Dorwart v. Caraway

RUSSELL EDWARD DORWART and

HARRY DORWART, Appellants and Plaintiffs, Cross-Respondents, v. individually deputy as a CARAWAY,

PAUL County Sheriff’s Office; Stillwater individually and as a AMES, DANNY deputy Sheriff’s in the Stillwater individually and as BROPHY, CLIFF Office; County, Montana; of Stillwater Sheriff STILLWATER, OF COUNTY Montana, State Respondent Defendants, Cross-Appellants. No. 95-446. Argued 1997. June July 15, 1997.

Submitted August 4, Decided 1998. 1998 MT 191. St.Rep. 777. Mont. 966 P.2d 1121. Office, Law (argued); Thomas Gary R. Thomas Appellants: For Lodge. Red (argued); Crowley, Haughey,

For Steven R. Milch Respondents: Dietrich, Hanson, & Billings. Toole Mazurek, Attorney General; Amicus: Joseph Clay

For Hon. P. Solicitor, Smith, Helena. R. GRAY delivered the of the Court. Opinion

JUSTICE (Dorwart) Harry Edward Dorwart Plaintiffs Russell and judgment Dorwart from the entered the Thirteenth Judi- appeal Court, County, cial on granting partial District Stillwater its order Ames, summary judgment Caraway, Danny Paul to defendants Cliff Brophy County. Stillwater cross-appeal and The defendants from the granting the District on partial entered Court its order summary judgment to Dorwart. affirm in part, part We reverse in proceedings. remand for further dispositive on following appeal We address issues

cross-appeal: determining the District Court Did err in that the actions of deputies in entering levying Sheriffs Dorwart’s residence and

upon property therein personal did violate Dorwart’s constitu- tional be free from searches unreasonable and seizures un- der the Fourth Amendment to the United States Constitution Ar- II, ticle Section 11 of the privacy Montana Constitution or his II, under Article Section of the Montana Constitution? the in determining

¶4 2. Did District Court err that Montana’s post-judgment execution statutes are unconstitutional because do provide procedural required not due of process law Article II, Section of the Montana Constitution and the Fourteenth to the Amendment United States Constitution? deputies immunity 3. Are the to qualified

¶5 Sheriff’s entitled from liability individual for Dorwart’s 42 U.S.C. 1983 claims? § summary 4. the District Court granting Did err in in ¶6 County Sheriff, and Brophy, capacity favor of Stillwater Cliff in his as on Dorwart’s U.S.C. 1983 search and seizure claim? § Court granting summary judgment 5. Did District err in ¶7 of defendants on and trespass favor Dorwart’s conversion claims Harry trespass and Dorwart’s claim? District err is not en- concluding Did the Court Dorwart

¶8 attorney’s titled to fees?

BACKGROUND was the named defendant in two actions in the Small Dorwart ¶9 County, in Stillwater Montana. Claims Division the Justice Court in those actions on Feb- against entered him judgments Default were 11,1991. The Court issued subsequently March Justice ruary 19 and 9, April on March 12 and judgments to enforce the writs of execution 1991, respectively. driving Dorwart was his evening April On the and Absarokee 78 between Columbus along Highway truck

pickup (Ames) and Danny Sheriff Ames stopped by Deputy when he was arrested Dorwart execution. Ames also with the two writs of served alcohol, truck and pickup seized the driving under the influence (Jail). Jail After County Dorwart to the Stillwater transported Jail, Deputy either Ames or Sheriff incarcerated in Dorwart was the door to his resi- asked Dorwart whether Caraway (Caraway) Paul not that one door was responded locked and Dorwart dence was license that his wallet and driver’s deputies told the locked. He also car, parked was in his of his mother’s which the dashboard were on driveway. residence, entered to Dorwart’s Caraway proceeded and Ames personal prop- items of and seized various garage, and the

the house They took Dorwart’s wal- also to the writs of execution. erty pursuant Caraway re- nor had the car. Neither Ames the dashboard of let from to enter his residence. from Dorwart quested permission re- truck, and his wallet were its contents pickup Dorwart’s 18,1991, Dorwart filed in days April On him several later. turned to Quash Property and a Motion for Release of Court Justice and other Exemption Execution, by an Affidavit supported Writs of Car- which Ames and affidavits, property asserting personal exempt was from garage either from his house away had seized does not indicate him. The record belong or did execution but, motion on hearing on Dorwart’s Court held a the Justice whether from 30, 1991, property seized it that all of ordered September rightful owners. to its garage be returned house Dorwart’s the Jail. from retrieved subsequently Dorwart Caraway, complaint against 5,1993, filed a Dorwart April On (collec- (Brophy) and Stillwater Ames, Brophy Sheriff Cliff federal state and asserted various County). complaint tively, claims, resulting from the tort common law claims, as several as well Dorwart monetary damages. requested of his seizure in- declaratory and claim for to add a complaint amended later post-judgment Montana’s on his contention relief based junctive Dorwart, Dorwart’s Harry are unconstitutional. execution statutes

209 residence, trespass father and the owner of Dorwart’s asserted a Caraway against claim and Ames. summary judgment against 14 The moved for on all claims

¶ summary for partial judgment all defendants and Dorwart moved on claims. granted The District Court Dorwart’s motion all but two of his declaratory injunctive claim for summary judgment on his re- lief, summary granted County’s judgment motion for on the re- judgment accordingly. mainder of Dorwart’s claims and entered County cross-appeals. and the appeals Dorwart

STANDARD OF REVIEW in reviewing summary judg Our standard a district court’s 56, M.R.Civ.R, novo; ment is de we use the same Rule ruling criteria (1996), Eagle Systems, as the district court. Clark v. Inc. 279 Mont. (citations omitted). 279, 283, 995, party 927 P.2d A sum seeking mary judgment any must establish the genuine absence of issue of nonmoving material fact which would allow the party to recover and 56(c), M.R.CIV.P; entitlement as a matter of law. Rule (citations omitted). Clark, 283, 279 Mont. at 927 P.2d at 997-98 Ordinarily, begin summary judgment we our review in a by determining moving party case whether the established the ab disputed sence of material fact issues. See Montana Metal Build (1997), 471, 475, 942 694, 696-97. ings, Shapiro Inc. v. 283 Mont. P.2d Here, however, undisputed the material facts are and the parties’ as only sertions of error relate to the District Court’s conclusions of law regarding summary judgment. entitlement We review a district court’s conclusions law to determine whether those conclusions are State, Albright through correct. v. State 281 Mont. (citation omitted). 205, 933 P.2d

DISCUSSION in determining 17 1. Did the District Court err that the actions of ¶ deputies entering levying the Sheriff’s Dorwart’s residence and upon personal property therein did not violate Dorwart’s constitu- free from unreasonable searches and seizures un- rights tional to be Amendment to the United States Constitution and Ar- der Fourth II, privacy ticle Section 11 of the Montana Constitution or his II, under Article Section of the Montana Constitution? Caraway The District Court concluded that Ames and did not when entered his home

violate Dorwart’s constitutional therein because the writs of execution con- upon property and levied judicial authorization for their actions. Dorwart stituted contends erroneous, writs, arguing that this conclusion is that the in and of themselves, justify insufficient to into were intrusion his home with- result, Dorwart, according deputies’ out a search warrant. As a to the levy home and on his entry subsequent property into his violated his rights to be free from unreasonable searches and sei- constitutional right to We address Dorwart’s search privacy. separate zures and his arguments and in turn. privacy and seizure complaint stated two search and seizure-related Dorwart’s Caraway brought pursuant and Ames. The first was against claims (§ 1983), 42 1983 which authorizes a cause of action when a U.S.C. § federally right by of a another person deprived protected has been 1983; Mysse 42 acting under color of state law. See U.S.C. v. person § 253, 260, (1996), Martens 279 Mont. 926 P.2d 769. This search alleged Caraway seizure-related claim that and Ames violated and to the rights Dorwart’s under the Fourth Amendment United States entry alleged deputies’ Constitution. The second claim that into home and seizure of his violated his personal Dorwart’s II, by Article Section 11 of rights guaranteed state constitutional as summary judg- The moved for the Montana Constitution. action, contending deputies’ causes of that actions ment on both federally right that would protected neither Dorwart deprived II, Article Section 11 of the give rise to a 1983 claim nor violated § Montana Constitution. motion, County’s concluding granted The District Court Caraway and Ames did not violate Dorwart’s federal or state con- upon per- and levied rights when entered his home

stitutional ju- the writs of execution constituted property therein because sonal writs, argues that authorization for their actions. Dorwart dicial themselves, justify intrusion into his in and of were insufficient and, result, entry levy into his home and on his home as a free from unreason- violated his constitutional be and seizures. able searches to the United States Constitution The Fourth Amendment

provides that houses, pa- persons, to be secure in their people

[t]he seizures, effects, and against unreasonable searches pers, and issue, violated, upon proba- but and no Warrants shall not be shall affirmation, particularly and de- cause, or supported Oath ble searched, scribing place persons things to be to be seized. II, the Montana Constitution mirrors

Article Section the Fourth and, result, to the United States Constitution as a we an Amendment II, alyze questions arising and seizure under Article Sec most search using principles. tion 11 traditional Fourth Amendment State v. (1997), 250, 264, 934 176, 184. Mont. P.2d Siegal fundamen purpose prohibition against tal of the Fourth Amendment’s unrea protect privacy security sonable searches and seizures is to safeguard sanctity against arbitrary of the home individuals (1967), officials. Camara v. government Municipal invasions Court 523, 528, 1727, 1730, 930, 935; 387 U.S. 87 S.Ct. 18 L.Ed.2d State v. 145, 149, Gray Mont. 447 P.2d 477. In effectuating underlying purpose, key principle by followed courts is that cases, carefully in certain defined classes of a search “except pri property proper vate without consent is ‘unreasonable’ it unless has Camara, been authorized a valid search warrant.” 387 U.S. at (citations omitted). 528-29, 87 S.Ct. 1727 specific issue before us is whether an entry officer’s into a private purpose executing residence for the a writ of execution vio rights against lates constitutional unreasonable searches and sei only entry zures where the authorization for the officer’s into the resi dence is the writ of execution itself. The contends that this is in, sue has by, Ramsey been addressed and is controlled v. Burns 154, 69 Ramsey 27 Mont. P. 711. Itrelies on for the proposition implied powers one of the authorized a writ of execution in levying right cludes the officer’s a judgment enter debtor’s resi and, place dence or of business in order to execute the writ on that ba sis, deputies’ contends that the search of Dorwart’s home and seizure property were unreasonable because the writs of execution entry County’s themselves authorized into his home. The reliance on Ramsey is misplaced. officer, by justice In Ramsey, special appointed peace attachment, acting pre-judgment to a writ of pursuant levied personal property belonging by Ramsey. to a business owned

upon writ, executing premises, the officer entered the business locked possession premises the doors and remained of both and the personal property days, releasing property only within for five learning mortgaged Ramsey, when it had been to another. Mont. at officer, Ramsey prevailed against P at 712. in a suit justice of the peace who issued the writ and the justice sureties of the of the peace damages resulting from property, destruction of false imprisonment interruption of her business and the defendants appealed. Ramsey, 27 155-56, 69 Mont. at P. at 712. In addressing the defendants’ contention that the trial court erred in instructing the jury that an officer was not possession authorized to take premises where located, to be seized is this Court stated: An officer the right has to enter a business place against the will of the occupant, permission having been refused, asked and and to seize the therein belonging to the occupant and subject to levy. It is impossible to make such levy many cases, as where a goods seized, whole stock of is without taking possession of the place where the goods are.... The officer has a to enter and have possession place, stated, ofthe as time, above for a reasonable may and he have there goods in storage for such reasonable may require time as he pack them and to procure the necessary transportation for their removal.

Ramsey, 156-57, 69 27 Mont. at basis, P. at 712. On that we concluded jury instruction erroneously stated the Ramsey, law. 27 Mont. at 157, 69 P. at 712. Ramsey readily distinguishable. Factual aside, distinctions

no constitutional search and seizure issue relating to execution of a Thus, writ was raised or Ramsey. addressed in Ramsey has appli- no cation here. entry Whether an officer’s private into a residence to exe

cute aon writ violates search and rights, seizure only where the au entry itself, thorization for the is the writ of execution is an issue of impression first in Montana. question The threshold in analyzing search and seizure issues is person whether the asserting an invasion of these constitutional legitimate has a expectation of privacy (1993), in the area McCarthy 51, 55, invaded. State v. 258 Mont. 852 111, P.2d 113. We have long recognized person that a legitimate has a expectation privacy See, in his or her own home. e.g., State v. (1982), 113, 126, 644 498, 505. Thus, Carlson 198 Mont. P.2d Dorwart legitimate and, had a expectation privacy indeed, in his home County does not appear argue to otherwise. legitimate expectation Once a of privacy has been estab

lished, any governmental intrusion into Dorwart’s home conducted without a search warrant se per unreasonable under the Montana and United States Constitutions to a subject only well-established few

213 460, 468, 914 592, (1996), Mont. P.2d v. Loh See State exceptions. (1967), 347, 357, 389 U.S. 88 S.Ct. v. United States (citing Nate 585). 576, to 507, 514, exceptions These well-established 19 L.Ed.2d voluntary knowing and con requirement warrant include the search (State (1994), 248, 257-58, 264 Mont. a v. Rushton sent to search (State circumstances 1355, 1361) v. Dawson exigent and P.2d 357). 345, 353, 761 P.2d 233 Mont. Caraway Here, undisputed that Ames and did not have a it is It is authorizing entry their into Dorwart’s home. also warrant

search deputies’ entry not to the into that Dorwart did consent undisputed Furthermore, fit the circumstances of this case do not his home. any exigent exception circumstances the framework within and exceptions requirement to the search warrant other established of these exist in this County argue any exceptions that does Thus, to the search warrant re exceptions these established case. and, result, appears here as a it that are not satisfied quirement of Dorwart’s home and seizure of his were deputies’ search 468, 914 See Loh, constitutionally unreasonable. 275 Mont. at P.2d at contends, however, that it is well-established that a County The execution, itself, private in and of authorizes officers to enter writ of therein. It cites to several levy personal property on residences distinguishable. but the cases are support proposition, cases in of this (Cal. 1904), People Sylva relies on v. 76 P. first officer “[a]n Court stated Supreme in which the California duty enforcing judgment by a execution has charged with the he can the execution defendant if do so premises to enter the right Sylva, attorney deputy P. at 815. In an and a Sylva, 76 peaceably.” levy pursuant the defendant’s home to on sheriff entered at the and or- execution; pointed gun the defendant two a writ of The defendant was convicted of as- premises. them to leave the dered appeal attorney on deadly weapon argued sault with to use all force giving thus him deputy trespassers, were his The California court con- necessary expel property. them from deputy peace- to both of execution authorized cluded that the writ attorney an assis- bring as the defendant’s home ably enter Thus, the defen- and, therefore, trespassers. were not the two tant Sylva, a matter of law. force defense failed as justifiable use of dant’s however, and sei- no constitutional search Ramsey, P. at 815. As zure relating issue writs of execution was raised or discussed in and, result, Sylva, as a that case has no application here. (7th County The also relies on Gumz v. 1985), Morrissette Cir. 772 F.2d proposition that the issuance of a of writ execu- by entry tion a court after of a authorizes the seizure of a Gumz, property. civil defendant’s Wisconsin officials arrested the plaintiff and his dragline equipment seized based on their determina- plaintiff tion that the had been dredging waterway permit without a in violation of state civil plaintiff statutes. The an brought action against officials the federal district court asserting, part, a 1983 claim based on allegations that violated § his under by seizing the Fourteenth Amendment property his without affording process Gumz, him of law. A jury due 772 F.2d at 1398. rendered a ver- dict in favor of the defendants on this due process claim and the dis- subsequently trict court the plaintiff’s denied motion to amend the Gumz, at plaintiff appealed, verdict. 772 F.2d 1399. The arguing that that, determining the trial court erred in if defendants established probable dragline cause for their belief that the being was used for il- legal dredging, dragline the seizure of the not pro- would violate due Gumz, 772 at cess constraints. F.2d 1402. The Seventh Circuit of Appeals Court concluded that civil at issue of

statutes did authorize seizure property without a “[sjeizure action, prior stating forfeiture that of a civil defendant’s be only permissible entry would after of judgment and issu- Gumz, ance writ of of a execution the court.” 772 F.2d at This statement, however, clearly only was directed to Fourteenth Amend- requirements process necessary ment due before state officials could deprive property pursuant someone of to the civil statutes at issue. Indeed, any the Seventh Circuit did not expressly address Fourth plaintiff Amendment search and seizure issues in Gumz because the Gumz, had waived those issues in the court below. 772 F.2d at Furthermore, quoted only n.3. statement relates to authorization of made property; of a seizure court no reference to whether the is- entry private suance a writ of execution would authorize the onto reasons, to conduct a search for For these Gumz property. inapplicable here. (Cal. City cites Costa Mesa v. App. next Soffer 1992), Cal.Rptr.2d Soffer, Appeals 735. In the California Court entry property by city into officials for in- private

determined nuisance, pursuant judicial authorization, alleged of an spection un- proscription against not contravene the Fourth Amendment did Soffer, Cal.Rptr.2d searches and seizures. at 741. The reasonable present that the of execution in the case consti- County asserts writs “judicial authorization” discussed the Cali- type tute the same and, therefore, supports argument court in its fornia Soffer Soffer entry into deputies’ the writs of execution authorized disagree. Dorwart’s home. We “judicial was a court order Soffer, specifi- the authorization” city the

cally directing go property the officials to onto defendant’s Here, at nei- alleged Soffer, Cal.Rptr.2d the nuisance. 736. inspect themselves, post-judgment of execution nor the execu- ther the writs issued, pursuant expressly tion statutes to which the writs were di- to enter deputies private rected or authorized Dorwart’s resi- Thus, property. dence to effectuate the seizure of his is Soffer distinguishable present on its facts from the case and is of no assis- County. tance to (1886), Finally, Boyd cites to v. United States 524, 29 746, 616, 6 specifically relying S.Ct. L.Ed. on the United

U.S. therein that Supreme States Court’s statement entry upon premises, by made a sheriff or other officer of the [t]he law, by purpose seizing goods judi- for the of and chattels virtue of a writ, attachment, execution, sequestration, as an or an cial such ... prohibition is not within the of the Fourth Amendment.... 624, 6 that,

Boyd, County urges Boyd 116 U.S. at S.Ct. 524. The since overruled, authority been it controlling has never constitutes private of execution authorize officers to enter residences to writs levy necessity therein without the of a search warrant upon property violating princi Fourth Amendment search and seizure without Again, disagree. we ples. First, Supreme above-quoted Court itself considers the dicta, Boyd has conclude that the

language from to be refused to Boyd language required holding that the Fourth Amendment war apply private premises rant did not to searches requirements Leasing tax deficiencies. See G.M. collecting assessed purpose 630, (1977), 338, 355-56, 97 619, 429 U.S. S.Ct. Corp. v. United States 530, have deter regard, previously 545-46. In this we 50 L.Ed.2d dicta in Court cases as con regard Supreme that we need not mined us. Commonwealth Edison the outcome of issues before See trolling (1980), 191, 200, Mont. 615 P.2d v. State Co. Further, Supreme Boyd Court’s statement pre was prohibition

mised on its determination that the Fourth Amendment unreasonable against apply searches and seizures does not in civil executing a underlying contexts such as writ of execution because the the search is to locate and seize to which the cred purpose of itor is entitled in satisfaction of a debt and not to discover evidence to charges against premises. criminal the owner of the See support 624, 6 However, at Boyd, Supreme 116 U.S. S.Ct. 524. Court subse has reevaluated its earlier cases which concluded that an quently ad only periphery pro ministrative search touches of the interests tected the Fourth Amendment because it does not seek evidence of thus, and, activity only criminal that such a search involves the less to be from intrusion into “right personal privacy” intense secure greater “self-protection” than the interests under the Fourth rather Camara, See 387 U.S. at 87 S.Ct. 1727 and Fifth Amendments. 360, 79 804, 3 Maryland v. State 359 U.S. S.Ct. (citing Frank 746). 616, 6 524, 29 Rather, Boyd, L.Ed. L.Ed.2d 116 U.S. S.Ct. surely determined in is anomalous Supreme “[i]t Court Camara fully are say private protected that the individual his only suspected the Fourth Amendment when the individual citizens, not, law-abiding behavior ...” because all have a criminal sanctity limiting interest in the circumstances in which the strong Camara, may by authority. the home be invaded official private 530-31, at 87 S.Ct. 1727. U.S. then, turn, the issue first in Montana which impression 7 We to entry private whether an officer’s into residence presents:

this case rights against a writ of execution violates constitutional to execute on only searches and seizures where the authorization for unreasonable execution itself. The issue includes two entry the is the writ of entry an into a residence to execute a writ of exe- subissues: whether and, provisions and seizure subject cution is to constitutional search to, satisfies, so, exception writ or is an if whether of execution provisions. in those We address these requirement contained warrant turn, guidance pro- beginning in with a closer review of subissues to the interface be- by Leasing regard Camara and G.M. with vided searches and modern constitutional civil administrative tween principles. and seizure search Camara, an adminis- Court addressed whether Supreme viola- inspect housing to code of a citizen’s residence

trative search when conducted without Fourth Amendment tions violated 534, There, Camara, 387 U.S. at 87 S.Ct. 1727. search warrant. city at “the city housing gave inspectors code issue authorized times, structure, enter, any in the building, premises at reasonable Camara, any duty City perform imposed upon them....” 387 U.S. at 526, city inspector 1727. When Camara refused to allow a S.Ct. warrant, city into home without a search filed a criminal com- his Camara, 387 U.S. at 87 S.Ct. 1727. Camara contended plaint. housing provision code violated the Fourth and Fourteenth city it private Amendments because allowed officials to enter a home probable a search warrant and without cause to without believe that Camara, housing a violation of the code existed therein. 387 U.S. at 527, 87 S.Ct. 1727. concluded, above, Supreme Court first as discussed that the prohibition against

Fourth Amendment unreasonable searches and civil, criminal, applies seizures in as well as contexts because all citi- strong securing by zens have a interest their homes from intrusion Camara, regardless officials reason for the intrusion. 387 U.S. 530-31, that, Supreme at 87 S.Ct. 1727. The Court was concerned inspector requests entry when an for an inspection, occupant knowledge the home has no of whether enforcement of the code actu- home, ally requires entry into that whether the inspector acting un- authority, proper inspector’s power der or the lawful limits of the which, circumstances, search. These are matters under other nor- mally magistrate reviewing are addressed a neutral search war- Thus, rant applications. system

[t]he effect of is to practical occupant subject this leave the to the discretion of the official in precisely the field. This is the dis- private property cretion to invade which we consistently have cir- by a requirement cumscribed that a disinterested party warrant ... simply say the need to search. We cannot protections by the warrant provided procedure are not needed in this context 532-33, 87 Camara, reasons, 387 U.S. at S.Ct. 1727. For these the Su administrative preme Court determined that searches such as the housing inspection significant code were intrusions on pro interests subject the Fourth Amendment and tected were to the warrant re Camara, 387 U.S. at 87 S.Ct. 1727. quirement. that, Similarly, Leasing, Supreme in G.M. Court concluded deficiencies, satisfy levying upon property government

in to tax that a search exempt was not from the Fourth Amendment stricture 218 is private property

of unreasonable unless authorized a valid 358, G.M. 429 U.S. at Leasing, search warrant. 97 S.Ct. 619. In that Court determined regard, Supreme government’s that the tax as- sessment, authorizing types general, while all seizures in types privacy did not authorize all of warrantless intrusions into to 358, Leasing, 619, seizures. G.M. 429 U.S. at 97 effect those S.Ct. 97 Thus, agents’ entry the internal revenue S.Ct. 619. into G.M. warrant, levy Leasing’s premises, business without a to on Leasing’s rights under the Fourth Amendment. therein violated G.M. 359, Leasing, 429 U.S. at 97 S.Ct. 619. G.M. Leasing, Supreme pri- In both Camara and G.M. Court’s that, judicially absent a authorized search warrant

mary concern was search, showing probable after a cause to there is no limita- issued conducting on the discretion of the officer such an administrative tion or such private Placing search of a home business. limitations on when, where and how to conduct a search which intrudes discretion precise area reason behind the Fourth Amend- upon private Camara, requirement. search warrant 387 U.S. at 87 ment’s S.Ct. long recognized protection Court also has that the This provision unreasonable searches and seizures Montana’s

against effects, all and their homes and with applies people Constitution criminal conduct is involved. See State ex rel. regard to whether out 191, 196-97, 70 Mont. 224 P. King v. District Court III, Constitution, 7 of the Montana (discussing Article Section II, Article Section 11 of the 1972 Montana Consti which is identical tution). bases, entry pri we conclude that an officer’s into a On these subject a writ of execution is to the search and vate home to execute of the Montana and United States Constitutions. provisions seizure remains, however, whether a writ of execution is an ex question satisfies, to, requirement the warrant of these constitu ception provisions. tional context addressed analogous inspection administrative In the Camara, rejected the notion that an adminis Supreme Court exception to the Fourth Amendment’s constituted an

trative search that, adequately protect per It determined requirement. warrant showing “probable Amendment there be a rights, must son’s Fourth Camara, U.S. at inspection. conduct an administrative cause” to arena, proba 534, 87 inspection In the administrative S.Ct. 1727. determination, weighing after requirement entails a ble cause need for the inspection in terms of the reasonable goal to be achieved thereby against resulting intrusion, particular inspec- tion is reasonable Camara, under the circumstances. 387 U.S. at 534-35, 87 S.Ct. 1727.

The procedure warrant is designed guarantee that a decision to private property justified search by is a governmental reasonable interest. But reasonableness is still the ultimate standard. If a valid public justifies interest the intrusion contemplated, then there is probable suitably cause to issue a restricted search warrant. Camara, 387 U.S. at 87 S.Ct. 1727. (Neb. directly More point on Hinchey 1985), Nebraska v. There, 14. a

N.W.2d sheriff’s deputy Hinchey’s went to home to serve and execute a writ of execution. Although Hinchey refused several inside, times to deputy allow the he finally agreed, but asked the dep- uty to wait outside a moment while he “put something away.” The dep- uty, however, immediately Hinchey followed inside apartment ajar and observed of what appeared marijuana. to be Hinchey subse- quently was arrested for possession of marijuana and drug parapher- nalia. Hinchey, 374 N.W.2d at Hinchey 16. moved to suppress the evi- dence, arguing deputy had violated his Fourth Amendment rights. motion, The trial court denied the Hinchey and, was convicted thereafter, he appealed the denial of his motion suppress. Hinchey, 374 N.W.2d at 16-17. appeal, On Hinchey argued that his Fourth Amendment

were by violated the deputy’s entry into apartment his without a search warrant. prosecution that, The responded once the deputy was premises inside the and saw the marijuana, he was authorized to seize it “plain Thus, under the view doctrine.” question before the Supreme Nebraska Court was whether deputy legally was autho- Hinchey’s rized to enter apartment without a prior warrant to view- ing jar marijuana. prosecution argued that, because the ex- ecution required statutes the deputy to seek property which could be upon, levied the writ of execution pursuant issued to those statutes provided deputy with authority lawful apartment to enter the without a warrant. Hinchey, at N.W.2d The Nebraska court observed at the outset that the statute re- quiring an officer to seek property levy on which a could be made supersede could not prohibitions constitutional against unreason- that, able searches and seizures. It determined while the Nebraska execution statute general authorized the “seizure” Hinchey’s prop- erty, it did not authorize a warrantless “search” for that property such a search violated the debtor’s Fourth rights. when Amendment Hinchey, 374 N.W.2d at 18-19. The court further concluded that the authorization, judicial of execution itself did not constitute as writ requirement, the Fourth Amendment’s warrant be- contemplated purely require was ministerial and cause issuance writ did court; writ, any action or review a to obtain a creditor only file with the clerk of court. praecipe Hinchey, needed Indeed, the writ N.W.2d at 19. was issued any showing upon may which it be found that without violating be obtained without the debtor’s fourth cannot otherwise right against amendment unreasonable searches and seizures. why arming deputies That is a sheriff or one of his with a writ of ex- judicial a employing process type ecution is not the same as re- to obtain a search warrant or an arrest warrant. We quired for one distinguish requirements between the which see little reason property persons may met before or be seized for criminal must be persons may or be seized for civil property and before purposes Likewise, recognize fourth does not such the amendment purposes. a distinction. conclusions, N.W.2d at 19. As a result of these the

Hinchey, 374 circumstances, that, exigent may held absent an officer Hinchey court levy therein first private upon enter a home without not Thus, .’’Hinchey, an “execution warrant 374 N.W.2d at 20. obtaining Hinchey’s entry pursuant into home to the writ execu- the officer’s exception not constitute an to the Fourth Amendment war- tion did and the writ itself did not rise to the level of a requirement rant authorizing the search. warrant search case, Caraway and present undisputed In the it is authorizing them to enter did not obtain a search warrant Ames required that a warrant was not under arguing Dorwart’s home. circumstances, writs of execution County points the out that the conformity and acted with Montana’s upon case were issued in this course, is, similar to the ar execution statutes. This post-judgment rejected on the basis that a statute can Hinchey gument made unreason prohibition against Amendment the Fourth supersede at 18. The mere Hinchey, 374 N.W.2d and seizures. See able searches writs, pursuant conduct deputies’ and the the issuance ofthe fact that not establish writs, applicable statutes does did not violate to those protect the constitutional statutory procedures adequately that the of either judgment Dorwart or other debtors under similar cir See, Food, e.g., Buttrey (1980), cumstances. Duran v. Inc. Mont. 381, 392, 616 327, 333. P.2d accept “To that rationale sur would be to determine power render this Court’s constitutionality of enact 392, 616 legislature.’’Duran, ments 189 Mont. at at P.2d Moreover, nothing in the post-judgment execution statutes ex entry into pressly private authorizes a home for the purposes a writ executing of execution. While the execution statutes authorize levy on —or “seizure” of—a personal debtor’s execution, to a pursuant writ of do not authorize enter officials to See, 25-13-304, homes to search for that private property. e.g, §§ 25-13-306, 25-13-307, 25-13-402, MCA. County also judicially ap contends that the writs were by Peace,

proved fulfilling Stillwater Justice of the thus magistrate” “neutral served purpose by the constitutional search war disagree. requirement. rant We The writs of execution here cannot be “judicially been approved” said to have in a manner which fulfilled purpose requirements served for —a search warrant. —or search Review of a warrant an application impartial ensures that neutral magistrate a and detached evaluation of the sit interposed investigating uation between the officers pri and the 146, 149, 879 State v. vate citizen. Wilson 266 Mont. P.2d result, requires 684. As Montana law that a judge magistrate or a search application objective evaluate warrant make an deter as to whether an intrusion private mination into a home is reasonable Wilson, 149, 879 under justified the circumstances. 266 Mont. at judge 684. A may only upon ap P.2d at issue search warrant written plication, affirmation, made under which oath states sufficient II, probable authorizing cause for Art. Sec. Mont. search. Const, Const.; IV; 46-5-221, Moreover, U.S. amend. MCA. a § search must particularly person place warrant describe the to be searched II, Const.; the items to be seized. Art. Sec. Mont. and U.S.Const. IV; 46-5-221, amend. MCA. § Here, by it is true that the writs of were the signed execution Indeed, 23(C), County Justice of the Peace. Rule

Stillwater J.C.C.R.Civ.P, that a writ to requires justice M. of execution enforce a However, signed justice peace. be neither court post-judgment justice procedure court civil rules nor the execu- the re- substantive review a court require any impartial tion statutes execution issued. Nor does the re- whether a writ of should be garding any reflect for the at issue applications cord writs here based on affi- testimony describing place searched, davit or other the to be the Likewise, sought necessity and the of the search. property the record any indication that the objec- is devoid of Justice of Peace made an determination probable tive that there was or reasonable cause to be- justified lieve the search of Dorwart’s home was under the circum- Finally, suitably stances. the writs themselves do not constitute a re- search warrant because fail to delineate stricted or the to be searched with sought place any specificity. here, procedures The used and writs of execution issued

thereunder, sufficiently did limit the simply deputies’ not discretion satisfy the writs to the search and seizure executing provisions Fourth Amendment to the United States Constitution or Article conclude, therefore, II, 11 of the Montana Constitution. We Section adequate and of them- that the writs of execution were —in deputies’ entry authorize the into Dorwart’s home and selves —to Caraway’s entry home and that Ames’ and into Dorwart’s seizure of property, without his consent and without benefit of a personal his warrant, provi- Dorwart’s under these constitutional violated result, hold that the District Court erred in determin- sions. As a we Caraway entering that the actions of and Ames in Dorwart’s resi- ing levying upon personal property therein did not violate dence Dorwart’s to be free from unreasonable searches seizures. Having concluded that writs of execution do not authorize home, question entry private into and search of a arises as to authority lawful to enter and search a home to execute a writ of how Again, Hinchey guidance. obtained. we look to execution can be observed, first, duty Hinchey court that an officer still has a possession take which can be obtained with- to seek and rights. Hinchey, Fourth Amendment violating the owner’s out such prop- at 20. When the officer has been unable secure N.W.2d however, satisfy underlying j udgment, and there is erty as would personal property subject may to execution be reason to believe residence, the debtor’s an “execution warrant” should located within following procedures: pursuant obtained be only by judge... upon be issued an execution warrant should Such out that a writ of supported by setting cause affidavit reasonable or in and returned unsatisfied whole has been issued execution prop- there is affiant has reason to believe and that part kept of the debtor possession execution in the erty subject

223 residence, the maintained within debtor’s not otherwise available execution, the describing property sought place and the and If the is purpose judge execution. satisfied that there is rea- within property sonable cause to believe that there is of the debtor possession and that other is the debtor’s not available for execution, levy judge may and the then issue an execution warrant authorizing premises upon the officer to enter the and levy prop- erty subject to execution. In this maimer the fourth amendment prohibition against unreasonable searches and seizures will be satisfied. with, at We

Hinchey, agree adopt, N.W.2d the execution requirement procedures Hinchey warrant set forth in for those where situations insufficient has been obtained pursuant warrant, writ execution. We conclude that such an execution procedures above, under the set protect obtained forth judgment will be debtors’ free from unreasonable searches and seizures under both Montana and United States Constitutions. The District granted summary Court also to the Dorwart’s Caraway on claim that the actions of and Ames vio- right lated his to privacy guaranteed as the Montana Constitution. regard, court deputies’ this concluded that actions were reasonable, scope justified by within the law and the writs of ex- Thus, ecution. the court that, further concluded because no unreason- able search took claim place, privacy Dorwart’s failed as a matter of argues law. Dorwart that the District Court’s conclusions are errone- ous and that there is no compelling state justified interest which nonconsensual, entry warrantless into his home. II, Article Section 10 of the Montana provides Constitution as

follows: right of privacy individual is essential to the well-being of a society infringed

free and shall not be showing without of a compelling state interest.

We held an previously have official action which constitutes defined, “search” as that term is which conducted without ben warrant, II, efit of a Article implicates search Section 10 of Montana’s justified by Constitution and must be a compel demonstration of ling state See 281 Mont. at Siegal, interest. 934 P.2d at 192. Moreover, any compelling justifying state interest such an intrusion person’s privacy closely only on a must be tailored to effectuate (1994), compelling 43, 47, 887 interest. State Pastos v. Mont. P.2d 199, 202 374, 388, 98 (citing Zablocki v. Redhail U.S. S.Ct. 631). 673, 682, Thus, it is 54 L.Ed.2d as clear that there was a home, search of Dorwart’s there also must be a concomi warrantless justifying that compelling tant state interest search order to avoid violating privacy Dorwart’s under Montana Constitution. deputies’ entering above the actions Dorwart’s We held that of ¶57 personal therein seizing property home and his constituted an unrea result, As a the conclu sonable search and seizure. District Court’s privacy rights that violation Dorwart’s constitutional oc sion no of curred, it on that to the extent is based the erroneous determination reasonable, Thus, is the ar the search also erroneous. we address was presented regarding compelling whether a state interest guments intrusion into Dorwart’s home. justified the County The does assert the existence of a com- specifically not by justifying the intrusion into home pelling state interest Dorwart’s Ames, the Caraway but focuses on fact that the writs of ex- and rather by County issued the Stillwater Justice Court in confor- ecution were proce- execution mity governing post-judgment with the statutes basis, oc- argues privacy rights On it that no violation of dures. that authority the to enter gave deputies legal curred because the writs County argument against We resolved this the Dorwart’s home. have here. and need not address it further above (State), ap Montana Attorney The General of the State of curiae, interest argues compelling as that the state pearing amicus by the seizure of a monetary judgments the of here is enforcement credibility the of and the of judgment preservation debtor’s recognized that a judicial system. compelling We have previously person’s privacy may into a exist justifying interest an intrusion state for is to enforce its criminal laws the benefit acting state where See, e.g., of its citizens. of other fundamental protection and 263, 184; v. Solis 281 Mont. at 934 P.2d at State Siegal, case, however, 518, present 522. In the Mont. 693 P.2d not to enforce the state’s into home was undertaken entry Dorwart’s protecting society gen of in purpose nor was it for the criminal laws entry wrongdoers. was effectu from the actions of criminal eral enforcing judgment private between two civil purpose ated for the preserving an agree has interest While we that state citizens. judg judicial system enforceability and the integrity of our justify as an intrusion ments, “compelling” to interest not so this consent, home, pur- his or her without person’s private into a poses searching through seizing any that home and all items of which have might some value. County nor presents argument Neither the State additional interest, as to the existence of a state compelling closely tailored to ef- interest, only justified fectuate that which entry the warrantless into home no compelling Dorwart’s and we conclude that such interest ex- result, ists. As a we hold that the District Court erred in concluding Caraway entering that the actions of and Ames in Dorwart’s resi- levying personal dence and upon property therein did not violate right II, privacy Dorwart’s under Article Section 10 of the Montana Constitution. erroneously Because the District Court concluded right

Dorwart’s to be free from unreasonable searches and seizures right privacy deputies’ were violated actions this summary granted basis, case and to the judgment on that fur- ther consideration trial court of Dorwart’s search and seizure privacy claims the state prema- under constitution was turely light holdings terminated. our the District Court summary erred in on granting Dorwart’s claims under Ar- II, Constitution, ticle Sections 10 and of the Montana we remand proceedings for on further those state constitutional claims. Did the in determining District Court err ¶62 that Montana’s execution are post-judgment statutes unconstitutional because provide procedural process required by do not due of law Article II, 17 of the and Section Montana Constitution the Fourteenth Amendment to the United States Constitution? post-judgment Montana’s execution statutes

¶63 are located in Ti- (MCA). 25, Chapter tle 13 the of Montana Code Annotated Pursuant statutes, party to a who a judgment money those receives for or the possession property may of have a writ of execution issued to enforce 25-13-101(1) 25-13-201, that See and MCA. A writ of judgment. ex- §§ of against property judgment ecution issued debtor must be levy on and sale of the through judgment per- satisfied debtor’s or, necessary, property. 25-13-402, real See sonal if 25-13-304 and §§ debtor property judgment specifically exempt by MCA. All of not MCA) (§ 25-13-501, subject property exempt to execution law is 13, in Part Chapter from execution is set forth Title 6 ofthe MCA. execution, creating statutory exemptions from In provided property that some are com- Legislature types Montana execution, types are exempt property from while other ex- pletely only monetary amount. ex- up execution to a certain For empt from 25-13-608, MCA, judgment are enti- provides that debtors ample, § property of the and benefits exemption tled to from execution limitation monetary as to the value thereunder without enumerated contrast, 25-13-609, MCA, provides or benefit. In property § of the from exemption are entitled to execution debtors values, monetary in interest, exceeding designated vari- debtor’s case, Dorwart personal property. this specified ous items ex- personal property levied on which was deputies claimed that 25-13-609, MCA. empt under § injunc- declaratory judgment a complaint sought Dorwart’s execution stat- post-judgment the basis that Montana’s

tive relief on process due of law under the Montana violate his utes property in- He asserted that he has a Constitutions. United States provided judg- from execution statutory exemptions terest in the procedures are consti- statutory execution debtors and that ment deprive they allowed the tutionally inadequate because him from execution without exemptions interest in the property of his of law. process due summary Dorwart’s motion granted District Court The claim, determining process provided that the due this

judgment on County con- constitutionally deficient. The statutes the execution erred, has no con- arguing that Dorwart that the District Court tends statutory per- a asserting interest stitutionally property protected interest, there and, absent such property exemption sonal that, if County also even argues violation. The process be no due can interest, post-judgment Montana’s protected property Dorwart has process. We address these adequate due provide statutes execution in turn. arguments statutory exemptions interest Property

A. shall be person “[n]o provides Montana Constitution II, Art. due of law.” life, liberty, process or without deprived of to the the Fourteenth Amendment Similarly, Mont. Const. Sec. “deprive any that no state shall provides States Constitution United ...” process due of law life, without liberty, property, person process due determining whether constitutional In case, we first address given in a violated have been protections to a level ac which rises liberty interest exists or property whether Montana States and under the United process protection due corded 205, 210, (1982), Wetering Mont. v. Van De 197 Akhtar Constitutions.

227 149,152. 642 P.2d In order to establish a interest in a benefit personal such as the property exemptions here, at issue a person legitimate must show that he or she has a claim of entitlement to the Akhtar, 211, 642 benefit. 197 Mont. at P.2d at (citing 153 Board Re (1972), gents 564, 577, v. Roth 2701, 408 U.S. 2709, S.Ct. 561). 548, L.Ed.2d The source of such an entitlement to a may benefit (cit Akhtar, found in 211, be state law. 197 Mont. at 642 P.2d at 153 2701). Roth, 577, ing at 92 S.Ct. Therefore, in determining U.S. whether Dorwart has a legitimate claim of entitlement to statutory from exemptions execution which creates a constitutionally pro right, tected property we look first to the statutes establishing the property exemptions judgment available to a debtor in Montana. 25-13-606, MCA, expressly Section provides that a resident of Montana is “entitled” to the statutory exemptions from execution. 25-13-609, MCA, Sections 25-13-608 and provide also judgment debtors are “entitled” to the specific exemptions from execution enu Moreover, merated therein. “entitle” is defined as give right “to or le for; gal qualify [t]o title to ... proper furnish with grounds for seek (6th 1990). ing claiming.” Black’s Dictionary Thus, Law ed. stating judgment debtors are “entitled” statutory to the exemp tions, the Montana Legislature given has judgment legal debtors a right to claim and benefit from those exemptions. however, County posits, that we construed statutory ex- from

emptions personal execution as privileges, rather than entitlements, Ingraham (1918), in Tetrault v. 54 Mont. 171 P. and Matter Estate Sandvig 220, 819 250 Mont. P.2d premise, 184. From that it argues judgment that a prop debtor has no erty right entitling him or her personal to claim property as exempt from disagree. execution. We Tetrault, the sheriff levied on and sold judgment previously Tetrault,

debtor had sold to person. another 54 Mont. at 527, 171 P. at 1149. In subsequent litigation, the purchaser at the sheriff’s sale asserted that the property exempt had been from execu Tetrault, tion at the time he purchased 525-26, 171 P. it. 54 Mont. at at discussing appeal 1149. In on whether the property exempt was from execution, we determined that to claim an exemption is a privilege” “personal debtor which can be —and was —waived the debtor when he sold the property prior to the Tetrault, 528, 171 54 Mont. at P. at ability sheriff’s sale. 1149. The claim property exemptions “personal privilege” was a because ex- to, emption personal was to the debtor and did not attach or transfer with, words, property the when sold to another. In other Tetrault’s “personal privilege” language related to who could claim the exemp- tion; exemption it did not relate to whether the from execution anwas a privilege purposes determining entitlement for whether a Thus, in property right exemptions. exists the Tetrault is not author- ity proposition judgment prop- for the that a debtor does not have a erty statutory exemptions interest in from execution. ofSandvig support County’s argument Nor does Estate the that in property claiming statutory

Dorwart does not have a interest ex There, emptions appellants from execution. owned a 1929 Model partial judg A which was levied on and sold in satisfaction of a Ford Sandvig They ment debt owed to the estate. did not claim the Ford as 221-22, exempt property. of Sandvig, Estate 250 Mont. at 819 P.2d at Subsequently, appellants petitioned bankruptcy, claiming exempt property bankruptcy a different vehicle as under the statutes. later, they the district petitioned recovery Several weeks court for $1,200 Sandvig exemption each from the estate for their interest as judgment petition debtors in the Ford. The district court denied their appellants exemption on the basis that the had waived their interest by obtaining exemption in the Ford an for a different vehicle in the and, so, in bankruptcy proceeding. doing We affirmed reiterated the statutory exemptions from Tetrault that from execu statement of Sandvig, 222, 819 personal privileges. tion are Estate 250 Mont. at “personal P.2d at 185-86. We did not further discuss or refer to the and, Tetrault, language language as in did not relate to privilege” judgment property statutory had a interest in whether debtors Indeed, Tetrault, in in exemptions. as no issue was raised or discussed ofSandvig regarding appellants property Estate whether had a statutory exemptions interest in the from execution which would due concerns. process raise argues prop The State also that Dorwart does not have a

erty exemptions protected pro interest in the which is under the due The provisions cess of the Montana United States Constitutions. that, 25-13-609, MCA, pursuant Dorwart’s inter points State out § statutory only from execution lies in the exemptions in the listed est statute, monetary provided in the rather than specified amounts and, result, as a Dorwart cannot have any particular property, item of specific personal prop in the items of protected property interest statutory ex- erty. protected The State asserts that the interest interest, statutorily equity up to merely the debtor’s emption is amount, the State’s the- property’s in the value. Under established property possession exempt is not entitled to retain ory, the debtor amount, statutorily exempt but is greater than the has a value which Thus, property. according value of that only exempted to the entitled have a interest State, protected property the debtor does not to the personal property. item of specified protected property the nature of the misapprehends The State interest lies in here. A debtor’s interest at issue ability from execution itself and the to claim statutory exemption resulting claiming benefit to the debtor from exemption. may retaining posses- from be either statutory exemption execution receiving money equivalent itself or to the the item of sion of amount, depending on the nature and valúe of the statutorily exempt of the form in which the property. Regardless item of particular ultimately exemption the of the from execu- receives benefit debtor and that tion, statutory exemption is entitled to claim the is he or she the to due protected process. interest which is property the that, by providing that all Montana residents are We conclude ¶75 execution, Legislature from the has specified exemptions to entitled claim benefit judgment debtors an entitlement upon conferred therefore, hold, judgment that Montana exemptions. from those We statutory exemptions in from ex- have a interest debtors in protected by process guarantees which is the due contained ecution the Montana and United States Constitutions. provided by post-judgment of due Adequacy process

B. execution statutes judgment debtor’s Having process protects held that due ¶76 execution, turn statutory exemptions in from we property interest post-judgment that Montana’s Court’s determinations the District are, due provide adequate process do not execution statutes therefore, pro observe that due regard, unconstitutional. In this we could result notice of a action which requires proposed cess generally opportunity and the to be of a interest depriving person in 197, (1997), 284 Mont. that action. See Matter regarding heard of Klos 1277, 1281. 205, P.2d ultimate conclu- the District Court’s County argues that is erroneous because are unconstitutional the statutes sion binding pre- Court’s Supreme the United States court failed to follow cedent in Endicott-Johnson v. Corp. Encyclopedia Press 61, U.S. 45 S.Ct. disagree. L.Ed. 288. We Endicott-Johnson, Supreme Court held that due process of law under the Fourteenth Amendment to the United States Consti- tution does not require that a given debtor be notice and an opportunity to prior be heard to the issuance and execution of a writ of garnishment. given When debtor has been opportunity an to be day heard and have his regarding or her in court underlying judg- ment, he or she must take notice of what entry will follow after judgment; no further notice hearing necessary before instituting supplemental proceedings enforce judgment. Endicott-Johnson, 266 U.S. at 45 S.Ct. 61. Endicott-Johnson only addressed whether notice opportu-

nity hearing for a must be afforded to a judgment prior debtor to the issuance and execution of a writ garnishment. It did not address whether due process required notice and opportunity for a hearing af- ter the writ has been issued and the garnished, debtor’s monies so might the debtor any be allowed to assert exemptions available garnishment Indeed, from or execution. statutory existence of ex- emptions garnishment from or execution was not raised Supreme Endicott-Johnson and the Court did not discuss whether statutory exemptions from garnishment might execution or affect process due considerations such situations. Nor are the additional cases on which relies as sup-

port its assertion that Endicott-Johnson process controls the due issue before us applicable. While two of those cases cite to Endicott-Johnson for its holding that notice and opportunity for a hearing are not required prior garnishment to a writ of or execution issued, being neither case whether process requires addressed due notice and opportunity hearing money for a after a debtor’s has been garnished or levied may effectively on so that a debtor assert (W.D. exemptions. Langford available See v. State Tennessee Tenn. (D.N.M. 1973), 1163, F.Supp. 1164; Moya 1968), 356 v. DeBaca 286 606, F.Supp. remaining County 608. The two cases on which the re- lies, recognizing viability while continued holding parameters, explicitly Endicott-Johnson within its factual from, distinguish to, inapplicable Endicoif-Johnson and hold it situa- statutory exemptions garnishment tions where from execution or ex- may erroneously deprived of which the debtor be if not ist afforded no- opportunity point during tice and to be heard at some

231 post-judgment proceedings. Neely See v. Century Finance Co. Ariz. (D. 1985), (Ariz. 1453, Ariz. 606 F.Supp. 1461-62; Cagle v. Carlson 1985), 1343, 705 P.2d App. 1348. Moreover, we observe many of the recent federal cases

which have addressed the constitutionality of state statutory post-judgment garnishment schemes for or execution also have de- termined that Endicott-Johnson factually and, is distinguishable therefore, dispositive in cases where the statutes at grant issue judgment debtors the to claim various exemptions from execu- tion. As the United States Court of Appeals for the Tenth Circuit has noted, Endicott-Johnson did not consider the existence exempt property which might be erroneously seized and sold if some post-judgment notice hearing are not accorded to the debtor. (10th Aacen v. San Juan Dept. 1991), Cir. 944 F.2d Sheriff’s (citations omitted). 691, 695 “Endicott’s rationale assumed that judgment resolved all out standing issues between the debtor creditor, and the collection be ing However, a ministerial act. does not resolve whether certain property exempt.” McCahey v. L.P. Investors [(2nd 1985), 543, 548], is, Cir. 774 F.2d That while the judgment re exists, solves the issue whether a debt it does not address whether the creditor can seek satisfaction of the debt from particular this asset. (3rd

Aacen, 695; at F.2d see Finberg also v. 1980), Sullivan Cir. (S.D.N.Y. 56-57; Co., F.2d Deary v. Guardian 1982), Loan Inc. (C.D. F.Supp. 1178, 1185; Kirby Sprouls 1989), v. Ill. 722 F.Supp. Indeed, some questioned cases have Endicott-Johnson’s contin viability ued light of modern-day See, due process jurisprudence. (1st e.g., Finberg, 56-57; 634 F.2d at 1985), Bouley Dionne v. Cir. 1344, 1351; F.2d Deary, 534 F.Supp. at 1185-86. persuaded We are the reasoning of the above cases. As a re-

sult, that, we conclude insofar as Dorwart asserts that Montana’s post-judgment execution statutes process violate due of law because they adequately protect do not his interest in the exemp- thereunder, tions available Endicott-Johnson controlling is not the District Court did not err in so determining. Having rejected the County’s error, threshold assertion of proceed we to address the sub- stantive basis the District Court’s conclusion that Montana’s post-judgment execution statutes are unconstitutional because do not provide judgment debtors with notice of the seizure of property,

232 statutory exemptions execution, notice of the from notice of proce- by exemptions dures which to claim availability and of the of a hear- regarding ing exemptions, those and a prompt hearing on whether property exempt. is addressing whether governing statutes post-judgment exe- cution and garnishment procedures provide adequate due process protections, many of the federal cases cited above apply balancing (1976), test culled from Mathews v. Eldridge 319, 424 U.S. 96 S.Ct. 893, See, Aacen, 47 L.Ed.2d e.g, 695-96; Dionne, 944 F.2d at 1352; Finberg, 58; F.2d at Kirby, F.2d at 722 F.Supp. at 521. specific [identification of the due process generally dictates of re- quires First, consideration of three distinct factors: the private in- action; second, terest that will be affected the official risk an deprivation erroneous of such interest through procedures used, value, and the probable any, if of additional pro- or substitute safeguards; finally, interest, cedural the Government’s includ- ing the function involved and the fiscal and administrative bur- dens that the additional procedural or substitute requirement would entail.

Mathews, Indeed, 424 U.S. at 96 S.Ct. 893. we previously have recognized and applied balancing this test in addressing the extent of procedural safeguards required protect due process rights under (see other circumstances M.C. v. Department (1984), Institutions 105, 109-10, 958-59; Mont. 683 P.2d Matter of M.F. 277, 284-86, 653 1205, 1208-09), 201 Mont. P.2d and it appropriate is weigh that we the Mathews factors in our consideration of the due here, process issue as did the District Court.

1. Private Interests Involved Applying test, prong first of the Mathews it is clear that private interests of both the judgment judgment creditor and the debtor are affected levying official action of upon personal property under a writ of judgment execution. The creditor’s interest the process executing judgment money on a is to obtain the or property to which the creditor is entitled. The creditor is owed a debt and has time and expended money taking legal action to reduce judgment. Having debt to a a judgment against obtained debtor, strong speedy inexpen the creditor has a interest in the Furthermore, sive satisfaction of that judgment. if the creditor’s abil ity judgment unduly delayed, to execute on the is possibility there is a may dispose may the debtor that the value, reducing ability satisfy diminish in thus the creditor’s judgment. judgment debtor’s interest in the process, execution on the hand,

other is to preserve ability his or her to claim that certain prop- subject erty above, to execution. As we concluded property ability debtors have a interest in the statutory claim ex- and, thus, from execution emptions strong have a interest in their ability procedures by to initiate which to effectively claim those ex- emptions preserve exempt property. This includes the debtor’s in- asserting statutory terest in exemptions from execution to which receiving he or she is entitled and a prompt determination of whether been, be, property which has or is about to subject levied on is execution. While the creditor’s in satisfying judgment clearly

¶86 interest a overrides the debtor’s any interest nonexempt property, outweighs debtor’s interest that of the any property creditor as to statutorily which is exempt from execution. “Since the debtor has a significant in protecting exempt seizure, interest property from clearly, the procedural debtor is entitled to safeguards that do not ad- versely adjudicated affect the rights.” Kirby, creditor’s 722 F.Supp. at property on, however, 521. Once the is levied thereby removing the possibility that destroy assets, debtor will or conceal these adequately creditor’s interests are preserved and the debtor’s inter- property “very Aacen, est in the becomes compelling.” 696; 944 F.2d at Dionne, 757 F.2d at 1352.

2. Risk of Erroneous Deprivation and Value of Other

Procedural Safeguards The second Mathews factor necessitates an examination of the statutes, post-judgment execution light procedural of the asserted statutes, whether, deficiencies of those to determine under the statu- tory procedures, there is a risk that judgment debtors will be errone- ously deprived property of their requiring whether additional procedural safeguards would be in reducing valuable the risk of erro- neous deprivation.

a. notice of property the seizure of Dorwart first asserts that execution post-judgment procedurally inadequate statutes are because fail to require judgment property debtors be notified of the seizure of their either be Indeed, provided fore or after the fact. while Dorwart was actual with property seizure of his when he was served pending notice of the with execution, statutory requirement there is no in the the two writs upon judgment any of execution be served a debtor at MCA that writs provide any notifying do the statutes other method of time. Nor property debtor that has been seized in satisfaction of a judgment. be, been, property to a debtor that will or has Without notice execution, exempt property a debtor’s under a writ of could be

seized seizure, was aware of the particu- on and sold before debtor levied possession. if the were not in the debtor’s direct Pro- larly property protect ability notice to a debtor would the debtor’s to as- viding such statutory from execution to which the exemptions debtor is sert clear, however, requirement It that a that the debtor be no- entitled. is may detrimentally in- property affect a creditor’s tified of seizure creating dispose an for the debtor to secrete or opportunity terest can be levied on. property before concerns, of these due recognition competing process given prior that a debtor be notice to issu usually require does not levy property, or even to the on the as prior of a writ of execution ance in a manner given notice of the seizure long as the debtor Dionne, ability exemptions. the debtor’s to assert protects which However, “[o]nce F.2d at 59. the attachment 1352; Finberg, F.2d at made, possibility that the debtor will secrete his as removing is sets, timely opportunity and be notified of a to the debtor must receive which the law makes any sequestration property of his challenge (citations omitted). unattachable.”Dionne, The addi 757 F.2d at 1352 judgment debtor with no safeguard providing of procedural tional shortly after seizure would be valuable in de at the time of or tice of the debtor’s deprivation exempt risk of an erroneous creasing the property. statutory exemptions of the

b. notice execution post-judgment also asserts that Dorwart re process they due because do not provide adequate not statutes do exemptions informed from ex be of the existence of that debtors quire only exemptions provided of in this regard, notice ecution. In this execution di the bottom of each of the writs of a reference at case was any out of of Dorwart’s satisfy judgment recting the sheriff EXECUTION.” The writs “NOT EXEMPT FROM was property which from execution statutorily exempt is property indicate what did not exemp- information on available could find person where explain or tions, and the execution statutes not post-judgment require do provided debtors be such information. above, judgment As we have a protected concluded debtors and ability statutory interest to claim benefit from property ex- emptions from execution. That interest could be lost if they the exemptions not informed that exist because a debtor are unaware likely Thus, will them. exemptions of not claim there is a risk that erroneously in, deprived will be of their ability debtors interest claim, statutory exemptions from execution. general, process which, due notice requires under the circum-

stances, reasonably parties is calculated to inform interested of the Aacen, opportunity present objections. action and afford them an 697; Finberg, F.2d at at 634 F.2d 61-62. Notice to a judgment or informing availability exemptions debtor him her of the of from ex- ecution and where information about those can exemptions be found preserve opportunity objections the debtor’s to present would to the levy on, of, sale which possible exempt from execution. extent, additional procedural requirement To that debtors be with provided exemptions notice existence and how to locate more information about them be reducing would valuable in the risk erroneously depriving judgment debtors of their interest in claim- ing statutory exemptions from execution. procedures by

c. notice which to claim exemptions availability and of the aof hearing those regarding exemptions next Dorwart contends that the proce statutes at issue are durally inadequate provide because do not notice judg to a whereby the procedures may ment debtor of debtor claim property, wages exempt as hearing benefits from execution and receive a on Indeed, that claim. post-judgment Montana’s execution statutes do provide statutory any exemptions means which can be claimed a court response statutory and determined of law. In to this vac uum, of claiming exemptions developed several methods have (see, judicially approved e.g., been Welch v. Huber 262 Mont. 1181; State ex rel. 114, 115, 862 P.2d Bartol v.Justice the Peace 1, 5, 55 691, 691-92), 102 Mont. P.2d none have Court but been incorporated into the execution statutes. It is clear that Dorwart by one of for the moving availed himself of these methods release of execution, of property quash and to the writs which resulted in the his However, ordering property. Court the return of his seized Justice any procedures, receive actual notice of available did not Dorwart otherwise, from execution. The exemptions to claim statutory or completely silent as to issued in this case were of execution writs rights and exemption which to assert process a existed whether Furthermore, statutory a the process. initiate such how to provision no for afford- procedures execution contain post-judgment availability any of the means of as- a debtor notice ing judgment hearing on those receiving execution and a serting exemptions from exemptions. any whether statu- provide procedures, notice of The failure may claim the judgment a debtor avail-

tory nonstatutory, by which hearing a on those claims execution and receive exemptions from able may erroneously deprived exempt be that the debtor creates a risk notice, debtor could either fail to judgment a Without such property. remedy a the existence of remedy or not discover legitimate a pursue light complete In of the ab- property. the too late to reclaim until it is provisions statutes of post-judgment execution in Montana’s sence exemptions claim procedures notifying judgment debtors for procedural safeguards execution, clear that additional it is from valuable. would be hearing

d. on whether prompt exempt is property execution that the post-judgment Dorwart asserts Finally, provide fail to specifically because are unconstitutional statutes under available exemptions on claimed hearing a for of ex prompt disposition or for procedures execution post-judgment given be clearly requires person that a process Due claims. emption objections to an ac hearing present a at which to opportunity an property of a interest. person depriving result which could tion Aacen, 205, 943 1281; 944 F.2d P.2d at at 284 Mont. of Klos, Matter See claims case, exemption his Dorwart asserted present at 697. quash the writs property his for release of way of his motion him. on was returned to and, levied eventually, execution received Dorwart ever indicate whether However, does not the record claims. exemption his hearing on have creditor will that, cases, in most likely It is from exemptions asserting to the debtor prior on the levied of, on, disposition hearing result, longer a and, as a execution debtor is de- delayed, longer exemption claims debtor’s Thus, prompt absent exempt property. of possession prived hearing judgment on a debtor’s claim that property is exempt from exe- cution, a deprivation there is risk of of the property. debtor’s Requiring prompt hearing a and decision on judgment whether a prop- debtor’s erty exempt is from execution would be valuable in diminishing this deprivation risk of an erroneous of the debtor’s interest.

3. Government’s Interest Mathews test also entails weighing the Application of the post-judgment state’s interest in the process, execution including the fiscal and may administrative burdens which imposed be on the state by requiring additional procedural safeguards. Clearly, the state has an enforcing interest in its laws and preserving in the integrity of the judicial system through judgments. enforcement of court That inter protecting est includes judgment ability creditor’s to collect on an debt, adjudicated while conserving the limited financial and adminis trative resources available to it. The state’s interest also must encom pass judgment debtor’s entitlement to statutory exemptions from execution, however, in order to avoid favoring one party’s legal rights over those of the other. requirement A that judgment given debtors be notice of a

seizure of their pursuant execution, to a writ of notice of statutory execution, exemptions from and notice of procedures by which to claim exemptions from execution and receive a hearing on exemption those claims would further the state’s interest in protect ing the debtor’s to the exemptions without significantly impact ing on the creditor’s interest satisfying the judgment, since the creditor is not entitled to execution on exempt property. Nor would the state’s fiscal and administrative significantly burdens be in creased, since property seizures, the notice of availability exemp procedures by tions and which to claim exemptions would require only new, old, printing or revising of writ of execution forms. clear, however, It is that requiring a prompt hearing judg on a ment debtor’s claim that exempt from execution affects adding state’s interests to both its administrative and fiscal re sponsibilities. especially apparent This is in the additional burden placed upon judicial system by the state’s requiring prompt hearings disposition debtor’s claims. the Mathews Factors Balancing procedural We determined above that additional require- process ments in the execution would in reducing be valuable the risk of an erroneous deprivation judgment of a debtor’s interest in the ability to claim and benefit from statutory exemptions from execu- requirements judgment tion. first three are notices to debtors of execution, the seizure of their property under a writ of either at the shortly thereafter; time of the seizure or the availability exemp- tions from execution and where exemptions information about those found; procedures by exemptions can be and of to claim which and re- hearing Providing ceive a on those claims. this information to debtors protect property right claiming statutory exemptions would their execution, yet preclude from creditor from proceed- Furthermore, ing any nonexempt with an execution sale of property. on the placed requiring burden state these notices is It slight. nothing notifying amounts more than the judgment debtor that including has been seized and particular information about exemptions procedures available from execution and the existence of by Moreover, which to claim them in the writ of execution itself. exemptions notice of available need not include a detailed and ex- exemptions; merely provide haustive list of all it need notice of the ex- exemptions istence of from execution and how to locate more informa- See, Aacen, that, e.g., tion about them. 944 F.2d at 698. We conclude weighing parties proceed- in the interests of the involved in execution claiming in ings, judgment property exemp- the interest of the debtor substantially outweighs any burden on the placed tions creditor or additional requirements. the state these notice The final we determined be in requirement would beneficial reducing erroneously depriving judgment the risk of a debtor of his or claiming her interest in from execution is a hear- exemptions prompt clearly ing disposition exemption requirement and claims. Such in- by reducing benefits both the debtor and the creditor the time resolving respective the^property volved in their claims to at issue integrity judicial system. furthers the state’s interest in the of the and hearing of a increases the state’s ad- requirement prompt While burdens, ministrative and fiscal it also advances the state’s interests effectively claiming exemp- the debtor’s interest in protecting in both timely satisfying from execution and the creditor’s interest in tions Kirby, light judgment at In of the judgment. F.Supp. See ability exemptions claim from exe- debtor’s interest in the cution, retaining recover- strong the debtor’s interest —or that, execution and the risk ab- exempt which is from ing property — claims, the debtor will be un- prompt hearing exemption on the sent necessarily deprived exempt property for a substantial period of time, conclude that the cost, we debtor’s interests here outweigh fiscally administratively, both imposed upon the state. that, summary, case, we applied conclude as this post-judgment Montana’s execution statutes violate state and fed- guarantees process they eral constitutional due of law because do for notice to a provide debtor of the seizure of the property, availability statutory debtor’s of the exemptions from ex- them, ecution and where to locate additional information about availability of procedures which to claim exemptions from that, applied case, execution. We further conclude as in this the stat- deficient from a due process standpoint they utes are because do not provide hearing for a on claimed prompt exemptions. Moreover, the specify District Court’s failure to addressing whether it was the stat- applied utes on a facial or as basis notwithstanding, we deem the court’s conclusion to have been on applied an as basis and hold that the District Court did not err in determining that Montana’s execution post-judgment statutes are unconstitutional applied as be- provide procedural process cause do not due required of law II, by Article Section 17 of the Montana Constitution and the Fourtheenth Amendment to the United States Constitution. Caraway 3. Are and Ames qualified immunity entitled to from liability individual for Dorwart’s 1983 claims? § The District Court concluded Caraway Ames were qualified immunity liability entitled to from individual for Dorwart’s process due claims based on its determination that the constitutional notice-related which were clearly violated were not estab- deputies pursuant lished at the time the acted writs of execu- deputies reasonably tion and because the could not have understood rights. that their actions violated Dorwart’s As a result of its errone- Caraway ous determination that and Ames did not violate Dorwart’s rights, search and seizure the District Court did not address whether qualified immunity entitled to entering were for his residence seizing property. his Dorwart contends that the District Court’s immunity conclusion qualified regarding process his due claim was that the deputies qualified erroneous and also are not entitled to im- Therefore, munity on his search and seizure claim. we address quali- immunity process vis-a-vis both the due claim and the search and fied seizure claim. process only due requested Dorwart’s claim a declara injunction.

tory judgment permanent monetary He did not seek Qualified immunity that claim. damages damages for is a defense to liability; declaratory injunctive it is not available in actions for re (9th Fire, Managers, American Collision Inc. v.Gillespie lief. Theft and 1991), 816, 818. Therefore, F.2d Cir. we conclude the District applying qualified immunity erred in in the context of Court claim. process Dorwart’s due Qualified immunity government per shields officials discretionary liability

forming damages functions from for civil when clearly statutory does not violate their conduct established or consti person of which a reasonable would have known. tutional (1982), 800, 818, 102 2727, 2738, S.Ct. Fitzgerald Harlow v. 457 U.S. 396, In an official is entitled analyzing 73 L.Ed.2d 410. whether violated, immunity, identify right a court must deter qualified clearly at the time right mine whether was established vio established, and, determine a right clearly lation if was whether or official would have known that his or her con person reasonable (1992), 1062, right. Hamilton v. Endell 981 F.2d duct violated (1997), 341, 350, 934 1009, 1014. 1066; Day 281 Mont. P.2d Orozco v. plaintiff proving right has the initial burden of that the regard, this only clearly established at the time of violation. If —but was plaintiff showing, if —the makes this the burden shifts the defen immunity that his or her conduct asserting qualified prove dant Hamilton, though reasonable even it violated the law. See was at F.2d 1066. clearly correctly Dorwart asserts that he had estab and seizures in his right constitutional to be free from searches

lished exceptions of a search warrant or one of the to the home in the absence Const, II, 11, IV; Art. Sec. requirement. See U.S. amend. warrant 361, 374, 901 61, Const.; (1995), State v.Bullock 272 Mont. P.2d Mont. free from unreasonable general right This statement of the to be 70. however, broad, determin purposes and seizures is too searches immunity “clearly right” portion qualified established ing Rather, circumstances. which given determination under particular in a more clearly violated must be established has been See Aacen, ; Creigh ized, 944 F.2d at 701 Anderson v. relevant sense. 3034, 3039, 523, L.Ed.2d 107 S.Ct. 483 U.S. ton ques action in specific not show that plaintiff While a need that, unlawful, it must be demonstrated held previously tion has been

241 light case and in of circumstances particular the under law, apparent. the action taken was the unlawfulness of pre-existing 640, 107 3034. Under the circumstances Anderson, at S.Ct. 483 U.S. that, case, deputies at the time the Dorwart must demonstrate of this home, clearly established that the writs of execu his it was entered a or an es entry their in the absence of warrant did not authorize tion that, result, and as a requirement to the warrant exception tablished free from unreasonable searches and sei right his to be they violated zures. specific presented issue and resolved regard, In this execution, itself, a in and of authorizes offi writ

above —whether and therein —is one of person’s property enter a home seize cers to only In the other Montana case address impression first in Montana. authority acting pursuant when to a the extent of an official’s ing an writ, provides concluded that a writ of attachment official with we the will of the place against occupant, “the to enter a business refused, having property asked and and to seize the permission been subject levy.” Ramsey, and belonging occupant therein 156, Ramsey only P. 712. Our 1902 decision in is the Mont. at at authority derived from a interpreting scope Montana case writ levy Ramsey did not or resolve directing property. on While address entry scrutiny, an would survive constitutional it cer whether such acting pursuant an official to a writ di tainly appeared to authorize property possession to enter and take recting levy person’s on subject in which to execution was located in or premises necessity the execution without of a warrant. der to effectuate Moreover, resolving the cases on which we relied in issue while ¶ Camara, Leasing Hinchey G.M. been decided one above — —had home, it Caraway’s entry unlawful into Dorwart’s to Ames’ prior interpret sup that we would those cases as not have been clear would deputies’ actions violated Dorwart’s our conclusion porting while rights. Leasing, providing Camara and G.M. constitutional administrative addressing scope of warrantless guidance seizures, directly pursu did address actions taken not searches Indeed, appear case did there in neither ant to a writ of execution. entry complainant’s authorization for into judicial any type be Camara, 1727; Leasing, G.M. 387 U.S. at 87 S.Ct. See premises. Furthermore, directly Hinchey 344-46, 97 while at S.Ct. 619. 429 U.S. case, merely persuasive it is present in the the issue raised addressed binding precedent. authority, not Additionally, the Supreme previously Court had expressly entry

stated that an private premises officer’s into to levy on pursuant to a writ of execution is subject to Fourth Amendment constraints. Boyd, See 116 U.S. at 6 S.Ct. 524. While we deter- Boyd mined above that does not control our resolution of the search us, and seizure issue before the Supreme Court has never expressly and, thus, portion Boyd overruled that of potential it remained a authority source of on which to a base conclusion that Ames and Car- away did not violate Dorwart’s when entered his home. that, We conclude under the law as it existed at the time ¶112 Caraway Ames and entered Dorwart’s home upon prop and levied his erty, clearly it was not established that the of pursuant writs execution not, deputies themselves, acted did which and of authorize en try private entry pursuant into a residence or that their only to the right writs of execution violated Dorwart’s to be free from unreason and seizures. able searches Because Dorwart has not satisfied ini his tial of that the proving right deputies burden which the violated was violation, clearly established at the time of the we need not address it objectively whether was reasonable for Ames and Caraway believe Hamilton, their See conduct was lawful. 981 F.2d at 1066. We hold that Caraway Ames qualified immunity are entitled to from individual liability for Dorwart’s 1983 search and seizure claim. § summary 4. Did the District Court in granting err Sheriff, County Brophy, capacity favor of Stillwater in his as on Dorwart’s 1983 search and seizure claim? § addressing As we stated above in the search and seizure issue, provides person deprived 1983 a cause of action for a who is of § federally protected right person acting a another under color of 260, 1983; Mysse, 42 state law. U.S.C. 279 Mont. at 926 P.2d at 769. § Generally, brought against public 1983 claims are officials in their § individual for their actions taken under color of state capacities law. Orozco, 348, 934 However, municipali See 281 Mont. at P.2d at 1013. governmental may “persons” ties and local entities also be sued as un Orozco, 347, Mont. at P.2d at 1012. der 281 934 § governmental entity may A local be held liable under entity itself caused the constitu only when it is shown that 1983 § through implementation policy at issue of a or tional violation Canton, entity. City governmental that Ohio v. Harris custom of of 378, 385, 109 1197, 1203, 103 412, 424 (1989), L.Ed.2d 489 U.S. S.Ct. (1978), City Dept. York Social Services (citing Monell v. New L.Ed.2d 611). 658, 98 2018, Thus, U.S. S.Ct. in order to impose lia bility 1983, governmental entity on a local under plaintiff a § must es tablish

“(1) that he possessed constitutional of which he was de- (2) (3) prived; municipality policy; had a policy this plaintiff’s ‘amounts to deliberate indifference’ to the constitutional (4) right; and that the is the policy ‘moving force behind the consti- ” tutional violation.’ Lloyd Buhr on v. Flathead County 223, 268 Mont. Behalf of 381, 886 P.2d (quoting By Oviatt Through Waugh v. (9th 1474). 1992), Pearce Cir. 954 F.2d Similarly, a supervisor, here, Brophy such as cannot be held liable under 1983 unless it § supervisor’s demonstrated that the adoption of plan policy autho rized or approved alleged the conduct to have resulted in the consti (9th deprivation. tutional Bergquist See v. County Cochise Cir. 1986), 1364, 1369-70. 806 F.2d The District Court determined that Dorwart failed to demon- strate that either Stillwater or Brophy had adopted policies levy and regarding execution under a writ of execution other than the “policy” relying and, on Montana therefore, statutes that Dorwart had not established the elements set out in basis, Buhr. On that it con- cluded that Dorwart’s 1983 claims against § Stillwater County and,— by implication, Brophy as a matter of law. We note that the —failed only 1983 claim on § which Dorwart prevailed has is his claim that Caraway and Ames violated his Fourth rights Amendment when entered his home and property and, result, seized his as a we review the District only Court’s conclusion here as it relates to this search and seizure claim. argues Dorwart that the District Court’s conclusion was erro-

neous because he established that the actions of Ames and Caraway entering in his residence and seizing his were carried out in customary the usual and manner of the Stillwater County Sheriff’s Office. He further customary asserts that this procedure was the pol- icy which resulted in the deprivation of his constitutional rights and that, by allowing deputies proceed to under policy, this Brophy and County Stillwater adequately failed to train and supervise depu- the Dorwart, ties. According to this failure to train supervise and amounted to “deliberate indifference” to his constitutional rights. We disagree. governmental entity’s adequately A failure train

¶ 118 to or su may be pervise its law enforcement officers the basis of 1983 § liabil ity supervise that failure to to when train amounts deliberate in persons to the with whom the officers come into difference Harris, 388, 109 However, contact. U.S. at S.Ct. 1197. “deliberate only in this occurs need for indifference” context when the different obvious, inadequacy procedure so and the the used action is is so that it likely rights, to result violations of constitutional is reason say policymakers deliberately able were indifferent to need to (citations 240, 886 Buhr, policy. 268 Mont. at P.2d at 391 change Thus, Harris, omitted); 489 U.S. at 109 S.Ct. 1197. order for satisfy the deliberate indifference element for li imposing Dorwart County’s he establish that ability under must Stillwater cus § execution, and a writ of tomary procedures serving executing as Caraway case, obviously in this implemented by Ames and were con stitutionally inadequate County Brophy and that Stillwater and deliberately remedy procedural the need to those indifferent were inadequacies. addressing qualified we above in the issue of As discussed

¶ prior case that immunity, clearly it was established to this a law entry person’s into a residence and seizure of enforcement officer’s pursuant solely to a writ execution property therein violates free person’s constitutional to be from unreasonable searches governing post-judgment Montana statutes execution seizures. authority do not define the extent of an officer’s when exe procedures Moreover, only of execution. Montana case address cuting a writ under a ing implied authority extent of writ held officer occupant against to enter the will of the premises was authorized 156, 69 Ramsey, See 27 Mont. at P. levy property located therein. upon at 712. Caraway Ames and entered Dorwart’s We conclude when inadequacy property, and seized his constitutional

residence executing a writ County’s customary procedures for of exe- Stillwater and, result, Brophy not obvious as Stillwater cution was deliberately remedy inadequa- to the need to indifferent were not Thus, failed to exist. Dorwart has estab- cies have now determined we element, required as un- necessary “deliberate indifference” lish the liability entity. on a We Buhr, imposing governmental der § therefore, granting Court did not err in sum- hold, that the District mary judgment County in favor of Brophy, Stillwater and in his ca- Sheriff, pacity as on Dorwart’s 1983 search and seizure claim. § granting summary 5. Did the District Court err in judgment County favor of the on Dorwart’s conversion and trespass claims and Harry trespass Dorwart’s claim? complaint, In the amended Dorwart and his father asserted trespass against County.

conversion and claims The District summary granted Court in favor of the County on these that, claims on the basis since it had determined that the writs of exe- and Caraway cution authorized Ames to enter Dorwart’s residence therein, levy upon his Dorwart could not establish the entry trespass unauthorized element of a claim or the unauthorized over property seizure of control element of a conversion claim. that, Dorwart argues because the District Court erred in de- termining that the writs of execution deputies authorized the to enter property, his residence and seize his the court also erred in determin- a matter ing as of law the “unauthorized” elements of his tort that, claims could not be established. He contends in the event this Court holds —as we have above —that the writs of execution did not Caraway authorize Ames and to enter his residence and seize his property, trespass his and conversion claims are viable and should be that, agree given one, reinstated. We holding our on issue the basis on which the District Court concluded that Dorwart and his father could not establish their tort claims is incorrect. here, however, County reiterates argu alternative regard

ment it raised in the District Court with to the tort claims. Ac cording County, to the Dorwart’s tort claims still fail dep because the justified uties were in their execution of writs which were regular on face, by competent their issued authority appeared, time, at the deputies’ to authorize the actions. In this regard, essen tially Caraway contends that Ames reasonably could not have understood that their actions were not authorized the writs of exe and, therefore, cution none of the defendants should be liable for dam ages. The District argument Court did not reach this because of its ruling deputies’ However, writs authorized the actions. we will “affirm district court decisions which are correct regardless of the Clark, reasoning reaching court’s the decision.” 279 Mont. at (citation omitted). Thus, 927 P.2d at 999 County’s we examine the al argument. ternative

246 We have held that actions of law enforcement offi previously

¶125 tortious when the officers are proceeding cers cannot be on the basis reasonable, good understanding faith of a the law and do not act subject violence or citizens to indignity. with unreasonable unusual (Mont. 1975), 1380, 1382 Daly Anderson 529 P.2d Strung (citing v. v. (D. 1967), 88, (1940), 93; Minn. 278 Harri v. F.Supp. Pedersen Isaac (1973), 154, 137; 107 P.2d Wheeler v. Moe 111 Mont. Mont. 679; Meinecke 515, 206 P.2d v. McFarland 122 Mont. P.2d 1012). put that “it too opined great We further would burden on law subject damages every officers to make them to time enforcement in a court of last resort would determine con they miscalculated what rights.” Strung, 529 P.2d at an invasion of constitutional stituted 1381. that, time and Caraway We held above at the Ames acted

¶126 execution, clearly the writs of it was not established that pursuant to Thus, rights. violated Dorwart’s constitutional when the their actions entered Dorwart’s home to execute the writs of execution ac deputies appropriate which to be under cording procedures appeared to law, “reasonable, then-existing acting good Montana were on a understanding Strung, faith of the law.” See 529 P.2d at 1382. Fur thermore, alleged sug has not the record does not Dorwart —and deputies acted with unreasonable violence or sub gest —that indignity. Strung, unusual 529 P.2d at 1382. We con jected him to therefore, clude, Caraway entering that the actions of Ames and levying upon property residence and therein were not Dorwart’s tortious as a matter law. in granting We hold that the District Court did not err sum-

¶127 law tort mary judgment in favor of the on state claims trespass asserted Dorwart and his father. conversion concluding Did the District Court err in that Dorwart is not 6. attorney’s to fees? entitled only that statute un- The District Court determined attorney’s could be awarded fees was potentially

der Dorwart which (§ 1988), claimant provides prevailing which that a 42 U.S.C. 1988 § attorney’s fees may to 1983 be awarded brought pursuant an action § that Dorwart was not discretion. The court concluded at the court’s 1983 search and seizure attorney’s fees for Dorwart’s § entitled to actions deputies’ that the on its erroneous determination claim based free from unreasonable right Dorwart’s to be had not violated denying Court erred in seizures. While the District searches basis, attorney’s fees Dorwart on that we conclude that its de overall attorney’s is not termination that Dorwart entitled fees under We will affirm a court’s 1988 is correct. district decision which is cor § Clark, regardless rect the court’s reason for that decision. (citation omitted). Mont. at 927 P.2d at 999 has on his prevailed County’s Dorwart claim actions violated his to be free from searches unreasonable and seizures that, He argues under the Montana United States Constitutions. insofar as his search and seizure claim established a violation of the to the for purposes Fourth Amendment United States Constitution action, attorney’s he pursuant a 1983 is entitled fees § § It is true may successful 1983 claimant be § attorney’s awarded fees under 1988 of fact regardless quali § immunity prevents liability monetary fied for See damages. Jackson (5th 1989), 165, Cir. v. Galan 868 F.2d 168 (citing Pulliam v. Allen 522, 543-44, 104 (1984), 1970, 1981-82, 80 565, 466 U.S. S.Ct. L.Ed.2d 580). However, attorney’s there are cases where fees be should denied special because circumstances exist which would render an award of attorney’s unjust. (1989), Bergeron 87, 89, fees Blanchard v. 489 U.S. 67, 939, 942, 103 (citing Newman S.Ct. 72 Piggie 109 L.Ed.2d v. Park (1968), 400, 402, 964, Enterprises, Inc. 390 U.S. 88 19 S.Ct. 1263, 1266). special L.Ed.2d We conclude that ex such circumstances in present ist case. Where a claim 1983 is derived from the § actions of

county and, enforcing following and its officers in state laws thereby, effectuating county state policy, its officers should liability be subject attorney’s for fees from the resulting claim. (5th See, 1980), 391, 406; Cir. e.g., Familias Unidas v.Briscoe F.2d 619 (Minn. Dog City v. Minneapolis Minnesota Council Clubs Ct. App. 1995), 903, 906. by Caraway N.W.2d actions taken Ames and executing pursuant in the writs at issue here were Stillwater County’s customary procedures for the execution of a writ issued Indeed, levying conformance with Montana execution statutes. personal property, deputies enforcing Dorwart’s were upon regarding Montana public policy post-judgment executions as set were, Legislature duly they in statutes enacted forth therefore, policy than a effectuating policy promulgated state rather result, attorney’s County. awarding As a we conclude that fees County search and seizure claim against Dorwart’s § unjust. be would prevailed Dorwart also has on his declaratory judg

ment action seeking a declaration that Montana’s post-judgment exe cution statutes are unconstitutional because do not provide ade law, quate process due and he asserts that he is entitled to attor ney’s fees on that claim. Montana long has followed the rule that attorney’s fees will not be a prevailing party awarded to statu absent tory authority or contractual for such an award. Tanner v. Dream Is land, (1996), 414, 429, 913 641, 650. Inc. 275 Mont. P.2d No statute au attorney’s declaratory judgment thorizes an award of fees in a action. 137, 148, 885 McKamey v. State 268 Mont. P.2d Furthermore, Thus, no contract authorizes such an award in this case. we attorney’s conclude that Dorwart is not entitled to fees for prevailing on his claim under brought Declaratory Montana’s Uniform Judg ments Act. argues attorney’s Dorwart also that he is entitled to fees for on the search and

prevailing privacy seizure and claims he brought II, under Article 10 and 11 Sections of the Montana Constitution. As above, discussed the District Court’s consideration of Dorwart’s state constitutional prematurely claims terminated as a result of its erro- neous determination that no state constitutional violations had oc- regard curred. The same is true with to the court’s consideration of attorney’s Thus, arguments regarding Dorwart’s fees those claims. arguments regarding we conclude that Dorwart’s entitlement to at- II, torney’s fees on his claims under Article 11 of Sections conjunction Montana Constitution must be remanded in with our re- mand constitutional proceedings. of those claims for further in part, part Affirmed reversed in and remanded for further proceedings. TURNAGE,

CHIEF JUSTICE JUSTICES NELSON and REGNIER concur. LEAPHART,

JUSTICE specially concurring. 1,2,4,5 I concur in the Court’s resolution of Issues and 6.1 spe cially immunity. qualified concur as to Issue Number 3: As Court whether an im recognizes, analyzing qualified in official is entitled violated, munity, identify right determine whether court must and, time if the right clearly was established at the violation established, clearly per determine whether a reasonable right was his or her conduct violated that son or official would have known that (1992), 1062, 1066; Day F.2d Orozco v. right. Hamilton v. Endell 1009, 1014. (1997), 341, 350, 934 goes then P.2d The Court 281 Mont. apply qualified immunity that, on to based on its conclusion given the state of case as of the entry law time of the defendants’ into Dorwart’s home, it clearly was not established that an entry into Dorwart’s home pursuant to a writ of execution violated right his to be free from unreasonable searches and seizures. I, too, qualified immunity would find

¶ but for somewhat differ “Qualified ent reasons. immunity ‘gives ample room for mistaken judgments by protecting plainly all but the incompetent or those who ” knowingly violate the law.’ Boreen v. Christensen 280 Mont. 378, 383-84, 930 67, 70 P.2d (quoting Bryant (1991), Hunter v. 502 U.S. (citation 224, 229, 112 534, 537, 116 omitted)). 589, 596 S.Ct. L.Ed.2d I would conclude right that to be free from unreasonable searches (and was) and clearly II, seizures is established under Article Section Constitution, that, of the Montana given but the state of the case law as of the date of the entry given and that the process by utilized Caraway Ames and is the same as has been used levying officers in this state days, since territorial person reasonable or official would not have known that his or her conduct violated that right.

* * * JUSTICE TRIEWEILER specially concurring part and dissent- ing part. I concur with the majority’s conclusion Caraway that when

and Ames entered Russell Dorwart’s residence without a warrant permission, and without right violated his to be free from unrea- seizures, sonable searches guaranteed which is by both the Fourth Constitution, Amendment to the II, Federal and Article Sec- tion of the Montana Constitution. I also concur majority’s with the conclusion that post-judgment Montana’s deny execution statutes procedural process due in violation of the Fourteenth Amendment Constitution, II, the Federal and Article Section of the Montana Constitution, implementation procedural of those protections majority described necessary pro- to meet due cess requirements. However, I dissent from those parts majority opinion

which conclude that Caraway Ames and were qualified entitled to im- munity, against 1983 claim Brophy and Stillwater § dismissed, properly was and that the plaintiffs’ trespass claims for properly conversion were dismissed. maj ority opinion begins 140 The a cogent explanation why ¶ with Dorwart’s to be free from unreasonable searches and seizures violated, in clearly repudiates analysis and then its own an effort was of of spite its conclusion that in the violation Dorwart’s support to qualified them have immu- rights, those who violated constitutional originally are not as evident as stated. nity because majority correctly points out that both the example, For ¶141 Constitution, II, and Article Amendment to the United States Fourth 11, Constitution, guarantee people Montana to all of the Section searches and against secure in their homes unreasonable right to be seizures, repeatedly years as the fact that we have held for as well per home without a warrant se unreason- entry person’s that into a here. able, exceptions inapplicable that are with few correctly out that neither the writs majority points also ¶142 case, execution stat- post-judgment in this nor the which were issued issued, entry into a the writs were authorize pursuant utes to which in satisfaction executing on purpose home for person’s judgment. creditor’s of the correctly out that search and sei- Finally, majority points context, as well as the criminal con- apply in the civil protections

zure clear since and that all of the text, principle has been are and the State of Montana relied on the defendants authorities by their facts. distinguishable conclusions, clearly majority correct of all of these spite

then holds that guidance addressing while Leasing, providing G.M.

Camara and seizures, searches and did administrative scope of warrantless a writ of execution. pursuant actions taken directly address Indeed, any judicial appear type case did there to be in neither premises. entry complainant’s into the authorization for Leasing specifically make if Camara and G.M. did it What difference They with the issue of execution? dealt with writs of dealt that the Constitution a civil context and held searches in warrantless the search. judicial authorization for there was no was violated when because, as out in an- pointed no different in this case were The writs they did not authorize the defen- majority opinion, part other Dorwart’s home. to search dants immu- decision, exception qualified majority’s With the liability violating the rule of swallowed

nity completely has now free from If the be rights in Montana. civil person’s another Amend- seizures, on the Fourth based searches unreasonable Constitution, II, United ment to the States and Article Section Constitution, right, nothing the Montana is not clear then is. obligation agents stay Because of state out of people’s clearly homes a warrant is so set without forth the Federal and Constitutions, was upon State it incumbent the State to show some decision, statute, authority or clear other colorable which would have entry plaintiff’s into in of spite allowed the home that constitutional offered, date right question. on the in None has been majority and the fact, mentioned, In previously cites none. as the majority has done a of capable job distinguishing those which been authorities have cited by the defendants and State. majority imposed impossible The has an burden the plain- on

tiffs, is which to establish that some isolated encyclopedic decision or by person’s text could be construed those who to a wish violate words, rights support in of their conduct. In other plaintiffs have negative to prove a in order to establish that right had a which the majority initially clearly concedes is established. his majority’s 148 I also dissent from the Brophy,

¶ conclusion that in Sheriff, capacity County as and Stillwater were entitled to summary judgment dismissing against Dorwart’s 1983 claim them. A § local governmental entity and a of supervisor persons acting under color of liable, state noted majority, law are as for violations of constitu- tional when the violation results that governmental from en- tity’s supervisor’s case, policy. response or that In this in to written in- terrogatories, each defendant answered that the complained actions (i.e., illegal of search of Dorwart’s home and seizure of therein) found were “the usual customary manner performing of County Stillwater, a seizure a writ of execution on in the Montana.” words, County’s policy, implemented by other it was the as Brophy, Caraway, for Ames and supervisor apply to writs of execution as warrants, search spite fact no statute authorized their purpose plain language use for that and the on face of the writ in- I cluded no such authorization. would conclude that this practice and

policy Brophy County and Stillwater constituted “deliberate indif- rights. majority’s ference” to Dorwarts’ constitutional The decision to Brophy affirm the dismissal of and Stillwater is based on the qualified immunity same on which its unsound conclusion decision is i.e., clearly that Dorwart had no established to prior this based — entry from into search case to be free warrantless of his home. I incorrect, Brophy is applied believe that conclusion as it County, for the same reasons was incorrect when used Stillwater majority’s qualified immunity conclusion. justify the majority’s I dissent from the conclusion Dorwarts’ also dismissed because trespass properly claims for and conversion were and without a permission who entered the home without the officers good understanding faith of the law. acted on the basis of warrant writs, their have some merit if the on majority position might ex- purpose home for the of their face, entry into Dorwart’s authorized ecution, the writs were issued au- pursuant if the statutes to which Furthermore, However, suggest neither is true. entry. thorized decision, did not even discuss the Ramsey which ninety-six-year-old Amendment, entry into illegal cover for the provided Fourth home, subsequent Supreme U.S. Court decisions spite Dorwart’s warrant, type argument we would clearly require a which appearing before this litigant if made normally specious consider Court. forth I also dissent previously, all the same reasons set For attorney pursu- fees of Dorwart’s claim for majority’s denial

from However, that Dorwart’s repeating it bears 42 U.S.C. ant to § County’s or its officers’ enforcement not based on the 1983 claim was § entry which authorized the There were no state laws state laws. permission. and without his home without a warrant into Dorwart’s part opinion. first of its acknowledged as much in the majority attorney fees is Therefore, denying Dorwart’s rationalization for its and unsound. especially inconsistent majority’s with the conclusions summary, I concur seizures, unreasonable searches and to be free from

Dorwart’s major- I dissent from the process due were violated. and to privacy, consti- of Dorwart’s flagrant violations ity’s spite conclusion that 1983 be- to U.S.C. pursuant § no one is accountable rights, tutional had 100-year-old decision which nearly in a cover can be found cause I would re- place. issues in the first constitutional nothing to do with claim Dorwarts’ which dismissed District Court’s verse the for trial of and remand to 42 U.S.C. pursuant § damages claims. Dorwarts’ dissenting concurring and foregoing in the joins HUNT

JUSTICE opinion.

Case Details

Case Name: Dorwart v. Caraway

Court Name: Montana Supreme Court

Date Published: Aug 4, 1998

Citation: 966 P.2d 1121

Docket Number: 95-446

Court Abbreviation: Mont.