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No. 01-190

iZUSSCl.1. EDYIRL> DORWART and HARRY DORWRRT~

<a ;
Plaintiffs, hypcllants and Cross-Respondents, v.
.

"""X

6;

i! t"P *.>.:.

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, District Court of the Twenty-Second J~ldicial 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 For Respondents Steven R. Milch, Crowley, Haughey, Hansoii, Toole & Dietrich, Billings, blontana For Arnicus hlor~tana Trial Lawyers Association: t,avrence 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:
Wade Dal~ood, .4ttorncy at La\, Anaconda, k4ont.m

Office, P C., Red Lodge, Montana

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 73

The issues on appeal are:
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

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

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 18,19911 Dorwart 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 Dorirai-tand Harry Dom-ai?, filed acvinplaint

in which Caraway, Ames, Broplly and the Co~lnty Stiliwater were named as defendants. of Russell resided. The Plaintiff Harry Dot-wart owned the home in v~hich

'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 Constitution. They also clain~ed damages pursuant to 42 U.S.C. $ 1983 for violation of their rights guaranteed by the Fourth and Fourteenth Aniendments to the United States Constitut~onand alleged a right to damages for common lam1 trespass and conersIon. Pla~ntiffs cla~m the) 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. fees %,erealso denied.
718

1983. Dorwart's claims for attorney's

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

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

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

Court's decision constitutional rights based on the Restatement of Totts, the U.S. S~iprerne

in Nivens v. Six U~i?f:nowti ,Vc'rrrcotics Agertrs jl971), 403 I1.S. 388, 9 SS.Ct. Fed. 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 to case. Pursua~~t the general rule that prevailing parties in civil actions are not entitled to attorney's fees absent a contractual agreement or expressed statutory authority and because attorney's neither was found in thls case and no speclal circumstances bere found to ex~st, 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
4 (citations omitted). 1 party seeking summary judgment must establish the absence of any

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

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 twentyfifth state by federal courts and four states have enacted statutes which authorize causes of
11

action for violation of state constituttio~lal rights. Scvcrr siates have specificaliy rcjecicd stcrtie 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 Michigan, N c ~ v Jersey, New California, Illinois, Louisiana, %lularyla~~d, 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 to highest court. In addition, subseyue~it the court of appeals' decision in 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 recognized rights of noted that this list does not includc statcs which l~ave 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 use u arrest and for the agents' t~nreaso~table of force. That compla~nt a s dismissed by the 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 admission is granted, admission to another's house. But one who d e m a ~ ~ d s 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.
737

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.

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

r~ghis, varlous analyt~cal models h a w been employed. in Vermont, of state eonst~tutional
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 guarantee of right to free speech was enjoy life was not self-executing but that the spec~fic 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

could recover damages for the biolation Court of '4ppeals considered whether the plaint~ff 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 precedent establ~shed the kngl~sh by 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 aailable to him remedies under state tort law, a cause of action for kiolation of constitutional rights should the not be recog~iired, hlaryland court stated: 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

concluded that the plaintiff in that case could bring a cause of Supreme Court of Louisial~a 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 twopart analysis employed in .-ermont, have concluded the statc constitutiollal rights in those to states to be free from cruel and unusual punishment, equal protection and the r~ght be free 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
summary of how other states had resol~ed this Connecticut decision proLidcs an esccllel~t 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

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

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: entity acts in good If an officer, agent, or employee of a go~.ernmental that law faith, without malice or coimpt~oii. under the authority of lam & 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

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

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 2-9all
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 admonishment on Ramsey or Roj~d.They relied on the writ of execution and on Do~wart's to use the back door and not let the cat out. Second, we did not conclude that postjudgment for execution statutes mere ~tnconstitutional authorixing entry illto Dorwart's home. IVe held in that there was noth~ng the writ of execution or the statutes pursuant to whteh they mere 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

as applied in clain~s pursuant to 42 C.S.C. 8 1083, and, rf so, mere Defendants in thts ease 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 Donart'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 imieus 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

because tt would lead to a procedural quagmire, reward ignorance of qualified ~mmunity 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 e prisoners who clalmed to h a ~ been injured by guards at a private prison, The Court held that prison guards employed by a private firm are not entitled to a qualified immunity from suit by prisoners charging a 2108. 764 In Richuurison, 521 U.S. at 403, 117 S.Ct. at 2103, the Court explained that "a

9

1983 violation. Richardsonl 521 U.S. at 412, 117 S.Ct. at

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

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

and the Montana Constitution, are self-execut~ng that pursuant to the English Cornmon Law 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 case, the Plamtxffs are not that based on the arguments and authorities presented in t h ~ s entitled to the recoer> 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

disregard for the right to privacy would be or its agents is worse. A culture of governn~enta! 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

hoi: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(~ R<~.so~(rc~,;, 2001 330 5font. 249>"/ 9, 32 P.3d 764,q ") for the proposition that uiider the lam of

MT IN3: 7

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

Bi~lct~sSix Ci?kilol~.n 1 : . fioi?ted Agetlt.~ I 971). 403 I!.S. 388, 91 S.C:t. 1999. 2'1 L..Ed.2d 61 9: ( 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. LIep'l',czrti~~er?t gf,bfilit~1g~A/iii2imY97!, 282 Mont. 348, 362,918 P.2d 614, 623 (holding that . ... (1 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

govein~nent entities (Article 11, Section 9); the right of individual privacy (i-rticle It, Scctiori 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. Constitution. LARRY EI..ISON FRITZ M. AX11 SNYDI:R. MON~SAK THI: %'A'I-E C0XSSII'I:TION:
il RI:I'EKE'N('E Crt!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
As stated in Oont~~!.; the coiistitutio~~al I. rights violated in the case at bar were those

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 'Amendment and Article 11, Section 17. ilt least process of law protected by the Fou~-teetltli 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.

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

ti?wi.ctiof?n~ (hrp. Serv.

11

IIfu16,.rko (2001 j, 534 C.S. 6 1 : 122 S.Ct. 5 15. 15 1 L.t:d.2d 456.

In i'cjr~-ccrioi~al ,Ye?-vicerthe Court retiased to exicnd Bivc.ns to auiilorize a right cjf acrioir lor
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
cause of action only to provide Court created and twice extended the otliemise noliev~stent a remedy for a plairttiff "who lacked u r y ultertzu~i~~e i i ~ d y Itarms caused by an re~ for individual officer's u~~coiistitutio~~al conduct." Conectionill So-v., 534 U.S. at at 521 (emphasis it1 original).
, 122 S.Ct.

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

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 remedy against their superior officers); L'riirc~d Stuler v. .SrcitrIey (, 1987), 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).

I

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

is interpreted out of any meaningful existence. Moreover, as noted, Bivet~s already limited 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 s far broader than those available through the federal system." T h ~ statement i s supported 61 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: notes In presenting this proposed Declaration of Rights, the eornn~ittee 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.
.Cloiiru

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Montana Law