that thosc rights protected bq r\"rrircle [I, Secttons 10, 1 1 and 17 of the Montana Constltut~on

are self-cuecut~ng

based on the same analqsis employed by the Supreme Court of Vermont

in Slrields. We conclude that this result is further compelled by our omn statutory law and,

in particular, $4 1 - 1- 109 and 27- 1-202, MCA. Section 1 - 1- 109. MCA. provides that:

The common law of England, so far as it is not repugnant to or

i~~consistent the constitution of the United States or the constitution or

with

laws of this state, is the rule of decision in all the courts of this state.

Section 27-1-202, MCA, proLides that:

Ebcry person who suffers dctnmcnt from the unlawful act or onlission

of anotlter may recover from the person in fault a compensation therefor in

money. M hrch is called damages.

745 Either statute standing alone reinforces our decision based on the legislative policy

of this state. However, when considered together, and nith the right found at Article 11,

Section 16 of the Montana Constitution to a remedy for elery injury, this body of statutory

and constitutional lam' pemrts no other result.

746 The Defendant and Amicus Curia, Montana Defense Trial L,auycrs '4ssociation. urge

that alreadq a~allablecommon law tort remedlcs such as con>ersron and trespass are

adequate renredies for the conduct alleged b j the Plalnt~ffs

and, thcrefore, a cause ofaction

for violation of the Montana Constitution should not be authorized. However, we agree with

the previous autliorities that there is a great distinction between wrongs committed by one

19

private individual against mother and Lvrongs committed under authority of the state.

Common law causes of aciio~iintendcd t regulate relationships among and betuecn

o

individuals are not adequate to redrcss thc tSpe of damage caused by the invasion of

constitutional tights.

747 Finally, Defendants claim that this issuc has been resolved in Irvitzg v. Sci~oolllist.

rVo. I-IA (1991), 248 Mont. 460, 813 P.2d-117. However, Irving is clearly distinguishable.

There, we held as a matter of law that there was no damage from a school board's violation

of Montana's open meeting law found at Article 11, Section 9 o f the Montana I:onstitution

because the Legislature had provided a remedy pursuant to 5 2-3-213, MCA, which would

have voided action taken at a closed meeting and no effort had been made by the plaintiff to

do so. Irvitzg, 248 Mont. at 465, 813 P.2d at 420. We held that plaintifl's damages did not

arise from closure of the meeting but from action taken at the meeting which could have been

invalidated. Irving, 238 Mont. at 465, 813 P.2d at 420. Any additional language about the

constitutional claim being duplicative of a claim made pursuant to 42 U.S.C. 5 1983 was

unnecessary to the decision and was nlerely dicta.

1/48 For these reasons, we conclude that the Distnet Court correctlq held that a cause of

action for money damages 1s available for \~olatronof those rights guaranteed by Art~cle

11,

Sectioris 10 and 11 of the Montana Constitution. In addition, we conclude that a direct cause

of action for rnoncy damages is available for violation of the Plaintiffs' rights guaranteed by

Article 11, Section 17 of the hilontana Constitution, and remand for further consideration of

the Plaintiffs' claims for damages pursuant to all three sections of Article 11.

20

449 Did the Defendants ha\ e statutory ~ r n r n u n r based on the facts in thrs case pursuant

t~

Section 2-9--103(1)1MCAI provides as follows:

If an officer, agent, or employee of a go~.ernmental entity acts in good

&

faith, without malice or coimpt~oii. under the authority of lam that law

is subsequently declaredinvalid as in conflict with the constitution of Montana

or the constitution of the Cnited States, neither he nor any other officer or

employee ofthe governmeiital entity he represents nor the governmental entity

he represents is civilly liable in any action in which he, such other officer, or

such governn~ental entity would not haxe been liable had the law been valid.

[Emphasis added.]

751 The District Coui-t held that because Ames and Caraway acted in reliance on the law

(citing Ka~fise.y Nurf?s(1 902), 27 Mont. 154, 69 P. 71 1, and Boycl v. Clniterl Stutes (1 886),

v.

116 L.S. 616, 6 S.Ct. 524, 29 L.Ed. 746) and because neither acted with "n~alieeor

eorn~ption," Defendants mere entttled to Immunity as a matter of law pursuant to Q 2-9-

all

t 03(1), MCA. The problem u ith the D~strict

Court's analysis rs twofold. Ftrst, Carau a j and

Ames, based on their own testimony, did not rely on anything they assumed to be true based

on Ramsey or Roj~d.They relied on the writ of execution and on Do~wart's

admonishment

to use the back door and not let the cat out. Second, we did not conclude that postjudgment

execution statutes mere ~tnconstitutional authorixing entry illto Dorwart's home. IVe held

for

that there was noth~ng the writ of execution or the statutes pursuant to whteh they mere

in

issued which did authorize entry into Dorwart's home. Neither was there any language it1 the

writ of execution nor in thc exccutioll statutes ~ ~ h i cauihorized seizure of nonexempt

ir

property owned by Dorxvart or others. We specifically stated:

Here, neither the writs of execution thccnselves, nor the post-judgment

execution statutes pursuant to which the writs were issued, expressly directed

or authorized the deputies to enter Dorwart's private residence to effectuate the

seizure of his property.

Moreover, nothing in the post-judgment execution statutes expressly

authorizes the entry into a private home for the purposes of executing a writ

of execution. While the execution statutes authorize the levy on-or "seizure"

of-a judgment debtor's personal property pursuant to a writ of execution, they

do not authorize officials to enter private homes to search for that property.

[Citations omitted.]

752 Therefore, Caraway and Ames dld not enter Doruart's home and s e ~ r e

nonexempt

property pursuant to a statrtte nhich has since been held uneonstitt~tional. The execution

statute pursuant to u hich they entered the home did not authorire t h e ~entry in the first place

r

and did not authorize their seizure of nonexempt property. For these reasons, we conclude

that $ 2-9-103(1), MCA, is inapplicable to their conduct and they were not provided uith

statutory immunity. However. we also conclude that to the extent any claim for damages for

violation of Dorwart's right to due process is based on a failure to provide him bvith the notice

of exempt property and a t ~ n ~ c hearing requircd by our prlor dec~ston.

ly those clainls are a

result of the execution statures' constitutional inadequacy and recokery for those procedural

inadequacies is barred by thc statutory immunity provided by 3 2-9-103(lj, MCA. The

District Court's dismissal ofthe Plaintiffs' claims based on statutory immunity is oihcrwise

953 Should t h ~ Court create qualified lmvnunlty analogous to federal qualified tmmuuity

s

pursuant to 42 C.S.C. 8 1083, and, rf so, mere Defendants in thts ease

as applied in clain~s

entitled to summary judgment on that basis'?

1/54 Damages may be rceovered for \iolation of federal constttutional rights pursuant to

42 U.S.C. 5 1983. That section provides that:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . subjects, or causes to be subjected, any

citizen of the Unitcd States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law.

suit in equity, or other proper proceeding for redress . . . .

355 However, in Harlo~c-, Supreme Cour-t held that qualified or good faith immunity

the

is sometimes necessaty to baiance the competiilg lalues of damages for violation of a

constitutional right and the vigorous exercise of official authority. The Court held that:

[Glovernment officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known. [Citations omitted.]

'56 We applied qualified immunity to bar the Plaintiff2 claims based on 5 1983 in

/>or11 ( x i 7 J There we held that the la^ on wh~ch

Dornart rel~ed asserting h ~ federal clat~n

in s

was not clearly established at the time that it was violated. Cara~vaq Ames were entitled

and

to qualified immunity for Don\art's 5 1983 search and seizure claim. ffiinvari I. v 1 2 .

357 Defendants contend that they are also entitled to qualified immunity fkom liability for

violation of the Plaintiffs' state constitutional rights. 'They contend that other state courts

hate so held and cite as examples ,l-loves.si; Jenness 1 Mckerson (Me. 1994), 637 A.2d 1 152;

.

:

Dttarte v. Nealy (Mass. l989), 537 N.E.2d 1230; and numerous federal decisions.

Defendants and i\mieus Curia, Montana Defense Trial Lawyers Association, contend that

the same policq:considcrations whichjustify the application of qualified immunity to damage

claims for violation of federal constitutional rights should apply to claims for violation of

slate constitutional rights and that because the issue of qualified immunity has been

previously determined in the Defendants' favor, they are entitled to have the District Court's

summary judgment affirmed.

1/58 Donvarts contend that this Court should deellne to follow the federal law regarding

qualified ~mmunity

because tt would lead to a procedural quagmire, reward ignorance of

constitutional rights and detract from efficiency in resolving constitutional claims.

1159 In amicus briefs filcd by Wadc Dahood, Chairman of the Bill of Rights Committec

of the 1 972 Montana Constitutional Convention, and the .Montana Trial Lawyers Association,

Amici contend that the adoption ofqualified immunity in Montanawould ignore fundamental

differences between federal law and our state constitution. They contend that the federal

government has reseried sovereign immunity except to the extent that it is waived, citing

LJnitedStures v. Mitc:hell (l%80), 445 G.S. 535, 538, I00 S.Ct. 1349, 1351,63 L.Ed.2d 607,

24

but that the Montana Constitution abolisi~es

sovereign in~munip

except to the exicnt Ithat it

is 1-eadoptedby two-thirds of thc Legislature, citing Article li. Section 18 ofthe hlontana

Constitution. They- coiltend that federal qualified immunity is a common law construct

arising from the long tradition of sovereign immunity as recognized by the Supreme Court

in liicl~arclJ.otz ,WcKnight (19971, 521 U.S. 399, 1 17 S.Ct. 2100, 138 L.Ed.2d 540.

v.

f 60 Although most state courts which ha\ e consldcred the issue have followed the federal

law of qualified immunity. not all ha+e done so. In Clen 1. Cia. ofBaltimore (Md. 198S),

541 A.2d 1303, 1314, the Maryland Court of Appeals rejected qualified imnsunitv as a

defense to violations of the .Maryland Constitution with the follow-ing explanation:

On the other hand, constitutional provisions like Articles 24 or 20 of the

Maryland Declaration of Rights, or Article 111, 3 40, of the Maryland

Constitution, are specifically designed to protect citizens against certain types

of unlawful acts by govemme~stofficials. To accord immunity to the

responsible government officials, and leave an individual remediless when his

constitutional rights are violated, would be inconsistent with the purpose of the

constitutional provisions. It would also, as frankly recognized by counsel for

Officer Leonard in this Court, largely render nugatory the cause of action for

violation of constitutional rights recognized in FV'idgeon, Mason, Heinse,

Weylet-,and other cases.

'161 While we agree %ith the Maryland Court of Appeals, we find more compelling the

historical basis for federal immunity and our o n a constitutional prokisions which eliminate

govemnlcntal immunity and protect access to our courts.

762 In ,bfitchell, 445 U.S. at 538, 100 S.Ct. at 1351, the Supreme Court stated that:

It is elementary that "[tJhc United States, as sovereign, is immune from

suit save as it consents to be sued . . ., and the terms of its consent to be sued

in any court define that court's jurisdiction to entertain the suit." A waiver of

sovereign immunity "cannot be implied but must be unequivocally expressed.''

In thc absence of clear congressional consent, then; '"here is no jurisdiction in

the Court of Claims more than in any other court to entertain suits against the

Lnited States." [Citations omitted.]

963 The Sugrcrnc Court has also explained the difference between qualified immunity and

a defense to a claim on the merits as \\;ell as the dceply rooted common law traditions for

immunity at a federal level in Richardson. In Riclznrdson, the Court was presented with the

question of vrhcthcr qualified immunity could be applied to bar claims by Tennessee

prisoners who clalmed to h a ~ been injured by guards at a private prison, The Court held

e

that prison guards employed by a private firm are not entitled to a qualified immunity from

suit by prisoners charging a 9 1983 violation. Richardsonl 521 U.S. at 412, 117 S.Ct. at

2108.

764 In Richuurison, 521 U.S. at 403, 117 S.Ct. at 2103, the Court explained that "a

distinction exists between an 'immunity from suit' and other kinds oflegal defenses. . . . [A]

legal defense may well involve 'the essence of the wrong,' while an iinmunity frees one who

enjoys it front a lawsuit whether or not he acted wrongly." it concluded that while immunity

for a gobernment employee is deeply rooted in the common law there is no comparable

tradition of tmmunit) applicable to prrbately employed pnson guards.

765 i.ikeu,ise, there is no comparable immunity found in Montana for the acts of state

employees in violation of state constitutional rights. In fact, contrary to the federal

presumption of immunityl the Montana State Constitution at Article fi, Section 18; prohibits

;n~munirqin the f o l l o ~ r n g

language:

The state, counties, cities. towns, and all other locai gobernmental

entities shall have no inimunity from suit for injury to a person or propetly,

except as may be specificaliy provided by law by a two-third vote of each

house of rhc icgisiarure.

766 We need not decide in this case Whether by a two-thirds vote of the Legislature

qualified immunity can in fact be created which would render unenforceable other provisions

of the same constitution. The 1,egislaturc clearly has not done so and that argument is not

before us.

q167 Furthennore, Article 11, Sectton 16 of the Montana Constttut~onprok~desthat

"[c]ourts of justice shall be open to every person, and speedy remedy afforded for ewry

injury of person. property, or character."

8 As pointed out in Richanfsotz, quahfied ~mmunity not a defense to the merits of a

is

claim but frees a wrongdoer from liab~litywhether or not he or she acted wrongly.

Therefore, the adopt~on qualified immunlty in Montana would also be inconsistent with

of

the constltuttonal reqt~iremen!that courts ofjust~ce

afford a speedy remedy for those claims

recognized by law for injury of person, property or character.

769 For these reasons, we conclude that qualified immunity, as established by federal law

and applied by this Court in Dotwart I, to bar those claims filed by plaintiffs pursuant to 42

U.S.C. 3 1983 is not applicable to those claitns filed by the Plaintiffs for violation of those

r~ghts

guaranteed by the Montana State Constitut~on.

lSSllE 4

r-'70 Did the District Court err when it denied Plairitiffs' claim for an award of aitorncy's

fc,es?

7 Dorwarts contend that the violation of their state constitutional rights entitled them

to an award of attorney's fees in addition to whatever damages might be provcn and

recoterable. In support of that argument, Plamtiffs contend that attorney's fees are

reeotcrable sn successful claims pursuant to 42 U.S.C. $ 1983 and that fees arc necessarily

reeoterable for vindication of state constitutional rights by analogy and because the cost of

bringing a claim might otherwise outweigh the expected benefits. Prior to oral argument,

Plaintiffs did not claim nor brief their eniitlement to attorney's fees pursuant to the pri3;ate

Hd.

attorney general theory which we adopted in School Trzrst v. State e.x t~-el. of Con1 't-s, 1999

MT 2 6 3 , l 67, 296 Mont. 402, 67; 989 P.2d 800,1/ 67. Therefore, we will not consider

Plaintiffs' claim for attorney's fees on that basis.

1/72 The Defendants contend that an award of attorney's fees under the circumstances in

this case would be unjust for the reasons set forth in Donvilrt I. Ai11icus Curia, Montana

Defense Trial L,awyers Association, contends that it is a legislative responsibility to

determine when fees are recoverable and it has not created a right for the recovery under the

ctrcumstances in thls case.

*7;3 The Distrlct Court concluded that:

The general rule in Montana is that "the prevailing parry in a civil

action may not recover attorney's fees absent a contractual agreement or

exprcss spatutory autl~ority."Purkerli EIder(I992), 254 ilfont. 270,271,836

P.2d 1236, which cited Harris v. Ruuer (1 988), 230 Mollt. 207,749 P.2d 1068,

and h f ~ w t l n . Croivn LiJe Iizsurnizce Co. (1%3), 202 .Mont. 461, 658 P.2d

V

1099. There is no contractual agreement providing for attorney's fees in this

case. Plaintifthas not cited any statute providing fhr attorney's fees,

y74 Thc District Couti was cot-rcct. Based on the issue as it has been framed by the

parties' arguments and the authorities presented to us, we conclude that no authority ltas been

established for an award of attorney's fees to the Plaintiffs in this case. Therefore. u7eaffirm

the District Court's denial of Plaintiffs' claim for attorney's fees.

SUMMARY

775 We conclude that the rights at issue in this case, Article 11, Sections 10; 11, and 17 of

the Montana Constitution, are self-execut~ng that pursuant to the English Cornmon Law

and

as adopted by the State of Montana, 4 8744 of tlre Restatement (Second) of Torts, and

analogous federal lau, including Hivens, in combination with the clear intent of those

delegates to the Montana Constttution that courts be open for redress of injuries to person,

property, or character. that a cla~mfor damages from v~olationof the specified state

constitut~onalrights can be presented as a cause of actron in Montana. We furthennore

conclude that 3 2-9-103(1), 'MCA, 1s not a defense to the Plaintiffs' claims based on the facts

in this case and make no deterrninatio~iabout its constitutionality. We conclude that

qualified immunity as described by the U.S. Supreme Court in Harloiv is not a defcnse to

clairns for damages for > iolatlon of Montana constitutional r1gl.tt.j. 'And, filially, we conclude

that based on the arguments and authorities presented in t h ~ s

case, the Plamtxffs are not

entitled to the reco\er> of attorney's fees

575 Thc right to pi-ivacy-to be $eftalone- is precious. It is essential to our ijuallty of l i k

No onc was more an-are ofthat than the authors of our Constitution who ibent to grcat and

conspicuous lengths to preserve it in thc face of what they correctly anticipated would he

increasing political pressure and the developing technological ability to erode it.

777 Invasion of individual privacy by a fellow citizen is a bad thing. Invasion by the state

or its agents is worse. A culture of governn~enta!

disregard for the right to privacy would be

worst of all. 70 avoid that possibility in the face of sometimes short-sighted popular and

political sentiment will t ~ k a vigilant judiciary with a full arsenal of remedies. Today, in

e

recognition of this year's thirtieth anniversary of our state constitution and those far-sighted

delegates who crafted it, we add the cause of action for damages to that arsenal.

178 For these reasons, we affirm in part and reverse in part the District Court's order of

sumniaty judgment.

We Concur:

Justices

30

95'9

,$ I coircut. in our Opinion. i3ehre clisci~ssirrg substance of my speciai concurserice,

. the

ho\i:e~,er, an1 conlpclled to addrcss Cliicf Justice Grayi.: contention that our Opinion--and

!

presumably my special concunencc--violate the "law of thc case" doctrine as regards our

discussion and holding on due process. 1 agree that the law of the case doctrine is an

important rule; it is axiomatic that we have applied it many times. Notwitlislanding, this

doctrine is not applicable in the present situation given the posture of this case vis-a-vis

Donr>clrtI. First the law

680

!I In her dissent, Clrief Justice Gray relies on C'ulcarcrrcz I,. :\IOI?TLEIJ(~ 2001

R<~.so~(rc~,;,

7

MT IN3: 330 5font. 249>"/ 9, 32 P.3d 764,q ") for the proposition that uiider the lam of

the case doctrine, an earlier decision by this Court resolving a particular issue between the

same parlies in the same case is hillding arid cannot he relitigated. However, Cu/ci~ten~xz

also

stated that "the doctrine of law of the case is not inviolable and that there may be exceptions

to the application of the doctrine." C'czlcirtcrru, 'i 12 (citing Stirtr v. C;ilu'er. 2001 MT 121,

13, 305 Mont. 362.7; 13,28 P.3d J8X1(/ 13). 1Ve set forth one such exception in Srute v.

Zi~~~inlr~zc,rrilit~~ 175 :Motit. 179, 185. 573 1'.2d l74> 178, wherein we noted that

( 1 977).

an exception to this general rille [of tlte law of the case] exists wltcre the case

must be renianded to the District Court for further proceedings because of

reversal on an unrelated issue. In suclr case this Court may correct a rnarrifest

error in its ibrrner opinion and announce a different ruliilg to he applied

prospectively to future proceedings in the case. This exception to tlic general

rule is recognized in Montana at least since 1955 when we held that the law of'

the case announced in the first appeal. and which governed tlie second trial,

does not prevent the appellate court front correctiitg a manifest error in its

address it i n Dori.i:clzti 1. Thus, that issuc tvas never decided. The i a ~ v

of'the case doc~rine.

iher.cfore~

does riot apply.

qiX3 With that said. 1 turn to my separate Opinion. Our resolution of this cause using

1:

. fioi?ted Agetlt.~ I 971). 403 I!.S. 388, 91 S.C:t. 1999. 2'1 L..Ed.2d 61 9:

Bi~lct~sSix Ci?kilol~.n (

and the common law as components ofsthe analytical construct for our decision is appropriate

given the manner it1 which tlie arguments on appeal were framed by the parties and given the

present state of the law.

784 Nonetheless, for reasons hereinafter discussed, I firmly believe that, inikqci~ilet~t

of

any federal jurisprudence: fedcral constitutional authority, the common law. or other

authority. the foundation for private causes of action for dariiages fbr constitutional violations

is found in the language of Montana's 1972 Constitutioli and in the proceedings of the

Constitutional Convention. I suggest that it is important to acknowlecige this principle,

because the greater guarantees of individual rights afforded by Montana's Constitution may

be neither bounded nor frustrated by federal cot~rt

decisions which, with seeming increasing

frequency, are weakening similar protections of the federal constitution. See Triir~kel

v.

. ... (1

gf,bfilit~1g~A/iii2imY97!, 282 Mont. 348, 362,918 P.2d 614, 623 (holding that

LIep'l',czrti~~er?t

the sentence in Article 11, Section 16, Constitution of klontaria, that guarantees an employee

the right of full legal redress againsr third parties is mandatory and self executing and "leaves

no room fbr erosion hascd 011 what federal courts or the courts of other states v;ould do

punuantttt federal laws or tlie laws of other states.").

8 %loreo\-cr,Montan;t's i:onsiitntiirii guarantees riglrts that are 11ot provided for in the

federal constitution--the riglit to a clean arid neaithhi cnvirt~nrnei-ri. riglit to prirsiic Iii'c's

1111;

basic rteccssities. the right to enjoy and defend o ~ ~ elife and liberties (all protected under

's

,Article 11, Section 3); the right of dignity (i2rticle 11. Section 3); the right of public

participation it1 the operation of governmental agency decision making (Article 11: Section

8): the right to examine government documents and to observe the deliberations of

entities (Article 11, Section 9); the right of individual privacy (i-\rticle It, Scctiori

govein~nent

10); the rights of persons not a d ~ ~ l(Article 11, Section 15); the right of access to the courts

ts

and to full legal redress (Article 11. Section 16); the waiver of sovereign immunity (Article

Ii, Section 18); rights regarding the initiation of criminal proceedings, criminal detention,

imprisonment for debt and rights of the convicted (Article [I, Sections 20. 23, 27 and 28

respectively); the right to an award of attorney fees in eminent domain cases (Article 11.

Section 29); and others.

786 in point of fact. Professors Larry Elison and Fritz Snyder state that seventeen of

Montana's Declaration of Rights have no parallel in the Bill of Rights of tlre U.S.

M.

Constitution. LARRY EI..ISON FRITZ

AX11 SNYDI:R. MON~SAK\

THI: %'A'I-E C0XSSII'I:TION:

il RI:I'EKE'N('ECrt!Ii)f, 20 (2001) (hereinafter Er.isoQ (citing Ronald K. L. Collins, Reliut~c~

o r 1 Stare Con.stitz~tior~s--T~~~~ IJi.su.sfery63 TIX. L. RI:v. 1095, I 122 (1 985)). Thus,

;i4~1tzt(1na

it is impor!ant that the right of direct action to protect these distinctive Llotitana

constitutional rights :lot be restricted by jtirisprt~dencethat is liriiited to a few constitutional

rights tliat are cornriion to both the coilstiti~iions the United Slaies arid Montana or ti~ai

of

were historically actionable at cornnlotl iaw.

"[7 I. rights violated in the case at bar were those

As stated in Oont~~!.; the coiistitutio~~al

guaranteeing the right to be free from unreasonable searches and seizures under the Fourth

Amencinient and Article II, Sections 10 and 1 1 of Moritana's Constitution and the right to due

process of law protected by the Fou~-teetltli

'Amendment and Article 11, Section 17. ilt least

as the federal law now stands, Bivcl1.s and the line of cases following it support our decision

here to create a remedy for the violations of these rights.

188 In Bive~u, United States Suprerne Court, recognizing for the first time an iinplied

the

private remedy for a constitutio~~al held tliat the victim of a Foul-th Amendment violation

tort,

by federal officers may bring suit for money damages against tlie officers in federal court.

403 U.S. at 396-97, 91 S.Ct. at 2004-05. As stated in our Opinion. in thc decade

Biver~s,

following. the Court extended Biverzs to include an implied damages remedy for violatioli of

the Fifth X~~icndrnent Process Clause (Dnvic. 1,. t'cissrnan (1979), 442 US, 228,99 S.Ct.

I)ue

2264, 60 L.Ed.2d 846) and for violation of the guarantee against cruel and unusual

punishment under tlie Eighth Amendment (Cul-/sonI). Green (1 980)>146 C.S. 14, I00 S.Ct.

1468,64 L.Ed.Zd 15).

"19 Ho\vever, sirlcc Cut-lsori,the Supreme Court has consistently irfuseci to cutend Bivetrs

to cover violations of any new constitutional torts or any new category of defendants.

Serv.

ti?wi.ctiof?n~ (hrp. 11 IIfu16,.rko (2001 j, 534 C.S. 6 1 : 122 S.Ct. 5 15. 15 1 L.t:d.2d 456.

,Ye?-vicerthe Court retiased to exicnd Bivc.ns to auiilorize a right cjf acrioir lor

In i'cjr~-ccrioi~al

damages against a private etitity (these a private prison operated under contract to ihc fedcral

Burea~iof P r ~ w ~ i \c . e l though tlie coporatlon mas actlng under color of federal lam*

)~ l

C'otreciiorlcrl Senjic-es; 534 U.S. at . 122 S.C't. at 519. The Cotrrt rrlade it clear tlrat Bivctis

is to deter individual federal oflicers from committing constitutional violations and that the

Court created and twice extended the otliemise noliev~stent

cause of action only to provide

a remedy for a plairttiff "who lacked u r y ultertzu~i~~e i i ~ d y Itarms caused by an

re~ for

conduct." Conectionill So-v., 534 U.S. at

individual officer's u~~coiistitutio~~al , 122 S.Ct.

at 521 (emphasis it1 original).

4/90 Even that, in my esiitmatioii, overstates the present Court's view ofBi~mzs.One cannot

read Cbl-recliorzcll Services and the cases cited therein' \vitliout cotni~lgaway with the

conclusion that Bi1:eizs is and will be limited to violations of constitutional rights under tlle

Fourth and Eighth Amendments and in some cases undcr the F~fih

Amendment (Due Process

Clause). And, even in those it~stances,the Court will likely casefillly scrtitinize the

I

Sec Bush 1,. Luciis (1983), 462 C.S. 367. 103 S.Ct. 2403, 76 L.Ed.2d 548 (Court

declined to create a Bivci~s remedy for First Amendment violation); C%apiic'/l v. CVcrliocc (l083),

162 U . S . 296, 103 S.C?.2362, 76 L.Ed.2d 586 (Court declined ro allow enlisted military

persorrncl a Bive~zs-tj-pe Stuler v. .SrcitrIey (, 1987),

remedy against their superior officers); L'riirc~d

183 U.S. 669, I07 S.Ct. 3054, 07 L.Ed.2d 550 (no i3ivetl.s remedy available for iiijnries that arise

out of inilitary activity "incident to service"); .Schu,riker v. Chilick (1988). 487 U.S. 412: 108

S.Ct. 2460, 101 L.Ed.2d 370 (Court declined to infer damages action against individual

govcrnnient employees alleged to have violated due process in handling of Social Sec~~rity

claims): FIIIC v. i1,f~ver (1994), 510 U.S. 471, 1 14 S.Ct. 996. 127 i..td.2d 308 (Court declined to

extend Kiveirs to penr~it against federal agency, even though the agency was an~cnablc suit

stlit io

beea~rse Congress had waived sovereign immunity).

circ~imstanccsof each case and, i f it applies Birctls at a]!, it \rill do so as narrowly as

possibie. The Co~iri and. at ieast as prctscniiy constituted. will bc \rery reticent i o expand

is,

Ri\~i'n.sto other constitutional guarantees or to other classes of defendants.

791 indeed. in !lis concrirring opinion, Justice Sealia, joined by Justice Thomas, stated

that he would ttor extend Bivens even if the narrowest rationale of that case arose in a new

context. Not mincing words, Justice Scalia relegated Bivens to the status of "a relic of the

heady days in which [the] Court assumed common-law powers to create causes o r action--

decreeing them to be 'implied' by the mere existence of a statutory- or constitutional

proliibitior~.~'Con-cctiolzul Seiv., 534 U.S. at - 122 S.Ct. at 523-23 (Scalia, J.,

,

concurring).

Tj92 Given this direction of the U.S. Suprerue Court, Bivetis eventually may well be

interpreted out of any meaningful existence. Moreover, as noted, Bivet~s already limited

is

to constitutional torts co~nnrittedby governmental officers under color of law; involving

searches and seizures, cruel and unusual punishnient or sonie due process violations; and

where the injured person lacks an alternative remedy. These limitations makc it analytically

difficult to provide citizens with the broader and, in sonie cases. unique, protections afforded

by hloiitana's Constitution should a case arise in some otlier context: involve some other class

of ciefendant or il>jurcd plaintiff: involve a constitutional right not historically actionable

urtder conxnon law: invol5-e a right where the comnlon law remedy has been superseded or

suspended by statute; or involve a right for which the svatutory reniedy created is inadequate.

793 Tl~ereJbre, believe ihat it 1.; in-iportant to address an equally compelling rationale for

1

oar decision to recognize that tlicre is a directl private right ctf action b sliile consiiiu'iicinal

r

violations. This alternate rationale is derived from the language oi'klontana's Constitution,

iitdependenr of federal jurispn~dence federal constitut~onal

and authority. ~ndependent tlie

of

colnnion lau: and independent of statute. It is to that. I now turn.

593 In his nfrziczt.s citriue brief. Wade Dahood, Esq., forrnerly the Chairman of the Bill of

Rights Committee (Committee) at the Constitutional Convention, argues persuasively that

when tlte Constitution's "Declaration of Rights was framed, [the Comniittee:l intended it to

srand on its own footing and to provide individuals with fu~idamental

rights and protections

far broader than those available through the federal system." T h ~ statement i s supported 61

s

reference to the Committee's February 12. 1972 ban.;m~ttal

letter to the Convent~on

delegates

which states that "new safeguards" had been added to the Declaration [Bill] of Rights "to

meet the changing circumstances of contemporary life" and that:

In presenting this proposed Declaration of Rights, the eornn~ittee notes

that the guidelines and protections for the exercise of liberty in a free society

come riol/hotn gover?znzentbut fi-ollz llte people ivlzo creute lhut govcrr~ment.

It is that spirit which has motivated this committee to insure for

Montana's future, through this bill of rights, a rnore responsible government

that i s Constitutionally commanded never to forget that govci-tzt7lent i7 c~'c(itt.d

.

solc!v,/i)r ilzc irel/iix ofl/7e11eopleso that the people can more fully enjoy the

heritage of An~erican liberty within the structure of tlrat government.

.Cloiiruiia C',iz.stitlrriorliil ('otr\~er~liotz, q i ic'ii$its Cotrzmirtef Propo;cil. VoI. 11, 61 9

Bill

(emphasis added)

*:95 Taking these admonitions to hear!. this Court has. ihr example: applied ilie broader

protections of Montana's Constirution in a nuntber ofcorticxts irivolving iindividusrl privacy

(<i~:vczctnv. Sriire (1997). 283 Mont. 433,942 P.2d 112) and personal autonomy (ili-nrsti-o~zg

1

.: Stare: 1999 MT 261, 296 Mont. 361, 989 P.2d 364): involving search and seizure (Sfnte

v. Rllllock (1995), 272 Vlont. 361. 901 P.2d 61; Strite v. Siegnl(1997), 281 Mont. 250, 934

P.2d 176: iStule v. Elisoll, 2000 MT 288, 302 hlont. 228, 14 P.3d 456); involving the

envirotinient ((llor~mrzu

Er~vt/. Qclulify, 1999 kIT 248. 296

Infi,. Cfr. I!. Departrrleiif qf'E~'lrw/.

Mont. 207, 988 P.2d 1236); and involving the right of participation and the right to know

(Chniniorz Cause I*. Sruiutor;~ C'oinrrz. to Xoininute Caililidates jbr C'oritt~z'rof' Politiccll

Pr~ctices

(1994), 263 Mont. 324, 868 P.2d 604; Ci.cut Fails Ti-ihztile Cb. v. Gt-eat Fulis Pub.

Schs. (1992). 255 Mont. 125. 841 P.2d 502: Associated Press v. BoardqfPtih. Edztc. (1991),

246 Mont. 386?804 P.2d 376; Ji~rztssi Board qf'Ti-lrste~2s

v. (l983), 204 Mont. 131, 664 P.2d

316).

7796 Furthcrniore, and ackno~vledgingthe Committee's statenlent tllat no part of the

Constitution is niore important, :Wor~turzaCor~stituriotlal

Coti~.eritiotz~ If, 619, we have

Vol.

repeatedly recognized the rights titund in Montana's I>eclaration of Rights as being

"f~mdamental."

Hi4ttc (i)frnnuiii{t; Cilioiz 1 Lei.i:i.~1986) 2 19 Mont. 426.430.

: 71 2 P.2d 1309,

13 1 1. ineatling that these rights are significant components of liberty, any infringement of

which will trigger the highest level of scrutiny, and, thus. the highest level of protection by

the courts. I(ios.s 1. E(/~,vui-(l Jorrc,.r &

; I). Cii..2002 MT 129: * 52, 3 I 0 klont. 123. (i 52. 54

LS.3d 1. ! 52 (Nelson, J.; concurring).

i

797 Sbrc have also obsemed the obvious logical coroI1ar)- to these rules: "jc]u~~siittiliciiid

rights that cannot be enforced are illusory. It is as if those rights cease to exist as legal

rights." moss, 1' 58 (Nelson, J., concurring). The importance of being able to enforce one's

constitutional rights through the courts and to receive meaningful redress for p~lblicor

private injury cannot be overstated, If an individual's constitutional rights can be violated

by the government, by the government's officersl or, where so protected, by a private person,

secure ill the knowledge nothing will come of the wrongdoing, then it follo\vs that the

constitution provides no protection at all. It is but a collection of elegant words without

substance; it is a shield made of little rrrlore tlzan aspirations and hopes.

'98 As Attorney Dahood argues in his cz~rzicus

brief. in order to avoid this result and in

order to give Montana's constitutional guarantees teeth, the framers intended that the people

reta~n ability to protect tlletr r~ghts--bothenumerated and unenumel-ated--through d~rect

the

actions in the courts. This conclusion follows from the Committee's proposal of Article 11;

Seet~on34 to the Convention delegates and the subsequent adoption of this provision.

Article 11, Section 34 states:

Iinenumerated rights. The enumeration in this constitution of certain

rights shall not be construed to deny, impair, or disparage others retained by

the people.

$99 In proposing the adoption of this section,' the Cornnrittee did tu'o things. First, it

' This provision was formerly included as Article 111, Section 30 of the 1889 Constiriitlon

of Montana.

40

in

recognized that the riglits cnun~cratcd blonta~~a's

Cousiiiurion were not cxciitivc--i.e. that

ilier-e are unenutncraied rigills or "rights beyond those specificall)- listcd" wiiich are ritaiiled

hy the people. l/ioi~tu~ru C'orlvcririon. Vol [I., 635. Second, and irl~poriant

C'oti.srir~~fio~rcri for

our purposes iicrc, the Committee considered this Section to be " . . . a crucial part of any

effort to revitalize thc state governnrent's approach to civil liberties yuestio~is . . [and that

.

this Section] . . . may be the source of innovative judicial activity in the civil liberties field."

n/(untuna Corrstitutiotial Corrl cnfiorz. Vol I[., 645

?/I00 The proceedings of the Const~tutional

Convention r e ~ e a no debate on Article 11.

l

Section 34. It was adopted unanimously on the straightforward, yet eloquent

recornniendation of Delegate Eck, who stated: "I think that [this Section] is completely self-

wh~cli not ellurncrated which the people of Montana should

explanatory. There are r~ghts are

not be denied." ~ / J O I Z ~Cortstit~itiortizl

(~~ICI Tri~r~scrjpt, \.'I, 1832.

Corrvention, V~'rh(ltir)i Vo1

'/I01 Professors Elison and Snyder observe that the Comriiittee's belief that A~ticle11,

Section 34 could be the source of "innovative judicial activity" in thc area of civil liberties

has not been realized; that there are no cases referencing or interpreting this Section. EI-rsoN,

86. While technically inaccurate that no cases iiave referenced this Section.' it is true that

this Court has not applied Article 11, Section 34 in any substantive context

' Article !I, Section 34. was lnentioned ill j\folli!ruiit Sfcries ?el. d: 7i.i.( i ) . 1,. !k~~c~rirnei?t

~ I f ' l t h.Sc,rv. Xt.,qzdatioiz ( 104 I ). 194 Mont. 277. 282, 634 P.2d 14 1. 184; in A.s.soc.iutcx/ I'iess.

.

117~. 1)e~~[wtfitcv?f

v. of Re~,ciiire; 2000 'vlT 160. @j 62, 300 'Llont. 233. . 62, 4 P.3d 5: 1; 02 (Selson,

i

.I., concurring): and in fiurlit~i. (;rc?c>11;

1.. (19)88),234 Mont, 259, 202, 703 P.2d 650, 652 (citing to

Mr. Justice Sheehy's reference to the Section in his concurring opinion in B I I ~ L;)inn2~tiiiyIC

iAlion, 219 Mliint. at435; 712 P.2d at 1314).

4' --

IIc,i i>rofessorsElisotr and Fritz suggcst that:

jt]i~e sectioil co~ild used as thc basis for tile introduction oi'a theory

be

ornatura! lax. or an expansiolr oftile use ofsuhstanti.i.c due process or judicial

finding of unstated individual rights Itidden in the self-reliant, free-thinki~~g,

idiosyncratic Montanan mythology. Presumptively. h i s could limit stale

police pomjer and enlarge existing riglits or create new rights. . . . \.Vliile

p1enar-y state legislative power and unenumerated rights might appear to be in

coriflict or contradictory, they are not. I n a state constitutiorl a provision on

ur~enurneratedrights as a balance against state police power i s a potentially

useful idea, but something of an anon~aly.Historically, within the context of

state governments in a federal system. the limitations on plenary legislative

power are the specific prohibitions and restrictions found in a constitutional

declaration of riglrts. Additzg trrzeliurneruted u',igl~ts sl~ecificpr.olzihiti(~tz~s

to iltzd

restrictions could transfkr to the people incfirectly,utzd to f/ze cot~rt.~ directly,

aciditiorial rlzcurls ofchi~ckingpleriat:~ legislutive power.

EL[soh, 87 (emphasis added)

$1103 Frankly. 1 can think of no better appl~cat~on A ~ t ~ c11, Seet~on than in the case

of le 34

at bar

$104 As the Committee recognized, the "protections for the exercise of liberty in a free

socletl conic rzotfrorir go\~crni~zcnt

hlctfronz tlzepeople it'l~o

create i/~ut

go-ovemtrzerrt [and that]

gover.nnicrit is cremteil .so/eb,jor the 14,elfirreof /lie peo~~le."12lorttu1zuCorrstit~ctiorlal

C~orri:rrrtiorzl 11, 61 9 (emphasis added). Indeed. Article 11. Section 1 of the Constitution

Vol,

of Montana could not be Inore clear

Al/ political power is vested in and derived from the people. ,411

goveninient of right originates u.ith the people, is found t1po11their will orzly,

and is instituted .solely for the good of the whole.

(E~npliasis

added).

'[I05

I: The intent ofthe framers and the language of the Constitution is incontrovertible: all

government is derivcd fi-on1 and origi:iatcs with the people; government is created and

solely ibr the good and welfare ofilre pcople. Thus, and with those core principles

ii~siituted

in mind, it makes perfect sense that. as they did in Article If. Section 34, the people would

retain unto themselves rights beyond tliose which arc enurnerated in their Constitution.

Recognizing that they are the wellspriiig of all govertirnent which they choose to impose

upon themselves, the people also positively declared their intent not to restrict their liberties

to those textually set out i n their Constitutiort.

'j! 06 Correspondingly, it takes no leap of logic to conclude that one of the unenumerated

rights which tlie people would necessarily I-etain is the po~ver--theright; if you will--to

protect frolii government infringement their ability to fully exercise those liberties which they

specifically guaranteed unto themselves in their Declaration of Rights.

7107 As already noted, constitutional rights that cannot he enforced are illusory; they

simply cease to exist; they offer tio protection whatsoever. Therefore. it follows that to

eiisure that the goverliiilent which they created did notl like Frankenstein's monster, turn on

its creator, the people would, as they did, i~nplicitlyretain the right to directly access the

courts to protect and enforce their other constitutional liberties.

'j108 Among others, the people guaranteed unto themselves fundamental rights to due

process of law, to be free from unreasonable searches and sei~ures. individual privacy arid

to

to access and redress in their courts. The best--and more likely, the only--protection that the

people could reserve urlto theniselves to make sure that tlie government. its age~its,

and it1

some cases. ihirir feiiow citizens did rroi outright vioiate or incxorahiy chip away at these

l : 1 , *.

ihcir rigiir to sue directly for these sorts o r iioldtions.

righis, was lo also gua~anlce

ail09 Indeed, if the people had not necessarily retained this right, then there i s nothing to

stop the government from disparaging the peoples' constit~~tional

libwtics and then fixing that

impairment by prohibiting or limiting the people from seeking relief and redress in thc courts.

The goverlimeilt \vould no longer derive from and originate with the people; rather,

government would originate with the government. The people lvould no longer have the

power to enforce and protect their constitutional liberties; rather, they wotrld he dependent

upon the government for that protection and with that, whatever liniitations, restrictions and

impairn~ents government chose to impose on that protection. In short, without retaining

the

the right of direct action for constitutional violations, the core premise under which the

people adopted their Constitution--that government derives from and originates with them--

would, itself. be meaningless, because it could not be enforced.

71 10 For these reasons. I would hold that the people have reserved unto the~nselves

under

Article 11, Section 34 of the Constitt~tionof Montana, the unenin~leratedright to sue their

government, its agents, and, in sonle cases, their fellow citizens, directly in the courts of this

state for violations of their fundamental rights protected under Montana's Constitution.

71 1 1 bloreover, I ~vould

hold that this unenunierated right of direct action for danlages for

constitutional violations is a stand-alone right guarantceci by Article 11, Sectioti 34,

independent of the enumerated rights of access to the courts and to full legal redress

cirjaranteeci

b

Aflicie 11. Section i 6 arid ii~dcpcncientoftlit. right to deknd cinc's Iife cialid

liberties guaranteed by iirticle 11: Section 3. Indeed. .4r-ticie 11, Section 34 unari~liiguons!y

rliakes this distinction in providing that the cnunleration of'certain rights in the constitution

"shall not be constn~ed dcny, impair or disparage others retained by the people."

to

"1 12 111my view. the real efficacy of this Article 11, Section 34 cause of action is to ensure

that the enurncrated fundamental rights are protected from diminution, linlitatioll and

restriction. This stand-alone right o r direct action for constitutional violations would protect

the most basic and most important rights that Montanans enjoy. These are the rights that:

shield . . . each individual from the cscesses of goveri~ment, fiom the tyranny

of the majority, and from the sorts 01-abuses perpetrated by persons, firms,

co~porations, associations, organizations, and institutions that, in pursuit of

their own interests and agenda, effectively would deprive the people of those

things essential to their humanity and to their lawful individual pursuits.

Associictcd Press, 71 55 (Nelson, J.? concurring).

I 3 Keturnlng to Attorney Dahood's arnzcus hr~ef. states:

he

In placing Article 11, Sec. 34 in the 1972 Constitution, the framers wanted to

make clear that it was "crucial" that the judiciary had the power to recognize

unetlumerated rights when rleccssary to protect and secure those ~1;hich are

enumerated. A direct cause of action to protect the specified rights is one of

those "unenumerated rights."

I could not agree more.

1 I I concur in our Opinion. I also beliebe that Montana's Constitution contains within

it's ow11 provisions a heretofore untapped source of authority--Article 11. Section 3 4 -

guarantee~ng the people, by their onn resenation. an unenumeratcd, qct fiindarncntal, right

to

of direct action for corrsliiutiona! vioiarions.

Justice Terrv N. Trieweiler concurs in the for@ ng special; concurrence.

. ~

Justice W. '~Villiarn Leapl-iart, specially concurring.

11 5 A iiiin~bcr the br~efs

of Gled i n this appeal. notlug that the dcputles testrf?ed that they

were "con?mandcd by the judgc" to go seire the property, expressed a concern that officers

should bc protected in the performance of thclr dut~es% hen the) girt: aet~ng reliance on a

1 in

court order I urtte separately to address that concern and point out that the parties did not

specifically r a m , and thus the Court does not address, the question of quasi-judicial

immunity, which is separate and distinct from qualified inln~unity.In doing so, how:ever, I

do not express an opinion as to whether the doctrine of quasi-judicial immunity would

change the result in this case.

?I116 Under our 1972 Const~tut~on, government is not immune from suit unless the

the

enacts a statute by a tmo-thirds bate of each house. Art. [I. Sec. 18, Mont. Const.

leg~slaturc

Pursuant to that pro~ision,the legislature enacted 5 2-9-1 12, MCA, u h ~ c h r o ~ ~ d e s

p as

follows:

Immunity from suit for judicial acts or omissions. ( I ) The state and

other governmental units are immune from suit for acts or omissions of the

judiciary.

(2) A member, officer; or agent of the judiciary is immune from suit for

damages arising from his la~vful discharge of an official duty associated with

judicial actions of the court.

(3) The judiciary includes those courts established in accordance with

Article V11 of The Constitution of the State of Montana.

*I117 We addressed the question of quasi-judicial immunity in Keisn'or:fJ v. County qf

)lellati ctone. 1999 MT 280. 296 Mont. 525,989 P.2d 850. Complaints of animal cruelty had

beer! lodged against Reisdorff She filed a suit for damages claiming that the count^ had

sca~chcdher propcri) u ~ i h o u ther permlssron Kersdorff contended that \\hen the

Yeil~~sioni.

Coultt~

aniinai control officers searched her property and rcrnoved her animals:

thcy were not entitled to immunity because they were not agents of the judiciary involved in

an offictal dut) The an~mal

control officers argued that they acted pursuant to thc justrce of

the peace's orders and were thus entitled to itliniunity. We concluded that the animal control

officers, after asking for and receiling permission to seize the animals. were "d~rectly

implementing the justice court order to: 'Take what steps it deems necessary to bring the

defendant into compliance."' Keisdor-, 7J 30.

71 18 We then explained that the doctrine of quasi-judicial immunity arises from the

doctrine of judicial immunity:

"Quasi-Judic~alImtnunity 1s more limited than the trnmun~ty afforded Judges

and extends only to those acts committed within the scope of the actor's

jurtsdiction and with the authoriration of law. The Doctrine is not for the

benefit of a defendant-actor but rather for the benefit of the public whose

interest it is that quasi-judicial officers should be at liberty to exercise their

functions unfettered by fear of legal consequences."

ReisdorfA 7 35, quoting Turner v. Anlerican Bur Ass 'n (N.D. Texas l975), 407 F.Supp. 451.

$1 19 'The federal circuit courts have explained the policy considerations beliind quasi-

jitdicial immunity. "The fearless and unhesitating execution of court orders is essential if the

court's authority and ability to function are to remain uncompromised." Cover.c/eil v, itepi.

ofSocxd & Hemltlr Services (9th Cir. 1987), 834 F.2d 758,765. Police officers "must not be

required to act as pseudo-appellate courts scrutinizing the orders ofjudges." Vczldez I* Citv

and irotlnr). ofilenver (1 0th Cir, 1989'). 878 F.2d 1285; 1289. Rather, "the public interest

demands strict adherence to judicial decrees." Id-

in

41120 As to officers who rely and act upon a judge's order, there is iiotl~ing this opinion

which abrogates the doctl-ine of quasi-judicial immunity. As we concluded in lieisdor&

"[c]ourts have consistently hcld that officials acting pursuant to a facially valid court order

have a quasi-judicial absolute immunity from damages for actions taken to execute that

order." Reisdorff, 7 35 (citation omitted).

Justice Terry X. Triewcilcr concurring.

",2 1 Frankly, I do not understand the point of Justice 1,eapuphar.t'~concurring opinion and

\\-rite scparate!y to caution the parties and the District Court from attaching too much

significance to it. To do so would only lead to further error, expense and delay before finally

resolving this decade-long dispute on the merits.

7122 First, Justice Leaphart points out that the parties have not raised quasi-judicial

immunity. Then hc claims he has no opinion about its application. One would assume that

\vould be the end of the discussion. However, as if the facts in this case cry out for some

defense, he then proceeds to brief that issue for the parties and tout the policy cortsiderations

behind it.

l j 123 Having read the entire record, including the testimony of the Defendants, 1 can assure

the parties that, Justice Leaphart's unsolicited coaching aside, there is no factual nor legal

basis for the application of quasi-judicial immunity to this case. To test those waters would

only lead to further error, further appeal and further delay. Coilsidering the Defendants'

representations at oral argument about the hardship that protraction of this case has caused

them, that would not seem to be in anyone's best interests.

71124 It is also necessarq to respond to the dissent of Justice Rice. Justice Rice concludes

that statutory iinmt~nityis applicable because Deputy Sheriffs Ames and Caraway acted

under "authority of law" when thcy entered Dol~vart's

house. We, of course, have previously

concluded that there was no statute, court order or prior decision of this Court which granted

that authority. However, Justice Rice concludes that the combination of our 1902 decision

50

i n iint?zse! v. iiurns (iO02j, 27 illorit. 153, 69 P.71 1, and Jusrice of the Peace Marilyn

Knbcr's cornmarid to 'knicr the residence" svere tile "authority of law" necessary to satisfy

the statute. The problem w ~ t h

Justlee Rlce's analysts is threefold. Flrst, neither Ames nor

Carawaq ever heard of Rnr~sej.Second, Judge Kober d ~ not tell erther officer to enter or

d

search Dorwart's home. Third. Ramrey has not been "declared tnvalid as in conflict with the

Constitiltion of Montana or the Constitution of the United States."

'1125 Justice Rice's opiiiion quotes at length from the testimony of Deputy Sheriff Paul

Caraway. However, the quoted portion of Caraway's testimony is out of context and for

put-poses of statutory or quasi-judicial immunity, the most critical portion is omitted. &e

hn

'

asked u hat authority he had to enter Dorwart's house, Caraway gave the following answer:

A. I guess it would be two answers to that. The first would be an order from

Judge Kober, and the second would be Mr. Domart's: the conversation with

him that we had while downstairs ill the Sheriffs Office to enter through the

back door due to the fact that it wasn't locked, and to make sure that we used

the back sliding, I believe it was a sliding glass door.

7 1 26 Houeker, m hen referring to Judge Kobcr's "order," counsel for Domai-t clarified that

uhat he vvas referring to were the writs of cxecution that had been issued. The follo\vtng

question and answer are in the record:

Q. And when you say "order". do 5ou mean by that the t u o Wnts of

Execution that you all were given?

A. Yes, sir.

Q. There was not any separate order?

14. No, srr, there was to mj knowledge, there was txco executions.

Q. You ~ ~ o uagree with me, tvouidn't you, that the writs do not state that you

ld

are to enter a residence and search it?

A. i f you're looking for thosc specifk words i n the writ, i don~t

believe filar

was exactly specified in the writ itself.

;?I27 The only conversation he recalled having with Justice of the Peace Kober was the one

refemed to by Justice Rice during uhich she told him to go to the house and take certaln

property. Hourever. he did not testify that Justice of the Peace Kober advised him to enter

and search the house. On the contrary, when asked the specific question, he gave the

following answer:

Q. Did the subject of entering the house and searching it, was that specifically

discussed with her?

A. With me, other than what I told you where she said go to the house and

take the items -

Q. Okay.

A. -that was the extent of my conversation

4128 Furthermore, Caraway admitted that he knew the law prohibited entering a person's

house without permission or a warrant or exigent circumstances and conceded that an oral

conversation with a judge would not be sufficient to authorize entry into a hornc. He gave

the following testimony:

Q. But you do agree w ~ t h that a court cannot orally authori~e

me entry into a

home, under any e~rcumstances?

A. An oral conversation by itself, I don't believe \vould be enough

9 Nelrher drd Depr~ty Danny Ames rely on a \erbal order from Justice of the

Sher~tf

Peace Kober to enter Donvart's house. Hc simply testified inat he believed hc was authorized

to cntcrprrrsuant to the writ because the writ authorized him to seize property. However, he

was aivare that there was no express authorization in the writ to enter the house. His only

other excuse for entering the house was his conversation with Donvart. Howeler, here is

how he characterized that conversation:

Q. Do you remember what you said to him'?

A. He was hack in the jail, and I held up the writs, told him that I had them.

I asked him if he had the money in order to pay the writs, I forget the amount,

it was over $1000. He said he didn't. I told him that I was going to have to go

to his residence and seize the property.

During the conversation. he told me to go ahead and use the back door because

you didn't need a key to get in the back door.

Q. He said that after you told him you were going to hale to go there to ser7c

the property?

A. Told hiin we were going to have to seize some property

(2. Did you tell him you were going to hate to go in the house to seize some

property?

A. I would imagine I did, beeause he told me that use the back door

Q. Okay.

And 1ou were holding up the writs when you said that?

A. Yes, I s h o ~ e d the wits.

him

Q. Did you explain to him that you had to seize property because of these

writs, or do you rerneniber if you said anything about it?

A. 1 belleve that's \\hat I bald, as if he didn't haxe the rnoneq, then I had the

court orders, and that according to the court orders, if he couldn't pay for them.

that 1 had to seize thc property to be sold in order to justify-of- pay the w i t s

off.

Q. And then tcII me again. as hest you can remember, what he said back? 1

knou- you have answered this once, but I-

A. Sure. I don't knou the entire conversation. I do know that it was, you

know, use the back door, you don't need a key to get in the book [sic] door.

Something was said about the side door being locked, and then also he said

something about be careful, he had a cat in the residence at the time, make sure

that u e didn't let the cat out.

7130 Ames conceded that he primarily ~nferred

permission from Domart because w hen he

told him he needed to go to his house and seize his property and had writs authorizing him

to do so, he did not spccifically object to him doing so.

?,I31 Caraway admitted that he had no separate conversation with Dorwart and he admitted

that neither lte nor ,41nes asked Dorwart for permission or consent to enter the home and

search it. He testified:

Q. Neither you or Danny asked Russ for his permission or consent to go in the

home and search it; is that right?

A. Specifically, no.

Q. And it was at least implied to Russ that the Writ of Execution-that under

the U'rtt of Execution. you all were going to go into the house and s e i ~ e

property. period?

A. Dan specifically told him we will have to execute this ~vrit

and seize

propel-ty--

A. -to satisfy this judgment.

"1/ 32 -4s far as the conversiltion with, Justice of the Peace Mariiyi Kober. Danny Ames

testified:

Q. Before you and Pard \vent out to Russ' house on April 1 lth, '91 ;did you

haw; yorirself ham any conversations with Justice ofthe Peacc Marilyn Kober

about this?

'4. There was a conversati011 that went on, I believe it was between Sgt.

Caraway, Paul Caraway and the judge, and I was there. I don't remember any

of the conversation. I vaguely remember a conversation, but I couldn't tell you

what rhe conversation was about.

7 133 Therefore, two people directly intolved in the entry of and search of Domart's home

have either testified that they were given no specific direction by Justice of the Peace Kobe1

to enter and search the homc or do not remember the conversation with Kober at all. This

is hardly a basis for stattitorily immunizing someone who violated a fundamental right under

the constitutions of Montana and the United States.

7134 Nor is the persistent effort to find shelter in Karnsey persuascve. When asked the

follouing question, C a r a ~ a gate the following answer:

y

Q. Prior to going into Kuss Donvart's home on April 1lth, whatever it was,

April of '91. had anyone told you that Montana law authorized entry into a

homc and search and se7i.c property under a Wrtt of Execution?

A. Specifically in those words, I can't-it's hard to answer yes or no. I know

I had been told under .Montana la\\, that you have to follow the orders of a

judge; that you're obligated to follow the orders of a judge.

I gtcess when you word it like you worded it? the answer--[ don't have an

answer for that. 1 mean, 1 can't say specifically that they had told me that.

TI35 A ~ n e testified as follows:

s

Q. And no one had ever said that the la\.; in Montana ailows you to do this, io

-

eo into a home under a h'rit of Execution'!

'4. 1 guess 1 would---[v;ould-l can't really say that anybody ever said those

specific words.

7110 in fact, Ames clearly test~fiedthat h ~ rellance \+as only on the

s writ and what hc

inferred mas Dorwart's permission to enter his house. He stated:

Q. Other than your position that you had consent and your belief that the writs

themselves authorized you to go in the house, do you believe there was any

other basis to go in the home and search it?

A. With those two that you just got done telling me, no.

7137 All of this testimony brings us back to the original point made in the majority Opinion.

There was no statute authorizing Caraway and Ames to enter Donvart's home. There was

no decisional law which allowed an 11i\asion of his privacy pursuant to a writ of execution.

The \wit of execut~on

itself did not authori~e

entry into and search of Domart's home and

neither did anything that was said by Justice of the Peace Kober. Therefore, there simply was

no basis for the application of statutory immunity.

1.1 It is clear from the entire context of the deputies' testimony that they have justified

38

thelr cntry Into and search of Donvart's home and selzurc of his cxernpt property for two

reasons. First, they contend the writs autliori~ed

them to do so. Howc\er, me have now held

twice that thcq d ~ not. Second. they contend that Dorwart gave them pemiission to enter

d

and search his homc. Howe\icr, it IS clear that he did not. He was never e\cn asked for 111s

pei-m~ss~on.

ql t 30 To suggcst that some\v.;hercin il-iis series ofuninformed mistakes, there lies ti defense

such as quasi--judicial or statutory immunity is a disservice lo the Defendants, thosz who are

ad1;ocating on thcir behalf? and law enforcement in general who uill surely repeat the

Defendants' misttikes if encouraged to do so based on misinformation.

q140 While none of the a b o x is appropriately included in the official Opinion of the Court,

I do conclude it was necessary to clarify the record and respond to the suggestions of Justices

Leaphart and Rice.

Chief Jrisrice Karla M. Gray. dissenting

al14! I Join the Court in l-iolding that a cause of action h r m o n q danlages is available in

Montana for violations of the rights to privacy and to be free from unrcasnnah!e scarches and

seizures guaranteed by A~licle Sections 10 and 11 of the Montana Constitution. For the

11,

reasons discussed at some lcngth below, I dissent from the Court's discussion of--and holding

on--due process. I also dissent from tho Court's holding that the defendants in this case are

not entitled to statutory immunity pursuant to 5 2-9-103(1), MCA, and, to that extent, join

Justice Rice's dissent. I also join Justice Leaphart's tlzoughtful discussion of the doctrine of

quasi-judicial immunity. Finally, because I would hold that the defendants have statutory

immunity, I would not address the remaining issues resolved by the Court.

7142 Regarding due process, the Court begins at fi 20 by stating that we "n~istakenly

omitted remanding [Dorwart's state constitutional right to due process claim] to the District

Co~trtfor further consideration" in Dorwurt 1. As the author of L)oiwart I, and

notwithstanding the appellants' one conclusory statement in their opellillg brief that "the

claims that remained at issue [on remand after Dorwcirt I] \%-ereDomart's claims of

violations of the Montana Constitution's . . . right to not have his property taken without due

process of law," the record does not support this proposition.

'1143 The record in this case relating to Dorwart's due process clainis begins with the First

Amended Complaint. Therein, the plaintiffs began by generally alleging a claim for money

damagcs for violations of constitutional and common law rights. and a claim for declaratory

58

jt:cigrnent and injunctive relief regarding whetlier the statutes at issue violatcd due process

uadcr both the federal and state constitutions. 'l'hc plaintiffs the11alleged. inter alia; tilrce

duc proccss c!aims: 1) the 'ii~irdCause of Action alleged a violation b y tlrc defendants of

the right to due process iinder the hlontana Constitution, resulting injury and a request for

ntonetary damages and fees; 2) the hinth Cause of Action alleged a violation by the

defendants of due process under the United States Constitution, resulting injury, and a

request for compensatory and punitive damages; and 3) the 'Tenth Cause of Action sought

declaratory and in,junctive relief on due process grounds, alleging irreparable i n j ~ ~ r y

in

support tliereof.. The District Court ultimately entered summary judgment for the defendants

on all of plaintiffs' claims--expressly i ~ ~ c l u d i theg Third Cause of Action, the alleged

~i

violation by the defendatits of the Montana coiistitutional right to due process--except the

plaintiffs' claim for declaratoty judgment and injunction.

!/I44 In tltis latter rcgard, however, the District Court created some confusion by granting

the plaintiffs partial sum~nary

judgment on the "ninth cause of action," expressing its ruling

as a determination that the stcrtuter at issue violate "state and federal due process" and

enjoining the County from levying writs of execution against plaintiff Russell Edward

[)orwart without appropriate notification. In other words, having first determined that the

defendants \<'ere entitled to sumrnary j~rdgrnenton (111 claims except that for declaratory

j~idgtncntand injunction: it then niisstated the plaintifCsl Ninth Causc of Actiori as oric

alleging both federal and state due process violations, determined those violations to exist

via thc unconsiitutioria! statutes, and grantcd--as it stated it woiiid--stlmmsyjudgn~ent ihc

lo

plaintiffs on their request i j r injulictivc relief, tvithout characterizing it as tl-~i:

plaintiffs'

Teat17 Cause of ictio!~.

7 4 5 Tl-rc plaintiffs filcd a notice of appeai from certain portions of the District Court's

Met~lorandumand Order, including those portions granting the defendants1--and denying

their--motion for summaryjudgment on their Third Cause of Action (statc constitutional due

process claim) and Nintlt Cause of Action (federal constitutional due process claim). 'The

defendants cross-appealed the District Court's grant of partial summary judgment to the

plaintiffs on their declaratory and injunctive relief claims.

7146 The plaintiffs' appellate follow-through, if any, regarding either the Third or Ninth

Cause of Action was hardly a niodel of clarity. In the due process section of their brief on

appeal--which exceeded 25 pages in length--they contended in 3% pages that due process

was violated even ifthe challenged statutes are constitutional (atbest, a murky argument with

regard to the Third Causc of Action). In that portion of their brief. the plaintiffs correctly

noted that the District Court separated their due process claims i11 a manner not entirely

consistent with the causes of action asserted, contended the separate due process claim that

the defendants violated the statutes was "an alteniative claim in the event the challenged

statutes were found to he constitutional," and argued that the trial court's conclusion that their

property was not taken in violation of due process was inconsistent with its conclusion that

the statutes were unconsritutional. The plaintiffs ihen specifically statcd as follows:

it \vould appear that, if the statutes 2ii.e unconstitutional, then Dorwart's

property was laken irr vioiation of due process, n11drite cliiinr qfci clue process

vioiitiicj,, b(i.cedopt vioiuiing iiiose sizinc .srcrtu/e.s ivoitid he itioor, in tire cverri

?/?isGozrrf does ~ l ufind f/:t!scslatutes ~ri~rorzstiiutioiilri, i)oi-ii~ii,-i

f rlicr? risserts

his chrc process cicriitz that rlze starufe.~ \vet-e violufecf.

(E,niphasis added.) Thc remainder of tllc plarnt~ffs'

duc process arguments durrng thc first

appeal conststed of a discussion and analqsis captioned Duc Process bras Violated Because

the Challenged Statutes are L'nconstitutional, running more than 20 pages in length, which

argued in support of the District Court's conclusion that thc statutcs at issue \vcrc

unconstitutional. Indeed, it ended by enun~cratingthe

various reasons the statutes violate due

process and concluding that "[tlhe district court's analysis and conclusion on this issue is

couucct." In other words, the plaintiffs'bricf regarding due process was largclj a pre-ernplive

strikc against the anticipated cross-appeal argument that the trial court had erred in

determining that thc statutes were unconstitutional.

7147 We stated the due process issue in Dorwart I as follo\vs: "Did the District Court err

in dctermining that Montana's post-judgment execution statutes are unconstitutional because

they do not provide the procedural due process of la\\, required by Article 11, Section 17 of

the Montana Constitution and the Fourteenth Amendment to the United States Constitution?"

Oorrvurt I, 1;62. In our discussion, me followed both the trial coutt's and the plaintiffs' lead

in addressing tlie constitutionality of the statutes, ultimately concluding that the statutes are

~:nconstitutional

because "they do not provide the procedural due process of law required by

Artielc [I9 Section 17 of the Montana Constitution and tllc Fourteenth Amendment to the

United States C:onstitution." See I)ori~.urf u(l] 03-lif3. impiicitiy agreei:~g nillu ihe

/,

plaialiffs'argumc~~~ the due process question wit11 regard to thc ~ f f i c c r s ~ i i l i ~ vio13ii0i1

that gcd

of the statutes would be moot if we dctcrniined the statutes to he ucconstitutioiial, we

properly did not addrcss that issue, In retrospect, our opinion could have bee11 more clear.

In any event, we held the statutes unconstitutional under the due process provisions of both

the federal and srate constitutions. Because we properly did not address whetlier--or

conclude that--the officers had violated the statutes, we also properly did nor remand for

further consideration of a constitutional claim against the officers. The Court is simply

wrong in concluding otherwise.

5118 Moreover, in advancing its notion that we "mistahcnly omitted remanding" on the due

process claim against the defendants themselves, the Court fails to take into account both the

availability of a Rule 34, 'M.K.App.P., petitioli for rehearing and the fact that the plaintiffs

availed then~sel\.esof the opportunity to file such a petition after our decision in Ijorwart I

was issued. The first section of that petition argued that we had erroneot~slq-

stated that they

did not request monelaty damages as part of their federal due process violation and tied the

request for monetary damages for the federal due process violation to the issue of the

defendants' entitlement to qualified immunity. It ended wit11 the statement that "Dornrart's

due process rights were clearly established and Ames and Caraway should not be entitled to

qualified immunity." Nothing in that portion oftl~eplaintiffs'

petition forrehearing requested

any change in the extent of our remand to the District Court on the iiuc process issue.

7 149 7hc second section of the petition for rehearing did, however, reqtrest that the stare

law due proccss constit~ltionaiclaim--that is, the piainriffs' Third Cause of Action--be

remanded to the District Court. After objections to the petition by the defendants, and

responses izrniii curiiie, tvc issued our order o11November 12,1998, withdrawing the original

'j 103 from our August 4, 1998, Opinion, and replacing it with the ! 103 which now is part

j

of the opinion in Dor$t.artI and which is discussed above. We denied the plaintiffs' petitio~l

for rehearing in all other respects, including the requested remand on the Third Cause of

Action. Three of the menlbers of our current Court, including myself. signed the order. Two

others, including the author of the Court's opinion in tlris second appeal, nored on our order

that they would deny rhe petition for rehearitlg outriglit. My point here, of course, is that the

plaintiffs requested a remand of their state constitutional due process claim in their petition

for rehearing ini)o~?tucr,-tI,and all members of the Court denied that request. I n light of this

record, it is bcyond imagining how the Court can now state that we mistakenly omitted such

a remand in the earlier appeal.

3150 The record and logic aside, the law of the case doctrine clearly prohibits the Court's

renland of the state constitutional due process claim at this point. Under that doctrine: an

earlier decision by this Court resolving a particular issue between the same parties in the

same case is binding and cannot be relitigated. Ciilcnferrir v. 12ilontuniiResources, 2001 %fT

193,y 10,306 illont. 249.7 10,32 P.3d 764: 9 10 (citation omitted). We addressed the due

process issues between these parties i n L)oru'(zriI. and even expressly rejected the rernand

now determined to be appropriate by the Court. Quite clearly, the purpose oflhc i a n oftile

case dcctrinc--"to promote judicial economy and prevent the never-ending litigation of a

single case"--and its long jurisprudential basis in Montana (see Cnlenterrii, "j0) are no

longer of interest to the Court. 1 would apply the doctrine and he done with the due process

issues in this case which began more than 10 years ago.

71 5 1 Justice Nelson gamely atteinpts to defend the Court's failure to apply the law of the

ease doctrine here, but the defense falk far short. He quotes at length from Zirtzrnevrt~c-tn

in

support of an exception to application of the doctrine where the court is correcting a

"manifest error" in its former opinion. Justice Nelson then fails to apply the Zinztnero~~ntz

rationale to the present case.

1 152 As discussed at length above, there was no manifest error in our failure to remand on

the plaintiffs' Third Cause of Action. Nor does the Court address the issue as correcting a

manifest error. Indeed, the Court merely "decidesN--some four years later--that we

mistakenly failed to ren-rand on the Article If, Section 17 claim.

TI53 Silililarly, Justice Nelson's point that the law of the case doctrine is limited to issues

actually decided is generally corrcct, but also of little help here. As discussed above, the

plaintiffs asserted during the first appeal that the state constitutional due process cause of

action would be moot if M-e

upheld the District Court's conclusion that the statutes themselves

were unconstitutional. We uphcld that conclusion; to say that we "ignored" the issue is

~ ~ h o l inappropriate in light of the procedural atid decisional record in this case and,

ly

rnorcovcr, it atlows the plaintiffs to entirely changc their argument on the point during this

second appeal. in addition, of course, wc denied the plaintiris' pctition for rci-learing which

sought prccise!y the remand thc Court has now decided was "mistakenly" omitted inDorwnrt

I. Thus, the issue of a remand regarding tile Third Cause of Action has been "actually

decided" and cannot properly be revisited now.

71154 Finally, the Court also specifically concludes that "a direct cause of action for money

damages is available for violation of the Plaintiffs' rights guaranteed by Article 11, Section

17 of the Montana Constitution . . . ." The Court is again in error, for several reasons.

'1155 First, as discussed above, the due process issues in this case were resolved in L)ol-i.vart

I on the District Court's conclusion that the statutes at issue were unconstitutional, this

Court's affirn~anceof that conclusion and our denial of the request for remand in the

plaintiffs' petition for rehearing. Second, the Court's conclusion that "adireet cause of action

for money damages is available for violation of the Plaintiffs' rights guaranteed by Article

11, Section 17 ofthe Montana Constitution" is not supported by the "self-executing" analysis

it applies to the rights of privacy and to be free from unreasonable searches and seizures

under the Montana Constitution. In other words, the Court has improperly--and only very

indirectly--applied that analysis to the due process claim.

1 156 Let me be clear: 1agree with the Shields/Biverzs analysis the Court applies to the issue

1

of tlte existence of a constitutional cause of action for violations of certain constitutional

rights. it is my vie-;;;: however, that that analysis dues not support a consritutional cause of

action for I due process violat!on in the present case.

:

'157 The only casc to which tlre Court cites with regard to thc ability to recover money

damages for violations of the constitutional guarantee of due process--albeit under the Fifth

Amendment--is the United States Supreme Court's decision in Davis v. Passnzan. Davis,

ho~vcver,

was not a "pure" due process case under the "nor be deprived of life, liberty, or

property, without due process of law" language of t1.x U. S. Constitution, which is nearly

identical to that in Article 11, Section 17 ofthe Montana Constitution. Rather, Davit involved

a gender-based discrimination claim brought pursuant to tlic Fifth i2mendment's right to due

process by a Congressional staffer against the legislator for whom she had worked. The

Supreme Court relied on its cases interpreting the Due Process Clause as i~leluding eyzial

an

protectiorz component, and allowed the cause of action to proceed. Davis, 442 U.S. at 234,

99 S.Ct. at 1471. Thus, Davis is not at all analogous to the present case, and does not support

the Court's col~elusion

here.

1158 Moreover, the Court's reliance on LS'l~ields more notable for what it does not disclose

is

&out that case than for what it does. I agree entirely with the Court's statement that Shields

not

"held that a general provision guaranteeing a right to cnjoy life wMias self-executing but

tkat the specific guarantee of a right to free speech was self-executing." (Emphasis added.)

The statement itself clearly invites the question of w.hat distinguishes a self-executing from

a non-self-executing constitutional provisioil, a question the Court ignores but LY\licidc.

9 -

The S/lieldr cotrrt bee~ns quoting as follows from the Lnitcd States Supreme Court

by

decision in Davis v. Burke, a case relied on by most jurisdictions in determining whether a

provisiolt is self-executing:

state const~tutional

A constitutional provision may be said to be self-executing if it supplies a

sufficient rule by means of which the right given may be enjoyed and

protected, . . . and it is not self-executing when it merely indicates principles,

without laying down rules by means of which those principles may be given

the force of law . . . .

In short, if complete in itself, it executes itself.

Sizields, 658 A.2d at 928 (quoting Davis v. Burke, 179 U.S. at 403,Zl S.Ct. at 212 (citations

omitted)). The Shields court went on to state that

[d]etcrniining whether aprovision supplies a sufficient rule entails application

of certain relevant criteria, no one of which is dispositivc. First, a self-

executing provision should do more than express only general principles; it

may describe the right in detail, including the means for its enjoyment and

protection.

Shields, 658 A.2d at 928. The court then proceeded to apply those, and other. principles in

prot ision guaranteeing a nght to enjoy life is

determining that the Vermont const~tutional

not. as the Coclrt properly obscrles in the present ease, self-executing, but that the

constitutional right to freedom of speech is self-executing. Shields, 658 A.2d at 928-30

%I160 The Court performs no Shields analysls here ntth regard to the const~tutionaldue

process cause of aihon. and !submit that such an analysis t\ould produce a result opposite

tiom that thc C 01112 reaches i n other words, the Art~cleii, Section 17 due process rlgkr

clcarl) is not self-crccuting for purposes of supporting a constitutional cause of action for

money damages.

7161 Moreover: our cases standing for thc proposition that due process is a flexible concept

which should be tailored to the circumstances of each case are legion. See, e.g., Stare 11.

Hagetz,2002MT190,!' 13,311 Mont. 1 1 7 , ~ 1 3 , 5 3 P . 3 d 8 8 5 , f i13;111reB.P.,2001 MT

21") ?r/ 31, 306 Mont. 430,lI 31, 35 P.3d 291, f 31; iblcLlennott v. hIcDotiald, 2001 MT 89,

7 lo, 305 Mont. 166,l 10;24 P.3d 200,1\ 10; Pickens v. S/~elton-Thorrzpson, MT

2000 131,

7 15, 300 hlont. 16,q 15, 3 P.3d 603, 71 15; .Jellisotl v. iVfalzotzey, 1999 MT 217, 7 8, 295

Mont. 540,: 8,986 P.2d 108") ,1/ 8; SniifIt V . Ijoclrd qfHorse iiaciizg, 1998 MT 91,T 11,288

Mont. 249, 1 1 1 , 956 P.2d 752, 1 1 1 . In light of both Sliields and our cases, it is

inconceivable to me that aprivate constitutional due process cause of action can exist which,

among other things, would inlproperly permit ajury to deternline the constitutional andever-

flexible question of what process is due.

1162 I understand the Court's desire to breathe life into the prov~sions the Montana

of

Constrtutron. Where that desrre properly can be pursued under the law. I support it. For all

the reasons stated herein, I cannot support any portion of the Court's analys~s the due

of

process issue. 1 dissent.

T i 63 I concur with iliis Court's iiecisioii on Issue 1. rhai Ariicic ii:Scclions 10 and I I of'

the Montana Constltutton are self-executing. and proi ide the basls for a rlgllt of act:on for

damstgcs for violation thereof. Regarding the Articlc 11, Section !7 claim: I join Chief Justice

Gray's dissent. I respectfully dissent from thrs Court's determination on lssue 2 that the

Defendants arc not cnt~tled statutory tmmumty pursuant to 3 2-9-103(1), MC.4. Based on

to

the plain Iangl~ageand plain meaning of the svatute, I would affirm the District Court's

coneluston that the Defendants are ent~tlcd immunity thereunder and. therefore, \x ould not

to

address lssue 3 or Issue 4.

2-9- 103(1), 'L1C.2, declares:

r164 Sect~on

If an officer, agent? or employcc of a govcrnrnctital entity acts in good faith,

without malice or corruption, and under the authority of law and that law is

subsequently declared invalid as in conflict with the constitution of Montana

or the constitution of the United States, neither he nor any other o"ificer or

employee of the governmental entity he represents nor the governmental entity

he represents is civilly liable in any action in which he. such other officer, or

such gavel-nmental entity would not have bcen liable had the law been valid.

1'165 First. to be entitled to immunity, the officers must act in good faith and uithout malice

or corruption. F considering the statute, the Court does not address the officers. intent or

n

motlvatron. The record reveals that Officers Ames and Caram~aq,

upon rccening the writs

of execution. and prior to serving them, conferred :vith Judge Kobcr in order to clarify their

duties, and receivcd instrrrctions from her, Thcrcaftcr, they also spoke with Dowart himself,

and receiveci instructions from him regarding entry into his hornc. The District Court found,

as we dici i n Z>oi.wiiri i, illat rile officers ""wcre acting on a rea~nnabic~

good faiiirh

understanding of the law," and. applying rile statutory definitions o f ""con-upliy" and

"malice," found that neither officer ""had a 'mrrongful design to acquire or cause sonic

pecuniary or other advantage' to thentselvcs by their actions? Itor did they '\vish to vex,

annoy, or injure' I>or\rart by their actions." I co~~elude District Court's findings arc

the

correct, and that the statute's requireincnt that the officers act in good faith, without malice

or corruption, was satisfied.

7166 Second, the statute requires that the officers {nust act "under authority of law."

Dorwart and ilitticiis Montana Trial Lawyers Association argue that there was no statute,

court order or court decision which granted Defendants authority to enter Dorwarr's homc,

and therefore, Defendants were not acting under authority of law. Domart challenges the

District Court's reliance on Runlsey v. Burns (1 902), 27 Mont. 154> P. 71 1 in concluding

69 ;

that then-existing law supported the actions of Anics and Caraway.

7 167 At the times in question here, Rcrn1.se.y was the only Monrana case interpreting the

scope and authority derived from a writ directing a levy on property. In executing a ~vrit

of

attachment in Kcz~~z,cey, officer entered Kamsey's business and levied upon her personal

the

property, remaining in possession of the business for five days. Rarnsey subseqnentl~~

sued

tltc officer and, after a jury verdict against him, the officer appealed a jury instruction which

stated that an officer with a writ of attachment "has not any right or authority to take and hold

possession of any building in which the personal propcrty to bc scizcd is, and that he and his

. ~-

bondsmen are liable in damagtis ' i r he takcs possession ofsuch room or premises."' Rlirtisgy,

"168 T h ~ Court determined the Instruction to be error. statlng:

s

An officer has the right to enter a business place against the will of the

occupant, permission having been asked arid refused, and to seize the property

therein belonging to thc occupant and sub,jeet to levy. . . . The officer has a

right to enter and havc possession of the place . . . for a reasonable timc. and

he may have there the goods in storage for such reasonable time as he may

require to pack them and to procure the necessary transpoftation for their

removal.

Kunzsej,, 27 .Wont. at 150-57, 69 P. at 712. K n n ~ ~ e j , never been o~erruled was the

had and

residence in 1901

state of the Ian at the timc deputies Ames and Caranaq entered Dor~bart's

ro execate on the writs of execution

1 6 Although Kam.rej~did squarely address the constitutioilal search and seizure issue

not

relating to a writ of execution or the scope and authority of a nrit in the context of levying

personal propert) at a person's residence, t h ~ s I,

Court stated in I)or\+~izrt that "[w]hile

Knm.sej~did not address or resolve whether such as1 entry would survive constitutional

scrutiny, it cer~ainly

appeared to authorize an official acting pursuant to a writ directing the

l e ~ y a person's property to enter and take possesson of the premlses

on 111 n h ~ property

h

subject to execution mas located in order to effectuate the execution cbithout the ncccssitq of

a warrant." Don4,irl.t 1,1' 100. We further concluded titiit "'the deput~es

entered [>orwart's

home to execute the writs of execut~onaccording to procedures whlch appeared to be

appropriate under then-existing Moiltana law . . . ." L101-1vurt ,

I ' 126.

7 that Rarn,rei*renrai-ied a

Foilowing this Court's iead. thc i)istrict Court iiciiri~mineil

potential source ""of authority oii which to base a eonciiisiori that Amcs and Caraway did not

tolate Dorwart's rights \+hen thcy cntcrcd hls home " The Dlstrtct Court determined that

the "then-existing labv supported the actions of Amcs and Caraway in the manner that they

executed the w i t s of execution. . . . As required by ij 2-9-103(1); MCA, the deputies \?:ere

acting under authority of law."

1 7 The majority faults thc District Court's determination that Ames and Caraway acted

upon lawful authority because the testimony of Ames and Caraway does not demonstrate that

either specifically knew of Knmsey, but that the officers nierely "relied upon !he writ of

execution and Dorwart's admonishment to use the back door and not let the cat out."

1172 It must first be noted that, in addition to the writs and the conversation with Dorwart,

1

thc deputies also relied upon an order from Judgc Kober to s e i ~ the property to satisfy the

e

writs:

Q: [by Mr. Thomas]: [Wlhat, in your mind at the tin-ie, was your authority for

entering the home and searching it?

A: [by hfr. Caraway]: 1 guess it would be two answers to that. The first would

be an order from Judge Kober, and the second would be Mr. Dorwart's, the

cortversatio~iwith him that we had while downstairs in the Sheriffs Office to

enter through the back door due to the fact that it wasn't locked. . . .

Q: Any other basis besides those two'?

'4. Just niy obligation as a deputy to follo~x~ orders of the judge and of my

the

departnient.

Q: tl:erc there any cot~versationshetwecrr you or Danny Amcs or Sheriff

Brophy, for that matter, with blarilyi Kober before goiiig out to Kuss

Dorwart's liome in serve thc wriis?

.4: Yes, there was.

Q: Can you remember hot\ long before actually gorng out to 111s house that

conversation bas?

A: No, I don't. I know that we did have the papers to serve, and there was a

question about what were we supposed to do. l h c papers were - tliey were

unique to m e . . . . And it appeared to me that Dan had some questions about

it too. We came up, and we spoke to Marilyn [Kobcr] here in her office. And

the papers stated to seize property. . . . I know 1 asked her, you know, what

does this mean, what does this go and seize property to satisfy this monetary

amount, whar does this mean. She said to me, yo11 go to his house; you take

guns, stereos, whatevcr is there you think \\-ill satisfq-this monetary amount.

Q: LVould it be correct to say that at least at the time these writs were semcd,

and the entry and search was made of Russ Dorwart's home, the primary

concern of the Sheriff's Department was to try to seize enough property to

satisfy the writs, a i d not whether Russ Dorwart had ally rights that miglit be

violated by doing this?

A: I would think that you would be incorrect in that assumption. I think that's

why we had the conversation with the judge, was to make sure that we were

doing things as the law allowed us to do . . . . 1 think otherwise, we would

have went up and served the papers without any question or any conversation.

I think we were concerned that we were legally doing things.

Q: 1 gathered from this ease that you believed that the Writs of Execution

authorized you to enter into Dorwart's residence and search for property and

seize property to satisfy the writs; is that correct?

'4: [by Mr. Arnes]: Right.

'1173 'The deputies, \xrantlng to be ccrtaln that the t t r ~ t s

thenisel\es grantcd authority for

them to enter Dorwart's prcmtses and selze 111spropert!, personally requested \ertficdtron

from ir:dge Kobcr and were commanded by Judge Kokcr ("you go to his housc; ycru lakc [his

propcr-tyl') to enter the resicicnce and S C ~ L C D o r ~ v a I ? pmpci1). 011

'~ the basis of the iiri'i's

authority.

!;174 But more significantly, the Court improperly faults the deputies' inabi!ity to cite to

Montana case law. The immunity statute docs not require that Ames or Cara'Lvay be able to

cite to a 1902 Montana case that gave them authority to enter the premises in order to ohtain

immunity. The statute requires only that the officers '"act . . . 1111der authority of law.-

the

Thus, if they acted under the authority of law, that portion of the immunity statute, by its

plain meaning, is satisfied. The District Court was corrcct when it agreed with this Court's

cotlclusiorrs in I3orit~art that liaiilsq appeared to a~ithoiizc deputies' actions at a time

I the

when "it certainly was not clear. . . that their actions violated Dorwart's search and seizure

rights and right to privacy" and that the officers' actions "appeared to be appropriate under

Nnm.ce~: the current state of the law in 199 1 when

then-existing Montana law." Reca~tse was

the deputies executed the writ of execution, the deputies acted "under authority of law," thus

satisfying the second elernent under S 2-9-103(1), .MCA.

:/I75 The third requirement for immunity under 8 2-9-103(1)~MCA, is that the law rnltst

suhseq~~ently declared invalid as in conflict with the C:onstitution of Montana or the

be

Constitution of the United Statcs. The nmjol-ity again faults the District Court because this

Court in Dor-it*iwr I did ]tot dcclarc that the postjr~dgment execution statutes were

unconstitrrtional for. authorizing entry into Dorwart's horne. However, such a finding is not

-,

necessary il: order to conci~tde a t the depunies arc ciitiricd to immunity under 5 2-9-1 3 i 1:

h 0

3ZC;i. The statute mcrcly requires that the 1ii.i~ had providcd authority for thc di-puties'

illat

actions be subsequently declared invalid as in conflict with either the Montana C'onstitulioii

or the United States Constitution.

,176 CVhile the Court in lIonvar%I did not declare either Renzscy or the postjudg~ncnt

execution statutes unconstitutional, the unmistakable result of the adoption of thc procedural

requirement of an cxecution warrant in Dr,ir-bt,,(zi.f is that R(i~rrsey no longer be a valid.

I can

potential source of authority for an official acting pursuant to a writ of execution to enter a

person's property or take possession of thc prcniiscs in which property subjcct to execution

is located, and to effectuate the cxecution xvithout the necessity of a warrant. Thus. although

this Court did not explicitly declare Rn~?~sey

invalid or unconstitutional, Rur)isej*isno longer

valid, as it was in 1991, when it provided authority for officers to enter and levy upon a

judgment dchtor's personal property.

71 77 Under the plain language of 8 2-9- 103(1), MCA, thc deputies must act under authority

must be "declared irzvalid as in conflict with the constitution of

of law which subseque~ltly

Montana or the constitution of the Gnitcd States." In adopting the cxccution w-amant

requirement as a procedural safeguard, this Court in 13oriva:itrf I implicitly declared that

Rnntscj~ no longer a valid source of authority for An~cs'

was and CIara\vay's actions.

a178 Based on the foregoing, I u;onld co~iciude the siatutory requircinents h a w been

that

pursuant to 5 2-9-

ciearlq- met and that ,imes and Caraway are entitled to statutory intm~mity

1 O i J i1. .Llt:A, and would aft7rnl thc 1)istrict Court's holding.

7 1 7 9 i i n sum, 1 corrcltlde that, after its s~~bstantial

aiid~~biercview issues raised herein,

ofthe

the District Court correctly ruled tliat a right of action exists for the constitutional violations

at issue here, but that the officers under these circumstances were shielded from the claim

by statutory immunity.