Dorwart v. Caraway

DORWART EDWARD RUSSELL DORWART, HARRY Appellants and Plaintiffs, Cross-Respondents,

v. individually, as CARAWAY, PAUL County deputy in the Stillwater Sheriff’s individually, DANNY and as AMES, Office; County deputy in the Stillwater Sheriff’s individually, CLIFF Office; BROPHY, County, Montana; as Sheriff of Stillwater STILLWATER, and COUNTY OF State of Montana, Respondents and Defendants, Cross-Appellants. No. 01-199.

Argued and Submitted March 2002. Decided October 2002. Rehearing Denied November 2002 MT 240. 312 Mont. 1. 58 P.3d 128. P.C., Thomas, Office, Red Gary R. Thomas Law Appellants: For Lodge. Hanson, Milch, Crowley, Haughey, Respondents:

For Steven R. Dietrich, Billings. Toole & Lawyers

For Amicus Montana Trial Association: Lawrence A. Anderson, Law, Attorney at Great Falls. Lawyers Stanley

For Amicus Montana Defense Trial Association: Kaleczyc, Mary Giddings, Browning, Kaleczyc, Berry T. K. & Hoven, Helena. Rights Dahood,

For Amicus Bill of Attorney Committee: Wade Law, Anaconda. JUSTICE Opinion TRIEWEILER delivered the of the Court. in Dorwart v. This matter previously before the Court (Dorwart I)- Caraway, MT 290 Mont. 966 P.2d 1121 There, we held that the Plaintiffs’ rights state constitutional to due process, privacy and the right to be free from unreasonable searches and seizures were violated. We remanded to the District Court for the Twenty County Second Judicial District in Stillwater for further damages attorney’s consideration the Plaintiffs’ claims for fees by rights. caused parties violation of those Both filed motions for summary judgment. private right The District Court held that a action is available for the violation of the state privacy and to be free from unreasonable searches and seizures and damages However, held that the recoverable. Court also immunity pursuant 2-9-103(1), MCA, Defendants were entitled to to § having reasonably previous relied on the Montana. law of Therefore, granted summary judgment the District Court to the Defendants, damages dismissed the Plaintiffs’ claims for and denied Plaintiffs’ attorney’s appeal claims for fees. Plaintiffs the District dismissing Court’s order complaint summary judgment. their cross-appeal Defendants the District Court’s conclusion that there exists in Montana a cause of action and claim for damages violation rights. part part of state constitutional We affirm in and reverse in judgment order and of the District Court. appeal The issues on are: rights guaranteed by the Montana 1. Does violation of give damages?

Constitution rise to a cause of action for affirmative, previous question 2. If the answer to the did immunity statutory the Defendants have based on the facts 2-9-103(1), pursuant case MCA? 3. If is a cause of action for caused violation of there constitution, if in rights guaranteed by

those the state and Defendants MCA, 2-9-103(1), not immune should this pursuant this case were § analogous qualified immunity qualified Court create to federal so, 1983, and, if immunity pursuant in claims to 42 U.S.C. applied as summary judgment in this entitled to on were Defendants case basis? it denied Plaintiffs’ claim for an 4. Did the District Court err when

¶6 attorney's fees? award

FACTUAL BACKGROUND taken, decision in following part, prior The facts are in from our Dorwart I are, discovery completed part, based on farther following remand this Court to the District Court. Dorwart, Plaintiff, Russell named as a defendant in two was County judgments

separate Stillwater Justice Court actions. Default against were him in actions and of execution were entered both writs 9, 1991, judgments April issued to those March 12 and enforce on respectively. evening 11, 1991, April operating On the while his motor

vehicle, by Defendant, Deputy Russell Dorwart Sheriff stopped was Danny Ames, and of execution. Ames served with two writs also alcohol, driving arrested Dorwart for under the influence of seized the pickup transported County truck and to the Jail. Dorwart Stillwater jail, After Dorwart was incarcerated in the either Ames or the Defendant, Deputy Caraway, Sheriff Paul advised Dorwart that the going of them property pursuant two were to his home to seize to the They only writs of execution. were advised Dorwart they unlocked door careful was back door but should be not to let his cat out entered his home. also when Dorwart advised deputies that his wallet and driver’s license on the dashboard car, driveway. Although his his parked mother’s which was deputies claim interpreted permission to have Dorwart’s remarks as home, they directly permission to enter his did not ask his did he nor grant Caraway Defendant, it. and Ames worked for Stillwater County Brophy. Sheriff Cliff residence, Caraway proceeded Ames and entered the Dorwart’s garage, personal property

house and the and seized various items of They pursuant to the writs of execution. also took Dorwart’s wallet from the of the car. dashboard taken, remand, depositions subsequent Caraway testified authority on

that he believed he had to enter Dorwart’s house based Dorwart, his his conversation with Justice of the conversation with Peace, Kober, Marilyn and the writ of execution that Kober issued. However, only he conceded that Kober’s order was the writ of by her that he execution she issued and all he was otherwise told go property. his He conceded that should to Dorwart’s house to seize jail his with Dorwart while Dorwart was conversation occurred 6 they going Ames told were to his house to

that after he or Dorwart property, simply seize he was told to use back door because get other doors locked and to be careful that the cat did not out. were Caraway that his oral conversation with Kober was not realized home, entry itself sufficient authorize into a he had no warrant home, agreed and he that the writ of execution did not enter Dorwart’s specifically him to enter residence and search it. authorize Dorwart’s Ames testified that he believed he was authorized to enter ¶12 and on his pursuant Dorwart’s home to the writs of execution based However, acknowledged he also that the conversation with Dorwart. specifically provide writs that he could enter the house and did thing to use the door only that the he was told Dorwart was back had advised that and not let the cat out after Dorwart been Caraway deputies going property. were to his house to seize Both and home, made upon entry Ames testified that into Dorwart’s neither nonexempt property. and distinguish exempt effort to between truck, returned pickup Dorwart’s its contents and his wallet were 18,1991, days April to him later. On Dorwart filed in Justice several Quash Property Court a Motion for Release of and to the Writs Execution, Exemption and other supported by an Affidavit affidavits, and asserting personal property which Ames Caraway garage exempt had from his and was either seized house 30,1991, belong September him. On from execution or did not property Justice Court ordered that all of the seized from Dorwart’s Dorwart garage rightful house and be returned to its owners. property jail. from the subsequently retrieved the

PROCEDURAL HISTORY 5, 1993, Plaintiffs, Harry and April Russell Dorwart On Dorwart, Ames, and the complaint Caraway, Brophy filed a in which Harry as defendants. The Plaintiff County of Stillwater were named Dorwart owned the home which Russell resided. unlawfully entered Caraway and Ames alleged Plaintiffs they an where conducted unlawful

Russell’s residence trespassed, invaded property, search and seizure of his unreasonable his privacy, wrongfully property, his violated his converted County Stillwater alleged Brophy It process to due of law. liable, grossly conduct and for vicariously deputies’ for the negligent supervision deputies. damages based on set forth claims complaint The Plaintiffs’ (right alleged violations of Article Sections

the Defendants’ seizures), unreasonable searches privacy), (right to be free from (right process) They and 17 to due of the Montana Constitution. also damages pursuant claimed to 42 U.S.C. 1983 for violation of their rights by the guaranteed Fourth and Fourteenth Amendments to the alleged right United States Constitution and for common trespass and conversion. Plaintiffs claim were entitled to the recovery attorney’s part fees as of both their federal and state causes complaint subsequently action. Dorwarts’ amended to state declaratory judgment claims for post-execution that Montana’s statutes were in violation of state and process federal to due law. August 7, 1995, On the District Court entered its first order

granting summary judgment. subject That order was the of our Dorwart I. It concluded decision postjudgment that Montana’s execution right statutes did violate Russell Dorwart’s process to due deputies law but had committed neither trespass nor conversion, nor had violated rights Dorwart’s constitutional to privacy or to free from unreasonable searches and Finally, seizures. the District Court held that although right Dorwart’s to process due violated, law had been deputies were qualified entitled to Fitzgerald (1982), to Harlow immunity pursuant v. 800, 102 457 U.S. 2727, 396, S.Ct. 73 L.Ed.2d Brophy and neither County nor Stillwater pursuant liable to 42 U.S.C. 1983. Dorwart’s claims for attorney’s fees were also denied. I, In Dorwart we held that Caraway because and Ames did not warrant,

have a search entry Dorwart did not consent to their of his home, and exigent there were no circumstances nor other exception established to the requirement, search warrant deputies’ entry into Dorwart’s home and seizure of his property violated his right to be free from pursuant unreasonable searches and seizures to I, II, Article of the Montana Constitution. Dorwart Section 27. We ¶ specifically also held that neither the writs execution themselves nor postjudgment Montana’s pursuant execution statutes which expressly writs were issued deputies directed or authorized the I, enter Dorwart Dorwart’s home to effectuate seizure his property. 33, 48 and 52. ¶¶ We held that the District Court erred when it concluded that the

deputies’ entry into right privacy Dorwart’s home did not violate his guaranteed II, by Constitution, Article Section 10 of the Montana held that because the erroneously District Court had concluded right privacy Dorwart’s and to be free from unreasonable searches violated, had seizures not been its consideration of Dorwart’s I, Dorwart prematurely. claims those violations had terminated ¶¶ to consider We, therefore, proceedings for further 60-61. remanded I, 61. constitutional claims. Dorwart ¶ those state 13, 25, Chapter Montana law in Title also held that because We 6, provides property that certain Montana Code Annotated Part of the judgment, a Montana debtors have exempt from execution to enforce due statutory exemptions protected interest in those property II, found at Article guarantees of the Montana Constitution process (Dorwart I, 75); post-execution and that Montana’s ¶ Section they did not right process Dorwart’s to due because statutes violated availability of property, him the seizure of his of the provide notice of execution, additional of where to locate statutory exemptions from his which to claim exemptions, procedures information about hearing provided prompt with a exemptions, and because he was I, from execution. Dorwart property exempt ¶ to claim his at which concluding that Dorwart’s state constitutional However, after violated, mistakenly we omitted process to due had been claim. further consideration of that remanding to the District Court for that at the time of Finally, majority of this Court concluded execute on his Caraway’s entry into Dorwart’s home to Ames’ and to be privacy, property, regarding the law his constitutional due as it interrelated process searches and seizures and to free from execution, clearly had not been regarding postjudgment summary Therefore, affirmed the District Court’s we established. conversion, trespass for common law dismissal of Dorwart’s claims attorney’s fees. and for damages pursuant to 42 U.S.C. § I, Dorwart 126 and 132. ¶¶ conclusion, we stated: arguments regarding

Thus, conclude that Dorwart’s we claims under Article attorney’s fees on his entitlement to must be 11 the Montana Constitution 10 and of Sections those conjunction in our remand of remanded proceedings. claims for further I,

Dorwart 134. ¶ claimed violations of However, has at all times because Dorwart ¶23 17, II, II, 11, also Article Section 10 and but just not Article Sections all of three prior opinion established violations and because our Constitution, properly our remand should Montana sections to the for violation ofhis of Dorwart’s claim included consideration have by Article Section process guaranteed to due Court, again moved parties District all Following remand to the ¶24 motion, of the Defendants’ support summary judgment. for authority support private to is no that there contended Defendants

9 damages for on of the Montana Constitution action based violations authorized, that if a cause of is are and direct action Defendants immunity analogous which qualified entitled to either to that statutory rights, immunity of federal or provided violations civil 2-9-103(1), to MCA. contended Dorwart is pursuant Defendants that § attorney’s entitled fees same he was not not to for the reason that attorney’s rights. to fees for of his entitled violation federal civil Plaintiffs entitled contended are to claim rights of violation their state constitutional based on the Restatement Torts, Supreme Court’s decision Bivens v. Six Unknown of the U.S. in Agents Fed. Narcotics (1971), 1999, 403 91 29 U.S. S.Ct. L.Ed.2d 619, and upon English interpreted based as in Common Law numerous other states. In a thoughtful comprehensive order and memorandum 17,2000,

entered the District Court on November the District Court plaintiffs concluded after consideration various authorities that in general bring are money damages entitled to a claim for based on the in case, violation their state constitutional but in Defendants had acted reliance on the law it at as existed the time were, therefore, statutory of their conduct immunity entitled to 2-9-103(1), pursuant to MCA. it Because held that Defendants were to immunity pursuant statutory law, entitled to the Court did not extensively discuss concept qualified immunity the common law not did determine in applied whether this case. Pursuant general rule prevailing parties in civil actions entitled to attorney’s fees absent agreement expressed statutory contractual authority and special because neither was found this case and no exist, attorney’s circumstances were found fees denied. parties Both appeal. part part We affirm in reverse and judgment

order of the District Court.

STANDARD OF REVIEW Our granting standard review of a district court’s order summary novo; judgment pursuant is de we the same apply criteria 56, M.R.Civ.P., court’s decision. Clark v. Rule that controls district Systems, Eagle Inc. (1996), 279, 283, 279 Mont. 927 P.2d (citations omitted). party seeking summary judgment A must establish any genuine the absence of issue of material fact which would allow nonmoving party to recover judgment an entitlement as a Clark, 56(c), M.R.Civ.P.; matter law. Rule at Mont.

P.2d 997-98. Here, discovery remand, our spite subsequent of additional

10 appeal on relate undisputed and issues the material facts are still district court’s those facts. We review a solely applies how the law those conclusions are correct. determine whether conclusions of law to (1997), 196, 205, State, By Through State 281 Mont. Albright v. (citation omitted). 933 P.2d 821

DISCUSSION ISSUE 1 by Constitution guaranteed the Montana rights Does violation of damages? of for give rise to a cause action recognized implied an cause of 1998, twenty-one states had By had Three additional states violations. action for state constitutional certain narrow circumstances. do so under indicated would by twenty-fifth in a state recognized has private A cause of action been statutes which authorize four states have enacted federal courts and rights. Seven states constitutional action for violation of state causes of causes of action. See Gail rejected state constitutional specifically have The Future Brown: Edelstein, Donoghue & Jonathan I. of Life After York, 42 Actions in New Sch. L. Rev. State Tort N.Y.L. Constitutional (1998).1 Furthermore, legal scholarship on majority 447, 447 n.2 expansive has an tort actions favored of state constitutional topic provides: Footnote two Brown, Appeals’ decision in 19 states York Court of Prior to the New implied for state constitutional recognized cause of action The Rico an Puerto violations has been a cause of action prior in which such the Brown decision. states Louisiana, California, Illinois, highest recognized state court Mexico, Carolina, Pennsylvania, Jersey, Maryland, Michigan, North New New Arkansas, Maine, Utah, Virginia. Four additional states: and West Vermont providing private Massachusetts, Nebraska, of state constitutional causes of statutes have enacted certain circumstances. under action for violation Direct also been state’s have Wisconsin Constitutions the Florida and causes of action based on states, by either but not recognized courts of those certain lower appeals’ addition, decision in subsequent the court of highest In court. right recognized private of action for Brown, Supreme a the Connecticut resolving provisions, an issue constitutional certain Connecticut violations of which had Binette v. among See courts in that state. previously dispute the lower been in (Conn.Mar. 10,1998). SC-15547, Sabo, 3at No. Texas, Tennessee, Hawaii, Colorado, Georgia, Oregon, Seven states: rejected of action. constitutional causes Washington, specifically state have Alaska, Hampshire, courts have never addition, and Ohio although New action, they have indicated recognized private they constitutional state Finally, private right of circumstances. under certain narrow would do so Constitution, only by federal but implied Island from the Rhode has been action courts. have include states which list does not noted that this It should be further just requiring provisions upon recognized rights constitutional of action based public infra note 284 takings private property for use. See compensation and for compensation place just clauses (discussing unique accompanying text jurisprudence). tort in constitutional analytical L. Rev. at 450 n.12. The right of action. N.Y.L. Sch. of claims violation of state framework consideration However, any of a varies from state state. discussion constitutions with Bivens. rights begins claim for violation Bivens, plaintiff complained agents In narcotics federal him, apartment, his manacled him in front of his entered arrested family. family, threatened to arrest his entire He was then and taken interrogated, booked, he to a federal courthouse where for subjected complaint to a visual He filed a strip search. agents’ his search and arrest and for the use warrantless unreasonable complaint by of force. That was dismissed the district court. The by dismissal was affirmed the Second Court of Appeals. Circuit However, the Supreme granted U.S. Court certiorari and reversed appeal, contended, On do agents dismissal. defendant federal as case, remedy the Defendants that Bivens’ be exclusive should pursuant They state to tort law. contended that because he had a state remedy, tort there was no need for a cause action to his vindicate rights. Supreme disagreed distinguished The common law torts from the violation rights. of constitutional language repeatedly issues, by considering cited state courts the same the Court stated:

Respondents seek to treat the relationship between a citizen and agent unconstitutionally exercising federal authority his no as relationship private different from the between In so two citizens. doing, ignore power, granted, the fact that once does disappear magic wrongfully like a when gift agent it is used. An acting-albeit unconstitutionally-in the name ofthe United States possesses a greater capacity far for harm than an individual trespasser exercising no authority other than his own. Accordingly, clear, as our cases Fourth Amendment make operates upon as a power limitation the exercise of federal regardless of whether the State in jurisdiction power whose penalize is exercised would prohibit the identical act if engaged aby private guarantees It citizen. to citizens of the United States absolute to be free from unreasonable searches authority. seizures carried out virtue of federal And ‘where federally invaded, protected rights have been has been rule beginning from the alert adjust that courts will be to their so as grant necessary [Citations omitted.] remedies relief.’ Bivens, 391-92, U.S. 91 S.Ct. at 2002. proceeded following The Court make the distinction between protected by regulating trespass

those interests state laws and those free from unreasonable right to be protected by the constitutional and seizures: searches and the regulating trespass protected state laws

The interests by the Fourth protected and those privacy, invasion of unreasonable searches guarantee against Amendment’s Thus, may hostile. we bar seizures, may inconsistent or even be intruder, the police or call against private an unwelcome the door availability such seeking entrance. persists if he may the State privacy lead protection alternative means for the A liability any consequent trespass. imposition of to restrict own, will not asserting authority other than his citizen, no private granted, demands, if he and is normally trespass liable in admission But one who demands admission to another’s house. authority in a far different stands under a claim of federal power by a federal mere invocation of federal position. The attempt normally futile will render enforcement official police; and entry by resort to the local an unlawful or arrest resist likely unlock the door as well. authority enter is a claim of citizen, except in the safety no for the Tn cases there is such tribunals, have been rights for which judicial of the protection in its professing to act government, of the invaded the officers resistance, of to him the alternative There remains but name. omitted.] [Citations crime.’ may which amount to 394-95, Bivens, 91 S.Ct. at 2003-04. 403 U.S. Amendment did the Fourth The Court held while Supreme

¶34 money by an award of its enforcement expressly provide for not regarded damages have been violation, “[hjistorically, damages for its interests personal an ordinary remedy for invasion as the make remedy to may any use available liberty. courts [F]ederal . . . Bivens, 395-96, 91 S.Ct. at 2004 403 U.S. at wrong done.” good the (citations omitted). Court held that: Supreme The

¶35 a cause of complaint states petitioner’s Having concluded 2001-2004, we Amendment, supra, at under the Fourth action damages for money recover is entitled to petitioner hold that of the agents’ the violation as a result of injuries he has suffered Amendment. 397, at 2005.

Bivens, U.S. at 91 S.Ct. 403 money damages held that Court has Supreme Subsequently guarantee the Fifth Amendment’s violations of can recovered for be cruel and against prohibition Amendment’s Eighth and the process due 228, (1979), 99 442 U.S. Passman See Davis v. punishment. unusual

13 (1980), 846, 14, 446 2264, v. Green U.S. S.Ct. 60 L.Ed.2d Carlson S.Ct. L.Ed.2d respectively. progeny clearly its out general principle of Bivens and is set (Second) (1979), provides: in Restatement of Torts 874A which persons by legislative provision protects When a a class of provide conduct a proscribing requiring certain but does violation, may, court remedy civil for the if it determines that remedy appropriate of the purpose furtherance legislation provision, and needed to assure the effectiveness of action, right using accord class a injured to an member of the existing analogous a suitable tort action or a new cause of action to an existing tort action. 874A, a, clear “legislative Section comment makes that the term

provision” provision. includes a constitutional In permitted those which a claim states have considered for damages rights, analytical of state violation various employed. Vermont, models have been In the state court used supreme two-step inquiry by provisions a which it first considered whether the so, self-executing and, monetary at issue were damages if whether remedy as a general should be available for a violation. It held that provision guaranteeing right life enjoy self-executing was not but specific guarantee that the speech self-executing to free considering Restatement, and after Bivens and may held that it appropriate monetary damages to allow for violation of constitutional rights where the legislature has no other adequate fashioned remedial (Vt. 1995), scheme. See v. Gerhart Shields 658 A.2d (Md. Widgeon 1984), Hosp. v. Eastern Shore Center A.2d 921, Maryland of Appeals plaintiff considered whether the could recover for the of his violation state to due process to be free from unreasonable searches and seizures. The gave Supreme court little consideration to Vermont Court’s two- part analysis significant but did consider that state’s constitutional provision application England. law of It noted common that:

Under England, rights, the common law of where individual such protected by [to as those be now Article 26 free from unreasonable seizures], preserved by searches a fundamental Carta), (e.g., Magna rights document the a violation those generally damages. could be remedied a traditional action right the as a trespass, violation of constitutional was viewed giving trespass rise to a action.

Widgeon, 479 A.2d at 924. precedent English Based on the historical established the of the U.S. Maryland court’s consideration

Common Law and Bivens, person a that court held that when Supreme Court’s decision case, in that those rights at issue deprived of the constitutional damages. by bringing a common law action rights may enforced be contention response to the defendant’s Widgeon, 479 A.2d at 929. state tort to him remedies under plaintiff had available because should not law, of action for violation constitutional a cause recognized, Maryland court stated: be set of rule, however, particular a

It where is well-settled action, they may be to alternative causes gives facts rise declaration, several remedies together in one and where brought judgment. to final required prior an election is not requested, circumstances, a constitutional some state Additionally, under wholly an interest that is may recognize preserve provision Thus, statutes. state common law and unprotected under thereof, remedies, is not a or a lack existence of other available [Citations us. of the issue before persuasive basis for resolution omitted.]

Widgeon, 479 A.2d at 928-29. (La. 1990), 567 & Fisheries Department In Moresi v. of Wildlife of Louisiana concluded Supreme So.2d damages for bring a cause of action for in that case could plaintiff free from and to be right privacy violation of his state constitutional on That its decision and seizures. court based unreasonable searches Courts Utah English cited Common Law. previously and the Bivens Vermont, analysis employed York, following two-part and New those to be free rights in states the state constitutional have concluded equal protection and punishment, unusual from cruel and self-executing and and seizures are searches free from unreasonable Bivens, damages for Law and English Common that based on Bott rights are recoverable. See of those state constitutional violations (Utah by Spackman ex rel. 1996), limited 922 P.2d v. DeLand (Utah 2000), 533; Brown v. State 16 P.3d Spackman v. Board of Educ. (N.Y. 1996), 1129. 674 N.E.2d at the same Connecticut has arrived recently, the State of More v. Sabo See Binette and the Restatement. on Bivens

conclusion based an (Conn. provides decision The Connecticut 1998), A.2d 688. by this issue had resolved summary how other states excellent court also The Connecticut Binette, 710 A.2d at 696-97. See such as law torts from common torts distinguished It stated: assault, or conversion. trespass beating arising harm nature of the in the The difference by a police administered officer or from an officer’s home, unconstitutional invasion of a person’s hand, on the one and an assault or trespass against committed private one citizen another, by hand, on the other stems from the fundamental difference in the nature of the two sets of A relationships. private generally citizen is obliged only to respect privacy rights and, therefore, others to refrain from engaging assaultive uninvited, conduct or from intruding, into another’s A residence. police legal obligation, however, officer’s beyond extends far of his or her fellow citizens: the only required officer not is respect the rights citizens, of other but is sworn protect and rights. those discharge order to that considerable defend responsibility, he or she is vested with extraordinary authority. Consequently, when a officer, law enforcement acting with the apparent imprimatur state, not only protect fails to citizen’s rights but affirmatively rights, violates those is manifest that such an abuse authority, with its concomitant trust, breach likely different, to have a and even more harmful, emotional psychological and effect on aggrieved citizen resulting than that from the tortious conduct a private citizen.

Binette, 710 A.2d at 698. We conclude that the Bivens line of authority buttressed (Second)

874A of the Restatement of Torts are sound reasons for applying a cause of action for money damages for violations of those self-executing provisions of the Montana Constitution. We also conclude that rights protected by those 10,11 Article Sections and 17 of the Montana Constitution self-executing are based on the same analysis employed by the Supreme Court of Vermont in Shields. We conclude that this result is further compelled by our statutory own law and, in particular, 27-1-202, 1-1-109 and 1-1-109, §§ MCA. Section MCA, provides that: England, common law of so far as it is repugnant to or

inconsistent with the constitution of the United States or the constitution or state, laws of this is the rule of decision all the courts of this state. 27-1-202, MCA,

Section provides that: Every person who suffers detriment from the unlawful act or omission of may another person recover from the in fault a compensation money, therefor in damages. which is called Either statute standing alone reinforces our decision based on the legislative policy However, of this state. when together, considered the Montana II, Section 16 of found at Article

with statutory injury, body of remedy every Constitution to a permits no other result. Curia, Defense Trial Amicus Montana The Defendant Association, already common law tort urge that available Lawyers adequate remedies for trespass remedies such as conversion and, therefore, a cause of action alleged by the Plaintiffs the conduct should not authorized. of the Montana Constitution for violation great that there is a However, agree previous authorities we private one individual wrongs committed distinction between authority under of the state. wrongs committed against another relationships among regulate intended to Common law causes of action type to redress the adequate are not and between individuals rights. damage by caused the invasion of this issue has been resolved Finally, Defendants claim that 460, 417. (1991), 248 Mont. 813 P.2d Irving v. Dist. No. 1-1A School There, a matter However, distinguishable. we held as Irving clearly is damage a school board’s violation there was no of law II, of the at Article Section 9 open meeting law found Montana’s remedy provided a Legislature had Montana Constitution because at 2-3-213, MCA, voided action taken which would have pursuant § do so. by plaintiff made meeting and no effort had been closed plaintiffs held that 465, P.2d at 420. We Irving, 248 Mont. at 813 meeting but from action damages did not arise from closure of Irving, 248 invalidated. meeting taken at the which could have been 465, Any language additional about 813 P.2d at Mont. to 42 pursuant of a claim made being duplicative constitutional claim merely dicta. unnecessary to the decision and was U.S.C. 1983 was § the District Court reasons, we conclude that For these is available for money damages action for correctly held that a cause of 10 and 11 by Article Sections rights guaranteed violation of those a direct addition, conclude that we of the Montana Constitution. damages for violation money is available cause of action for Montana II, Section 17 of the rights guaranteed Article Plaintiffs’ of the Plaintiffs’ Constitution, for further consideration and remand sections of Article II. to all three pursuant claims for ISSUE facts immunity based on the statutory Did Defendants have 2-9-103(1), MCA? pursuant in this case to § 2-9-103(1), MCA, as follows: provides Section entity acts governmental of a officer, agent, employee or If an faith, or and under good corruption, without malice is declared invalid as authority subsequently of law and that law in conflict with the constitution of Montana or the constitution of States, any employee the United neither he nor other officer or governmental entity represents governmental he nor the entity represents civilly he, he is liable in action in which officer, governmental entity such other or such would not have [Emphasis been liable had the been valid. added.] District Caraway Court held that because Ames and acted in (citing Ramsey (1902), rebanee on the law v. Burns 27 Mont. Boyd (1886), 524, 29

P. v. United States 116 U.S. 6 S.Ct. 746) L.Ed. corruption,” because neither acted with “malice or all immunity Defendants entitled to pursuant as a matter of law 2-9-103(1), problem analysis MCA. The with the District Court’s First, Caraway Ames, twofold. on testimony, based their own did rely anything they on assumed to true Ramsey based on Boyd. They relied on the of execution writ and on Dorwart’s admonishment to use the Second, back door and not let the cat out. we postjudgment did not conclude that execution statutes were authorizing entry unconstitutional into Dorwart’s home. heldWe there nothing in the writ of execution or the statutes pursuant entry to which were issued did which authorize into any language Dorwart’s home. Neither was there in the writ of execution nor in the execution statutes which authorized seizure of nonexempt property owned specifically Dorwart or others. We stated:

Here, neither themselves, the writs of execution post- nor the judgment pursuant execution statutes to which the writs were issued, expressly deputies directed or authorized the to enter private Dorwart’s residence to effectuate the seizure of his property.

Moreover, nothing in post-judgment execution statutes expressly entry authorizes into a private home for the purposes executing a writ of execution. While the execution levy statutes judgment authorize on-or “seizure” of-a debtor’s personal property pursuant execution, to a they writ do not private authorize officials to enter homes to search for that property. [Citations omitted.] I,

Dorwart ¶¶ Therefore, Caraway and Ames did enter not Dorwart’s home nonexempt property pursuant seize to a statute which since has pursuant held unconstitutional. The execution statute to which been first they entry place entered the home did not authorize their nonexempt property. seizure of For these and did not authorize their 2-9-103(1), MCA, reasons, inapplicable to their we conclude § immunity. provided statutory not with conduct damages However, any conclude that to the extent claim for we also process to due is based on a failure to violation of Dorwart’s him hearing exempt property timely the notice of and a provide decision, by those claims are a result of the required prior our inadequacy recovery statutes’ constitutional for those execution inadequacies statutory immunity provided is barred procedural 2-9-103(1), of the Plaintiffs’ MCA. The District Court’s dismissal § statutory immunity is otherwise reversed. claims based on

ISSUE immunity analogous to qualified this Court create federal Should immunity pursuant 42 U.S.C. applied as in claims qualified § summary judgment and, so, in this case entitled to if were Defendants on that basis? constitutional Damages may recovered for violation of federal be provides 1983. That section that:

rights pursuant to U.S.C. § statute, ordinance, who, any under color of Every person custom, subjects, or regulation, usage, any or State... causes person citizen of the United States or other subjected, any rights, deprivation thereof to the jurisdiction within the laws, by the Constitution and privileges, or immunities secured law, injured in an action at suit party shall be liable to the for redress .... equity, proper proceeding or other Harlow, qualified held that or However, Supreme necessary competing good immunity is sometimes to balance faith right and of a constitutional damages for violation values authority. The Court held that: vigorous exercise of official discretionary functions performing [GJovemment officials as liability for civil insofar generally are shielded from statutory clearly not violate established their conduct does person would have rights of which a reasonable omitted.] [Citations known. at 2738.

Harlow, 457 U.S. at 102 S.Ct. immunity the Plaintiffs’ claims based to bar applied qualified We Dorwart There held that the law on which 1983 in Dorwart I. we on at the clearly established asserting his federal claim was relied in Caraway qualified Ames were entitled to time that it was violated.

19 I, and seizure claim. Dorwart immunity ¶ for Dorwart’s 1983 search § qualified are also entitled to Defendants contend that state immunity liability for violation of the Plaintiffs’ held rights. They contend that other state courts have so constitutional (Me. Moressi; 1994), examples and cite as Jenness v. Nickerson 637 (Mass. 1989), 1230; 1152; Healy A.2d v. 537 N.E.2d Duarte Curia, federal decisions. Defendants and Amicus Montana numerous Lawyers Association, policy contend that the same Defense Trial qualified immunity to justify application considerations which damage rights of federal constitutional should claims violation rights constitutional and that apply to claims violation state qualified immunity previously the issue of has been because favor, they are entitled determined in the Defendants’ to have summary judgment District Court’s affirmed. Dorwarts contend that this Court should decline to follow the regarding qualified immunity

federal it lead to a law because would procedural quagmire, ignorance reward of constitutional efficiency resolving detract from constitutional claims. Dahood, In amicus briefs filed Chairman the Bill of Wade

Rights Convention, Committee of the 1972 Montana Constitutional Lawyers Association, and the Montana Trial Amici contend that the adoption qualified immunity ignore in Montana would fundamental They differences federal and our state between constitution. government sovereign immunity contend that the federal has reserved waived, except citing to the extent that it is United States v. Mitchell (1980), 535, 538, 1349, 1351, 445 U.S. 100 S.Ct. 63 L.Ed.2d but sovereign immunity except that the Montana Constitution abolishes readopted by Legislature, to the extent of the two-thirds They citing Article Section 18 of the Montana Constitution. contend immunity arising that federal is a common law construct qualified long sovereign immunity recognized by from the tradition of as (1997), McKnight 521 U.S. Supreme Court Richardson v. 2100, 138

S.Ct. L.Ed.2d 540. Although most state courts have considered the issue have which qualified immunity, followed the federal law of not all have done so. (Md. 1303, 1314, City 1988), v. 541 A.2d Clea Council Baltimore Maryland rejected immunity as a defense Appeals qualified Court of following Maryland to violations of the Constitution with the explanation: hand, provisions

On the other like Articles or 26 Maryland III, Article of the Rights, Declaration of Maryland Constitution, specifically designed protect against types by government citizens certain of unlawful acts immunity government officials. To accord to the responsible officials, and an leave individual remediless his when rights violated, constitutional would be inconsistent with the purpose provisions. also, of the constitutional It as frankly would recognized by Court, counsel for Officer Leonard in this largely nugatory render the cause of action for violation of constitutional Mason, Heinze, recognized Widgeon, Weyler, and other cases. agree Maryland While we with the Court ofAppeals,

¶61 we find more compelling immunity the historical for federal basis and our own provisions governmental eliminate immunity which protect access to our courts. Mitchell, 538, 100 Supreme In 445 U.S. at S.Ct. at

¶62 stated that: elementary States,

It is sovereign, “[t]he United as is sued..., immune suit as save it consents to be and the terms any of its consent court define be sued that court’s jurisdiction immunity to entertain A sovereign the suit.” waiver of implied unequivocally expressed.” “cannot be but must be In the consent, then, congressional absence clear “there is no jurisdiction in the Court of Claims more than other court against to entertain suits the United [Citations omitted.] States.” Supreme explained The Court has also the difference between claim qualified immunity and a defense ato on the merits as well as the deeply immunity rooted common law traditions for at a federal Richardson, level in Richardson. In the Court was with the presented question qualified immunity applied of whether could be to bar claims by prisoners injured by guards Tennessee claimed to at who have been prison guards employed by private prison. The Court held that immunity private qualified by firm are not entitled to a from suit Richardson, 412, 117 prisoners charging a 1983 violation. 521 U.S. at S.Ct. Richardson, In 521 U.S. at 117 S.Ct. at the Court ‘immunity from suit’

explained that “a distinction exists between an may legal legal [A] and other kinds of defenses.... defense well involve wrong,’ immunity enjoys ‘the essence of the an frees one who while It wrongly.” from a lawsuit whether or not he acted concluded immunity government employee deeply for a rooted in while immunity applicable comparable common law there is no tradition employed prison guards. privately immunity in Montana for found Likewise, comparable there is no rights. of state constitutional employees in violation the acts of state immunity, the Montana fact, contrary presumption to the federal immunity in the II, 18, prohibits at Article Section State Constitution following language: counties, cities, towns, and all other local state,

The injury immunity no from suit for governmental entities shall have may except specifically provided as be person property, to a legislature. by a vote of each house of two-third in this case a two-thirds vote of We need not decide whether immunity can in fact created which would Legislature qualified be provisions render unenforceable other of the same constitution. argument is not us. Legislature clearly has not done so and that before Furthermore, Article Section 16 of the Montana Constitution “[cjourts justice every person, shall provides open remedy every injury person, property, or speedy afforded for character.” Richardson, immunity pointed qualified As out in is not a defense

¶68 wrongdoer liability to the merits of a claim but frees a whether wrongly. Therefore, adoption not he acted qualified or or she of immunity in Montana would also be inconsistent with the justice requirement speedy that courts of afford a remedy recognized by injury person, for those claims law for property or character. reasons, immunity, qualified For these we conclude that as

¶69 I, this Court in Dorwart by applied by established federal law and by plaintiffs pursuant those claims filed is not bar to U.S.C. 1983 § applicable by to those claims filed the Plaintiffs for violation of those rights guaranteed the Montana State Constitution.

ISSUE 4 for an Did the District Court err when it denied Plaintiffs’ claim ¶70 attorney’s award of fees? that the violation of their state constitutional Dorwarts contend attorney’s fees in addition to

rights entitled them to an award of support of that damages might proven and recoverable. whatever argument, attorney’s Plaintiffs fees are recoverable contend that fees are pursuant claims to 42 1983 and successful U.S.C. § rights by state constitutional necessarily recoverable for vindication of bringing might a claim otherwise analogy and because the cost did argument, Prior to oral Plaintiffs outweigh expected benefits. attorney’s pursuant claim fees to the not nor their entitlement brief private attorney general theory in School Trust v. adopted which we State ex rel. Bd. of Com’rs, 67, 296 263, 402, 67, 989 1999 MT Mont. ¶ ¶ 800, Therefore, P.2d we will not consider ¶ Plaintiffs’ claim for attorney's fees on that basis. The attorney’s Defendants contend that an award of fees under unjust circumstances in this case would be for the reasons set forth

in Dorwart I. Amicus Curia, Lawyers Montana Defense Trial Association, legislative responsibility contends that it is a to determine when fees are recoverable and it has not created a for the recovery under the circumstances this case. The District Court concluded that: general rule in Montana is that “the prevailing party in a may

civil action attorney’s recover fees absent contractual v. agreement Parker Elder express statutory authority.” (1992), 270, 271, 1236, 254 Mont. 836 P.2d which cited Harris v. Bauer and Martin v. Crown Life (1988), 230 Mont. 749 P.2d Insurance Co. (1983), 202 Mont. 658 P.2d 1099. There is no agreement contractual providing attorney’s fees in this case. Plaintiff has not cited providing attorney's statute fees. The District Court was correct. Based on the issue as it has parties’ been framed arguments presented and the authorities us, authority to we conclude that no has been established for an award attorney’s Therefore, fees to the Plaintiffs in this case. affirm we District denial attorney's Court’s of Plaintiffs’ claim for fees.

SUMMARY case, We conclude that the at issue in this Article 10,11, Sections Constitution, self-executing 17 the Montana pursuant English and that adopted by Common as Law (Second) Montana, Torts, State of 874A of the Restatement analogous law, Bivens, federal including in combination with the clear delegates intent of those to the Montana Constitution that courts be open injuries character, for redress of person, property, to that a damages specified claim from violation of the state constitutional presented can be as a cause of action in Montana. We 2-9-103(1), MCA, furthermore conclude that is a defense to the Plaintiffs’ claims based on the facts in this case and make no constitutionality. determination about its conclude that qualified We Court in Harlow is not a immunity by Supreme as described the U.S. to defense claims for for violation of Montana constitutional rights. And, finally, arguments we conclude that based on the presented case, authorities in this the Plaintiffs are not entitled to the

23 attorney’s fees. recovery of It is essential precious. left alone-is right privacy-to be authors of of that than the more aware of life. No one was quality

our lengths great conspicuous went our Constitution who correctly anticipated would be preserve it in the face of what technological ability developing increasing pressure and political to erode it. thing. a by a fellow citizen is bad privacy of individual Invasion governmental A culture of agents the state or its is worse.

Invasion of all. To be worst avoid disregard privacy for the would short-sighted popular political possibility in the face of sometimes of remedies. judiciary with a full arsenal vigilant sentiment will take state year’s anniversary of our Today, recognition of this thirtieth it, far-sighted delegates who crafted we add and those constitution damages to that arsenal. cause of action for part reasons, part we affirm in and reverse For these summary judgment.

District Court’s order REGNIER, COTTER, LEAPHART NELSON JUSTICES concur. specially

JUSTICE concurs. NELSON my Opinion. discussing I in our Before the substance concur concurrence, however, Chief Justice special compelled I am to address my Gray’s Opinion-and presumably special that our contention regards our the case” doctrine as concurrence-violate the “law of of the case holding process. agree on due that the law discussion and rule; applied an it is axiomatic that we have important doctrine is Notwithstanding, applicable is not in the many times. this doctrine this case vis-a-vis Dorwart I. present given posture situation First the law. dissent, Gray Chief Justice relies on Calcaterra v. Montana In her 764, 9,

Resources, 193, 9, 249, 9, 32 P.3d 2001 MT 306 Mont. ¶ ¶ ¶ doctrine, case an earlier proposition that under the law of the issue the same resolving particular decision this Court between However, binding relitigated. and cannot be parties in the same case is not that “the doctrine of law of the case Calcaterra also stated may exceptions application to the inviolable and that there 121, 13, Gilder, MT Calcaterra, (citing State v. 2001 ¶ doctrine.” ¶ 13). such set forth one Mont. 28 P.3d We ¶ ¶ (1977), 179, 185, Mont. 573 P.2d Zimmerman exception in State v. 174, 178, we noted wherein case] exists rule the law of the general [of to this exception

an further District Court for must be remanded to the where the case 24

proceedings because of reversal on an unrelated issue. In such case this may correct a manifest error in opinion its former and announce a ruling applied different prospectively proceedings future in exception the case. This general to the rule recognized in Montana at least since 1955 when we held that the law of the case announced in the appeal, first and which governed the trial, second prevent does not the appellate court from correcting a manifest error in its former opinion apply future proceedings where doing promised so justice without injury substantial to anyone. (1955), 449, State v. Hale 129 Mont. 291 P.2d exceptions 229. Such readily where, are more applied as here, prior by decision is a divided court. Perkins v. Kramer (1948), 595, 121 Mont. 198 P.2d 475. Moreover, one of the cases by Gray cited Chief Justice

authoring Calcaterra noted following comment on the law of the by case doctrine Justice Oliver Wendell Holmes: In the absence of phrase, case, statute the of the applied as previous the effect of orders on the later rendering action them in case, merely the same expresses practice generally of courts reopen to refuse to decided, what has been not a limit to their power.

Gilder, (quoting Messenger 11 (1912), 436, 444, ¶ v.Anderson 225 U.S. 1152) added). 739, 32 S.Ct. (emphasis 56 L.Ed. Chief Gray Justice also maintains in her dissent that “the law of

the case prohibits doctrine the Court’s remand of the state process constitutional due point.” claim at this On contrary, several of this Court’s prior decisions, recognized we application of the law of the case doctrine

is limited to those actually issues which were decided and were necessary to the decision. The does doctrine not extend so far as to include consequential, incidental, matter which was or not decided [Emphasis the court. added.] Rilley (1970), 91, 93, v. 998, Phalen 156 Mont. (quoting 475 P.2d (1966), 429, O’Brien v. 439-40, Great Northern R. Co. 148 Mont. 716). 710, State, P.2d 62, 16, 288 See also Sanders v. 1998 MT Mont. ¶ 143, 16, subjudice, 955 P.2d 16. In the case ¶ Dorwart’s claim ¶ violating ignored his to due process and, I remand, Dorwart on the District Court refused to address the Thus, issue because this Court failed to address init Dorwart I. doctrine, therefore, issue was decided. The law of the never case does apply. said, my Opinion. With that I turn to separate Our resolution of Agents (1971), 403 Six using cause Bivens v. Unknown Named as and the common law 388, 91 29 L.Ed.2d U.S. S.Ct. is appropriate for our decision components analytical construct framed arguments appeal on given the manner in winch state of the law. parties given present discussed, firmly Nonetheless, believe for reasons hereinafter jurisprudence, federal constitutional that, independent federal law, authority, the for foundation authority, the common other is private of action for constitutional violations causes and in the language in of Montana’s 1972 Constitution found the suggest it is proceedings of the Constitutional Convention. greater the acknowledge principle, because important to guarantees rights by of individual afforded Montana’s Constitution may by bounded nor frustrated federal court decisions be neither weakening which, seeming increasing frequency, are similar protections Department See Trankel of the federal constitution. v. of 348, 362, 938 614, 623 (holding Military (1997), 282 P.2d Mont. Affairs Montana, II, in of that the sentence Article Section Constitution legal guarantees right against an of full redress employee the mandatory executing and and “leaves no room for parties third self of states erosion on what federal courts or the courts other would based states.”). to federal or the of other pursuant do laws laws Moreover, guarantees rights Montana’s that are not Constitution right a clean and provided for in the federal constitution-the to necessities, environment, right pursue the life’s basic the healthful (all right enjoy protected and defend one’s life and liberties under (Article II, 3); 4); right dignity II, Section the Article Section the of governmental agency in right public participation operation of the of (Article making II, right 8); decision Section the to examine government government the of documents and observe deliberations (Article (Article 9); II, right privacy of entities Section the individual (Article rights II, 15); II, 10); persons the of not adults Section Section (Article II, legal right of access to the courts and to full redress the (Article 18); immunity II, 16); sovereign the waiver of Section Section initiation regarding proceedings, the of criminal criminal rights (Article rights detention, of the convicted imprisonment debt right to an award of II, respectively); 27 and 28 Sections (Article II, 29); Section attorney in eminent domain cases fees others. fact, Larry Snyder state Elison Fritz point Professors parallel in Rights have no

that seventeen of Montana’s Declaration Larry M. Elison and Fritz of the U.S. Constitution. Rights the Bill of 26

Snyder, The Montana State Guide, Constitution: AReference (2001) (hereinafter ELISON) (citing Reliance on Collins, Ronald K. L. State Disaster, Constitutions-The Montana 1095, 1122 63 Tex. L.Rev. (1985)). Thus, it is important right that the of direct action to protect these distinctive Montana constitutional rights by not be restricted jurisprudence that is limited to a few rights constitutional that are common to both the constitutions of United States and Montana.or historically that were actionable at common law. I, stated Dorwart As in constitutional violated

case at guaranteeing right bar were those free unreasonable searches and under seizures the Fourth Amendment and II, Article Sections 10 of Montana’s Constitution and the process to due protected law Fourteenth Amendment and Article Section 17. At least as Bivens stands, the federal now and the line cases following our support decision here to create a remedy rights. for the violations these In Bivens, Supreme Court, the United States recognizing for the implied private tort, first time an for a remedy held that the victim may of a Fourth Amendment violation federal officers bring money damages against suit for the officers in federal court. Bivens, 396-97, U.S. 91 S.Ct. at 2004-05. As stated our Opinion, following, decade Bivens the Court extended include implied damages remedy an for violation of Fifth Amendment Due (Davis v. Passman (1979), 228, 2264, Process Clause 442 U.S. 99 S.Ct. 846) 60 L.Ed.2d and for the guarantee against violation of cruel and (Carlson punishment unusual the Eighth v. Green under Amendment 15). (1980), 14, 100 1468, 446 U.S. 64 S.Ct. L.Ed.2d Carlson, However, since Supreme consistently Court has extend Bivens to cover violations of refused to any new constitutional any torts or Corp. Correctional Serv. v. category new defendants. (2001), Malesko 61, 534 515, U.S. 122 S.Ct. 151 L.Ed.2d 456. In Correctional Services the Court refused to extend Bivens to authorize (there right a for against private entity private action a a prison operated under Prisons), contract to the federal Bureau of even though corporation acting under color of federal law. Services, Correctional at_, 534 U.S. 122 at The S.Ct. Court that Bivens made it clear is to deter individual federal officers from committing constitutional violations Court created and only twice extended otherwise nonexistent cause of action remedy lacked any alternative provide remedy plaintiff a for a “who by harms caused an individual officer’s unconstitutional conduct.” Serv., at_, Correctional (emphasis 122 at 534 U.S. S.Ct. 521

27 original). view that, estimation, present Court’s my overstates the Even cited read Correctional Services and the cases

of Bivens. One cannot Bivens is and away the conclusion coming therein1 without limited Fourth rights under the to violations of constitutional will be Fifth under and in some cases Eighth Amendments (Due Clause). instances, And, those even in Amendment Process case likely carefully the circumstances of each Court scrutinize will narrowly as Bivens and, all, possible. do so as applies if it will and, presently constituted, very will be reticent is, at least as or Bivens expand guarantees constitutional to other classes other defendants. Indeed, Scalia, joined concurring by in his Justice Justice opinion,

Thomas, stated that he would not extend Bivens even the narrowest if words, mincing Not rationale of case arose in a new context. relegated Bivens to the status of “a heady relic Justice Scalia days powers to create [the] in which Court assumed common-law ‘implied’ by action-decreeing causes of them to be the mere existence Serv., Correctional statutory of a 534 prohibition.” constitutional (Scalia, J., concurring). at_, U.S. 122 at 523-24 S.Ct. Bivens Court, eventually Supreme this direction of the U.S.

¶92 Given meaningful Moreover, as may interpreted out of existence. well be Bivens noted, already torts limited to constitutional committed law; governmental involving under officers color searches seizures, punishment process cruel and unusual or some due remedy. violations; injured person where lacks an alternative limitations analytically provide make it citizens with These difficult and, cases, unique, protections the broader in some afforded context; case in some other Montana’s Constitution should a arise plaintiff; other class of defendant or involve injured involve some law; historically under actionable common 1 (Court (1983), 367, 103 2404, v. 462 76 L.Ed.2d 648 See Bush Lucas U.S. First Amendment S.Ct. violation); remedy Chappell v. Wallace declined to create Bivens (1983), (Court 296, 103 declined to allow enlisted 462 U.S. S.Ct. 76 L.Ed.2d officers); Bivens-type remedy against superior military personnel a their United States (no remedy (1987), Stanley v. available for v. 483 U.S. 107 S.Ct. L.Ed.2d Bivens service”); activity injuries military out of “incident to Schweiker that arise (Court 2460, (1988), 412, to Chilicky 101 370 declined 487 108 S.Ct. L.Ed.2d U.S. alleged employees against government to have violated infer action individual 471, claims); (1994), Meyer process handling Security 510 U.S. due Social FDIC v. of (Court permit against 996, 127 to extend Bivens suit 114 S.Ct. L.Ed.2d 308 declined Congress though agency had agency, the amenable to suit because federal waived even was immunity). sovereign

28 a right remedy involve where the common law has superseded been statute; suspended by or involve statutory for which the remedy inadequate. created is Therefore, I it is important believe that an equally address

compelling rationale for our recognize direct, decision to is that there private right of action for state constitutional violations. This alternate Constitution, rationale is from of language derived the Montana’s independent jurisprudence of federal and federal constitutional authority; independent law; ofthe common and independent of statute. that, It is to turn. now brief, his Dahood, In amicus curiae Esq., formerly Wade the (Committee) Rights

Chairman of Bill Committee the of the Convention, argues Constitutional persuasively that when the Rights Constitution’s framed, “Declaration of [the Committee] intended it to on footing provide stand its own and to individuals with protections fundamental far broader than those available system.” the through federal This is supported by statement reference 22, February the Committee’s 1972 transmittal letter the Convention delegates safeguards” which states that “new had been added to the Rights [Bill] Declaration of “to meet the changing contemporary circumstances of life” and that: presenting proposed Rights, this of Declaration guidelines committee notes that protections for liberty society exercise of government a free come not but from the people government. who create that It is spirit that which has this motivated committee to insure future, through rights, bill Montana’s this of a more responsible government Constitutionally commanded forget government never to solely is created welfare of people people fully enjoy so that the can more of heritage liberty American within the government. structure Convention, Rights Montana Constitutional Bill Committee added). Proposal, Vol. (emphasis 619 Taking has, heart, these for example, admonitions applied protections broader Montana’s in a Constitution number involving (Gryczan (1997), privacy contexts individual v. State 112) 433, State, personal autonomy (Armstrong Mont. 942 P.2d v. 261, 361, 364); involving 1999 MT 296 Mont. 989 P.2d search and (State (1995), 61; v. seizure v. Bullock 272 Mont. 901 P.2d State Siegal (1997), 176; Elison, 281 Mont. 934 P.2d State v. 2000 MT (Montana 288, 302 456); 228, 14 Mont. P.3d involving environment Department MT Quality, Envtl. Ctr. v. Envtl. Info.

29 right participation of 207, 988 1236); involving P.2d the Mont. (Common Statutory v. Nominate Cause Comm. to

the to know (1994), Comm’r Political Practices 324, 263 Mont. Candidates of Co. Falls Pub. Schs. (1992), Great Falls Tribune v. Great 604; 868 P.2d Press v. Board Pub. Educ. Associated 125, 502; 255 Mont. 841 P.2d of Jarussi v. Board Trustees (1991), 386, 376; P.2d 246 Mont. of 316). (1983), 131, 204 Mont. 664 P.2d Furthermore, acknowledging statement that the Committee’s Montana Constitutional important, part no is more of the Constitution Convention, II, recognized rights 619, have the repeatedly Vol. we “fundamental,” being Rights of as found in Montana’s Declaration Community Lewis 426, 430, 712 Butte Union v. (1986), 219 Mont. P.2d 1309, meaning rights significant components of 1311, that these are infringement trigger the level liberty, any highest of which of will the courts. Kloss thus, by scrutiny, and, highest protection the level of Co., & 123, 52, 54 v. Edward D. Jones MT 310 Mont. ¶ ¶ (Nelson, concurring). J., P.3d 52¶ logical corollary also the obvious to these rules: We have observed cannot rights illusory. be are It is as if

“[constitutional that enforced Kloss, (Nelson, rights legal rights.” J., those cease to as exist 58¶ concurring). being The importance able enforce one’s rights meaningful through constitutional the courts and receive injury If public private redress for or cannot be overstated. an rights by can government, individual’s constitutional violated the be officers, or, private by government’s protected, by where so knowledge wrongdoing, person, nothing secure in the will come It provides protection then it that the constitution no at all. follows elegant substance; it but a collection of without is a shield made words aspirations of little than and hopes. more amicus brief, Attorney argues As in order to avoid Dahood his give guarantees

this and in order result Montana’s teeth, ability protect people the framers intended that the retain unenumerated-through their enumerated and direct rights-both actions in the courts. This conclusion follows the Committee’s II, delegates and proposal of Article Section 34 to the Convention II, subsequent adoption provision. Article Section 34 states: this rights. The this constitution Unenumerated enumeration deny, impair, or rights not be construed certain shall others disparage people. retained proposing adoption Section,2 of this the Committee did two things. First, recognized rights enumerated in Montana’s Constitution were not exclusive-i.e. there unenumerated “rights beyond specifically those which listed” are retained Montana the people. Convention, Constitutional II., Second, Vol 645. important here, purposes our the Committee this considered Section "... a part to be crucial effort to revitalize the state government’s approach questions [and to civil liberties ... may Section]... judicial the source of activity innovative civil Convention, Montana Constitutional liberties field.” II., Vol proceedings Constitutional Convention no reveal debate on Article Section 34. It was adopted unanimously on the straightforward, yet eloquent Delegate Eck, recommendation of who [this Section] stated: “I think that completely self-explanatory. is There are rights people which not enumerated which the of Montana Convention, Montana Constitutional should not denied.” Verbatim Transcript, VI, 1832. Vol Snyder Professors Elison and that the observe Committee’s II,

belief that Article Section 34 could be the source of “innovative judicial activity’ in the area of civil liberties realized; has not been there are no referencing interpreting cases or Section. Elison, technically While inaccurate that no cases have referenced this Section,3 it II, is true that this Court has not 34 applied Article Section in substantive context. suggest Professors Elison and Fritz that:

[t]he section could as be used the basis the of introduction a of theory expansion natural an law or of the use of substantive process judicial finding due rights of unstated individual self-reliant, idiosyncratic hidden in the free-thinking, Montanan mythology. Presumptively, police this could power limit state enlarge existing rights rights. plenary or create ... new While legislative power rights might state and unenumerated appear contradictory, they be in conflict or a are not. In state constitution 2 provision formerly III, This included as Article Section 30 of 1889 the Constitution of Montana. 3 II, 34, Article Section was mentioned in States Tel. & v. Mountain Tel. Co. (1981), 282, Department Regulation 277, 181, 184; Pub. Serv. 194 Mont. 634 P.2d in of Press, 160, Revenue, 62, 233, Department Associated Inc. v. 2000 MT 300 ¶ ¶ Mont. of 62, 259, 262, (Nelson, J., (1988), concurring); Greely Harper 4 P.3d and in 62 v. 234 Mont. ¶ (citing 652 763 P.2d to Mr. Justice reference to the Section Sheeh/s 1314). 435; Community Union, concurring opinion in his Butte 219 Mont. 712 P.2d at against as a state rights unenumerated balance provision on idea, something of an potentially is a useful but police power Historically, governments context within the of state anomaly. power are system, plenary legislative the limitations on federal the restrictions found in a constitutional specific prohibitions and rights. Adding rights specific unenumerated of declaration people could to the prohibitions and restrictions transfer directly, checking means indirectly, and to the courts additional of power. plenary legislative added). ELISON, 87 (emphasis application II, Article Frankly, I can think of no better case

Section than in the at bar. “protections As for the exercise recognized, the Committee government but liberty society in a free come from government is people government who create created that] [and solely people.” Montana Constitutional welfare added). Convention, II, II, (emphasis Indeed, Article Vol. Section 1 of the Constitution Montana could not be more clear:

All All power people. is political vested in derived from the government found originates people, upon with only, solely their and is good will instituted for the of the whole. added). (Emphasis the language The intent framers and of the Constitution government originates

is incontrovertible: all is derived from and good people; government solely is created and for the instituted people. Thus, principles and welfare of the core with those mind, that, sense did perfect makes as in Article Section people unto beyond would retain themselves those which are they are Recognizing enumerated in their Constitution. wellspring government they impose upon of all which choose to themselves, also intent people positively the declared their not to textually restrict their to those set out their Constitution. liberties logic that Correspondingly, leap it takes no of to conclude one ¶106 rights people necessarily the unenumerated which the would retain power-the right, protect government if you is the will-to from ability infringement fully they their exercise those which liberties Rights. unto in their Declaration of specifically guaranteed themselves noted, rights already As that cannot be enforced constitutional ¶107 exist; they protection no illusory; they simply are cease to offer Therefore, government to ensure that the follows that whatsoever. not, monster, turn on its they created did like Frankenstein’s which right creator, would, did, the people they implicitly the as retain directly protect access the courts and enforce their other constitutional liberties. others, Among people guaranteed the unto themselves law, rights process

fundamental to due to be free from unreasonable seizures, searches and to individual privacy to access and redress in their likely, courts. The best-and more the that only-protection the people could unto reserve themselves to make that the sure government, cases, agents, its and in some their fellow citizens did not outright away violate inexorably chip or at these rights, to also guarantee their to sue right directly for these sorts of violations. Indeed, people if necessarily right, the had not retained there is nothing stop government then from disparaging the peoples’ fixing constitutional liberties and then that impairment by limiting prohibiting people seeking or from relief and redress in government longer the courts. The originate would no derive from and rather, the people; government originate with would with the government. longer power would no people have the to enforce and protect rather, their liberties; dependent constitutional would be upon government protection for that, and with whatever limitations, impairments government restrictions chose to on impose protection. short, retaining right In without violations, direct action for premise constitutional the core under the people adopted government which their Constitution-that derives originates itself, them-would, meaningless, because it could not be enforced. reasons, For people these would hold that the reserved have II,

unto themselves under Article Section 34 of the Constitution Montana, right government, agents, unenumerated to sue their its and, cases, in some citizens, directly their fellow in the of this courts rights state violations their under protected fundamental Montana’s Constitution. Moreover, right I would hold that this unenumerated of direct right

action for is a violations stand-alone II, guaranteed by 34, independent Article Section of the enumerated rights legal guaranteed by of access courts and to the to full redress II, independent Article Section 16 and to defend one’s life II, guaranteed Indeed, II, liberties Article Article Section 3. 34 unambiguously providing Section makes this distinction in that the rights enumeration of certain in the constitution “shall not be deny, impair disparage people.” construed to others retained my view, efficacy the real of this Article Section 34 cause is to fundamental of action ensure enumerated diminution, protected from limitation and restriction. This stand-alone right of direct action for constitutional protect violations would the important rights most basic and most enjoy. that Montanans These are rights the that:

shield government, ... each individual from the excesses of from tyranny the majority, and from the sorts of abuses perpetrated by persons, firms, corporations, associations, organizations, that, and institutions in pursuit of their own agenda, effectively interests and deprive people would the of those things essential to humanity their and to their lawful individual pursuits. Press,

Associated (Nelson, J., concurring). 55¶ Dahood’s amicus Returning Attorney brief, he states: placing II, Constitution, Article Sec. 34 in the 1972 the framers wanted to make clear that it judiciary was “crucial” that the had the power recognize rights unenumerated necessary when protect and secure those which are A enumerated. direct cause of action protect specified the is one of those rights.” “unenumerated

I agree could not more. I Opinion. concur our I also believe that Montana’s

Constitution contains provisions within it’s own untapped heretofore source authority-Article II, Section 34-guaranteeing people, to the by their reservation, own an unenumerated, yet fundamental, right of direct action for constitutional violations.

JUSTICE TRIEWEILER concurs in the foregoing special concurrence. LEAPHART,

JUSTICE specially concurring. A number of the briefs appeal, filed in this noting that the deputies they testified that judge” go were “commanded seize the property, expressed a concern that officers protected should be performance of their duties acting when in reliance on a court separately order. write to address that concern point out parties did specifically raise, and thus the Court does not address, question quasi-judicial immunity, separate which is distinct qualified immunity. so, In doing however, I do not express opinion an as to whether the doctrine of quasi-judicial immunity change would result this case. Constitution, Under our 1972 government is not immune

from suit legislature unless the enacts a statute a two-thirds vote of each house. Art. Sec. Mont. Const. Pursuant provision, to that legislature 2-9-112, MCA, enacted provides which as follows: (1) The Immunity judicial from suit for acts or omissions. governmental units are immune from suit for acts state and other judiciary. or omissions of the

(2) member, officer, judiciary is immune from agent A discharge of an official damages arising from his lawful suit duty judicial actions of the court. associated

(3) judiciary The includes those courts established of the State of accordance with Article VII of The Constitution Montana. immunity in question quasi-judicial addressed the of We

¶117 County Yellowstone, 280, 525, v. MT 296 Mont. 989 1999 Reisdorff of against cruelty lodged had been Complaints P.2d 850. of animal claiming county had damages a suit for that the Reisdorff. She filed permission. her Reisdorff contended property searched her without County control officers searched her the Yellowstone animal that when animals, immunity they her were not entitled to property and removed judiciary in an official they agents were not of the involved because pursuant duty. argued animal control officers acted immunity. of orders and were thus entitled justice peace’s the the officers, asking after for and concluded that the animal control We animals, “directly implementing receiving permission to seize the necessary bring steps ‘Take it deems justice the court order to: what compliance.’” Reisdorff, 30. ¶ the defendant into immunity quasi-judicial the doctrine of explained 118 We then ¶ judicial immunity: of arises from the doctrine immunity “Quasi-Judicial Immunity is more limited than the only acts committed within Judges extends to those afforded jurisdiction the and with the authorization scope actor’s of a defendant-actor but The Doctrine is not for the benefit law. quasi- it is that public whose interest rather for the benefit liberty exercise their functions should be at judicial officers legal consequences.” fear of unfettered (N.D. Texas v. American Bar Ass’n quoting Turner Reisdorff, ¶ 1975), F.Supp. 407 482. policy explained courts have The federal circuit immunity. “The fearless quasi-judicial behind

considerations if the court’s orders is essential unhesitating execution of court uncompromised.” ability are to remain authority and to function (9th 1987), F.2d Social & Health Services Cir. Dept. Coverdell v. pseudo- to act as required “must not be 758, 765. Police officers City v. Valdez scrutinizing judges.” orders of courts appellate (10th Rather, “the County 1989), F.2d Denver Cir. public interest judicial demands strict adherence to decrees.” Id. rely upon judge’s order, As to officers who and act there is

nothing in opinion abrogates which quasi-judicial doctrine of immunity. Reisdorff, As we concluded in consistently “[c]ourts have acting pursuant facially held that officials to a valid court order have a quasi-judicial immunity absolute for actions taken to (citation omitted). execute that Reisdorff, order.” 35¶ concurring. JUSTICE TRIEWEILER Frankly, I do not point Leaphart’s understand the of Justice

concurring opinion and write separately parties to caution the and the District Court from attaching significance too much to it. To do so only error, would lead to further expense delay finally before resolving this decade-long dispute on the merits. First, Leaphart points Justice out parties that the have not

raised quasi-judicial immunity. Then he claims he no opinion has application. about its One would assume that would be the end of the However, discussion. as if the cry facts this case out for some defense, proceeds he then to brief that issue for parties and tout policy considerations behind it. Having record, read including the entire testimony Defendants, I can parties that, assure the Leaphart’s Justice coaching aside, unsolicited there is legal no factual nor basis for the application quasi-judicial immunity to this case. To test those waters only would error, lead to further further appeal delay. and further Considering the representations Defendants’ argument at oral about the hardship protraction that of this them, case has caused that would not seem anyone’s to be in best interests. It necessary respond is also to to the dissent of Justice Rice.

Justice statutory Rice concludes that immunity is applicable because Deputy Sheriffs Caraway Ames and “authority acted under of law” when We, entered course, Dorwart’s house. previously have concluded that statute, there was no prior court order or decision of granted Court which authority. However, that Justice Rice concludes that the combination of our 1902 in Ramsey decision v. (1902), Burns 27 Mont. 69 P. and Justice of the Peace Marilyn Kober’s command to “enter the residence” “authority were the necessary satisfy of law” problem the statute. The with Justice analysis First, Rice’s is threefold. Caraway neither Ames nor ever Ramsey. Second, heard of Judge Kober did not tell either officer Third, enter or search Dorwart’s Ramsey home. has not “declared been invalid as in conflict with Constitution of Montana or the Constitution of the United States.” testimony of length from the opinion quotes Justice Rice’s However, quoted portion of Caraway. Paul

Deputy Sheriff statutory purposes of Caraway’s testimony is out of context and for immunity, portion critical is omittéd. When quasi-judicial the most house, Caraway gave to enter Dorwart’s authority asked he had what following answer: an to that. The first would be guess A. I it would be two answers Dorwart’s, Kober, second would be Mr. Judge order from and the in the with him that we had while downstairs the conversation fact that through the door due to the Office to enter back Sheriffs sliding, locked, make sure that we used the back it wasn’t and to sliding glass door. I it was a believe “order,” Judge counsel However, referring to Kober’s when referring were the writs of he was Dorwart clarified what following question and answer are had issued. The execution that been in the record: “order”, you by that the two Writs

Q. you say And do mean when given? you of Execution that all were Yes, A. sir.

Q. any separate not order? There was No, sir, my knowledge, there was two executions. A. there was-to do not Q. me, you, that the writs agree You would with wouldn’t and search it? you are to enter a residence state writ, I don’t words you’re looking specific A. If for those exactly in the writ itself. specified believe having Justice of the only he recalled conversation she during Rice which referred to Justice Peace Kober was one However, he did property. certain go him to to the house and take told him enter and advised testify that Justice of the Peace Kober specific question, contrary, asked the the house. On the when search following gave he answer: it, searching was that

Q. entering the house and subject Did the her? specifically discussed with go she said me, you than told where

A. With other what items- house and take the

Q. Okay. my conversation. the extent of A. -that was that he knew the Furthermore, Caraway admitted permission or a warrant house without entering person’s a prohibited an oral conversation and conceded that exigent circumstances gave He entry into home. sufficient to authorize judge would not be testimony: following Q. you agree But do orally with me that a court cannot authorize entry home, into a under circumstances? by itself,

A. An oral conversation I don’t believe enough. would be Deputy Neither did Sheriff Danny rely Ames on a verbal order from Justice of the Peace Kober to enter Dorwart’s simply house. He testified that he believed he was authorized pursuant to enter to the him writ because the writ property. However, authorized to seize he was express aware that there was no authorization in the writ to enter only the house. His other excuse entering the house was his However, conversation with Dorwart. here is how he characterized that conversation:

Q. youDo you remember what said to him? A. He was back in him jail, writs, and I held up the told I had them. I asked him if he had the money in order pay writs, forget I amount, it was over $1000. He said he I didn’t. told him that I going go to have to to his residence ánd seize property. During conversation, go he told me to ahead and use the back you door because didn’t key get need a the back door.

Q. He said you that after told you going him go were to have to there to seize the property?

A. Told him going we were to have to property. seize some Q. you you Did tell him were going go to have to in the house to seize some property?

A. I would imagine did, I because he told me that use the back door.

Q. Okay. you

And holding up you the writs when said that? Yes,

A. I showed him the writs. Q. you Did explain to him you had to property seize because writs, you these or do you remember if anything said about it? IA. said, believe that’s what I if money, as he didn’t have then I orders, had the court and that according orders, to the court if he pay them, couldn’t I had to property seize the to be sold in justify-or order to pay the writs off.

Q. And then again, you remember, tell me as best can what he said you once, back? know have answered this I- but A. Sure. I don’t know the entire conversation. I do know that it was, you know, door, you use the back key get don’t need a the book Something [sic] door. being was said about the side door locked, and then also he something careful, said about be he had time, a cat in the residence at the make sure'that we didn’t let the cat out. permission from primarily he inferred Ames conceded that

¶130 go to his house he told him he needed because when Dorwart so, he did not authorizing him to do had writs property his seize object doing to him so. specifically separate had no conversation Caraway admitted that he Dorwart for he nor Ames asked that neither

Dorwart and he admitted He testified: and search it. consent to enter the home permission or permission or consent Danny Russ for his Q. you or asked Neither it; right? and search is that go in the home Specifically, A. no. the Writ of implied to Russ that

Q. And it was at least Execution, going you all were the Writ of under Execution-that property, period? go into the house and seize him this writ and have to execute specifically Dan told we will A. property- seize

Q. Right. satisfy judgment.

A. -to Marilyn Peace with Justice of the As far as the conversation

Kober, Danny Ames testified: 11th, ‘91, April to Russ’ house on

Q. and Paul went out you Before Justice have, yourself have conversations with you did about this? Marilyn Peace Kober on, it I believe that went

A. There was a conversation I judge, and was Caraway, Caraway and the Sgt. Paul between vaguely I any of the conversation. I don’t remember there. conversation, you tell what but I couldn’t remember was about. conversation entry of and in the Therefore, directly involved people two they given no testified that home have either

search of Dorwart’s to enter and search Peace Kober by Justice specific direction This is at all. conversation with Kober do remember the home or immunizing someone who violated statutorily hardly a basis the United of Montana and the constitutions right under fundamental States. Ramsey to find shelter effort persistent Nor is Caraway gave following question, asked the

persuasive. When following answer: 11th, April on home

Q. into Russ Dorwart’s going Prior to you that Montana of‘91, anyone told was, had April whatever property and seize home and search entry into a law authorized Execution? under a Writ of Specifically

A. words, in those I yes can’t-it’s hard to answer Ino. know I had you been told under Montana law that have judge; follow the orders of a you’re obligated to follow the judge. orders of a guess

I you when you it, word it like worded the answer-I don’t mean, have an answer for I say that. specifically can’t had told me that. Ames testified as follows:

Q. And no one had ever said that the law in Montana you allows this, go to do into a home under a ofWrit Execution? guess

A. I I would-I really say would-I can’t anybody ever specific said those words. fact, Ames clearly

¶136 testified that his reliance only was on the writ and what he inferred was permission Dorwart’s to enter his house. He stated:

Q. your Other than position you that had consent your belief that the writs you themselves authorized go to in house, do you believe there was other go basis to in the home and search it?

A. With you those two that just got telling me, done no. All of this testimony brings us original back to the point made in the majority Opinion. There was no statute authorizing Caraway and Ames to enter Dorwart’s home. There nowas decisional law which allowed an invasion privacy of his pursuant to a writ of execution. The writ of execution itself did not entry authorize into and search of Dorwart’s home and neither did anything that by was said Justice of the Peace Therefore, Kober. there simply was no basis for the application statutory immunity. It is clear from the entire deputies’ context of the testimony they justified

that have entry their into and search of Dorwart’s home and seizure of his exempt property First, for two they reasons. contend the writs authorized them to However, do so. we have now held twice they Second, did not. gave contend that Dorwart them permission to enter and search his However, home. it is clear that he did not. He was never even asked for his permission. To suggest that somewhere in this series of uninformed

mistakes, there lies a defense such quasi-judicial as statutory immunity is a Defendants, disservice to the advocating those who are on their behalf, and law general enforcement in surely who will repeat the Defendants’ mistakes if encouraged to do so based on misinformation. in appropriately none of the included the official

¶140 While above Court, necessary clarify I conclude it Opinion of do respond suggestions Leaphart of Justices and Rice. record GRAY, dissenting. CHIEF JUSTICE join holding money of action I the Court in a cause privacy is available in Montana for of the violations guaranteed by and to free from unreasonable searches and seizures II, Sections 10 and 11 of the Constitution. For the Article Montana length below, reasons discussed some I dissent the Court’s holding process. of-and on-due I also dissent from the discussion holding that the defendants this case are not entitled to Court’s immunity 2-9-103(1), MCA, and, extent, statutory pursuant to that join join Leaphart’s thoughtful Rice’s I also Justice dissent. Justice immunity. quasi-judicial Finally, of the discussion doctrine because immunity, I statutory that the have would hold defendants would remaining address the issues resolved the Court. Regarding begins stating at 20 process, due ¶ “mistakenly remanding [Dorwart’s

we omitted state constitutional right process claim] to due to the District Court for further I, I. As the author of Dorwart Dorwart consideration” notwithstanding conclusory the appellants’ one statement in their opening [on brief that “the claims that remained at issue remand after Dorwart were Dorwart’s claims violations Montana I\ property ... to not have his taken without due Constitution’s process law,” support proposition. the record does not relating process due claims 143 The record this case Dorwart’s ¶ Therein, Complaint. begins plaintiffs First Amended by generally money damages a claim for for began alleging violations declaratory rights, and a claim for of constitutional common and judgment injunctive regarding and relief the statutes at issue whether process due the federal and state constitutions. violated under both 1) alia, the inter alleged, process then due claims: plaintiffs The three right alleged of Action a violation the defendants of the Third Cause Constitution, resulting injury and process due under the Montana 2) of Action request monetary damages fees; for and the Ninth Cause process of under the United alleged a violation the defendants due . Constitution, resulting injury, request compensatory and a for States 3) sought of damages; and the Tenth Cause Action punitive and grounds, alleging on declaratory injunctive process and relief due ultimately injury in thereof. The District irreparable support all of summary plaintiffs’ for the on judgment entered defendants Action, alleged the Third of the claims-expressly including Cause by the violation defendants Montana constitutional due process-except plaintiffs’ declaratory judgment the claim for and injunction. however, In regard, this latter the District Court created some by granting plaintiffs partial summary judgment

confusion the on the action,” expressing ruling “ninth cause of its as a determination that statutes issue process” violate “state and federal due and enjoining County levying against plaintiff of writs execution In appropriate Russell Edward Dorwart without other notification. words, having first determined that the defendants were entitled summary judgment on all claims except declaratory judgment for injunction, it then plaintiffs’ misstated the Ninth Cause Action alleging process as one both federal violations, and state due determined statutes, those violations exist via unconstitutional granted-as would-summary plaintiffs it stated it judgment to the on request injunctive their relief, without it as characterizing plaintiffs’ Tenth Cause of Action. The plaintiffs appeal filed a notice from certain portions Order, District Court’s including portions Memorandum and those

granting the denying defendants’-and their-motion summary (state judgment on their Third Cause of Action constitutional due claim) (federal process and Ninth Cause of Action constitutional due claim). process The cross-appealed defendants the District Court’s grant partial summary judgment plaintiffs to the on their declaratory injunctive relief claims. plaintiffs’ appellate if follow-through, any, regarding

either the Third or Ninth hardly Cause of Action was a model of clarity. process the due section of their brief on appeal-which length-they contended in 3Vz pages that due exceeded 25 pages process was challenged violated even if the statutes are constitutional (at best, Action). argument a murky regard with to the Third Cause of portion brief, In that plaintiffs correctly of their noted that separated District Court their due process claims a manner not entirely asserted, consistent with the causes of action contended the separate due process claim that the defendants violated the statutes was “an claim in the challenged alternative event the statutes were constitutional,” found to be argued that the trial court’s conclusion property their process was not taken violation due inconsistent its conclusion statutes were The plaintiffs specifically unconstitutional. then stated as follows: that, unconstitutional, appear It would if the statutes are then and the property process, Dorwart’s was taken in violation of due violating based on those same process claim a due violation the Court statutes would be moot. In event this does those find unconstitutional, process his statutes then Dorwart asserts due claim that the statutes were violated. added.) process

(Emphasis plaintiffs’ The remainder of the due arguments during appeal the consisted of a discussion and first Challenged Because the analysis captioned Due Process Was Violated Unconstitutional, running pages length, than in more Statutes argued in that the support which of the District Court’s conclusion Indeed, statutes issue were unconstitutional. ended process due enumerating the various reasons the statutes violate on concluding analysis district court’s and conclusion “[t]he words, regarding plaintiffs’ issue is correct.” In other the brief due largely against anticipated cross- process pre-emptive was strike the determining that argument the trial court had erred in the appeal statutes were unconstitutional. due in Dorwart I as follows: “Did process We stated the issue determining post-judgment

the in that Montana’s District err provide do not execution statutes are unconstitutional because II, required by the due of law Article Section 17 procedural process the and the Fourteenth Amendment the Montana Constitution I, discussion, In we United States Constitution?” Dorwart our ¶ addressing plaintiffs’ and the lead in the followed both the trial court’s statutes, ultimately concluding that the constitutionality “they provide do not statutes are unconstitutional because required by 17 of the process of Article Section procedural due Amendment to the United and the Fourteenth Montana Constitution agreeing I, Implicitly See Dorwart 63-103. ¶¶ States Constitution.” question regard process due with plaintiffs’ argument that the if be moot we alleged violation of the statutes would to the officers’ unconstitutional, did not properly we the statutes to be determined have more opinion our could been retrospect, address that issue. under the event, unconstitutional clear. In we held statutes constitutions. the federal state process provisions due both conclude that-the did not address whether-or properly Because we statutes, not remand for properly also did officers had violated we The against the officers. of a claim farther consideration wrong concluding otherwise. simply Court is “mistakenly omitted Moreover, advancing its that we notion against claim defendants remanding” process the due on availability fails take into account both themselves, the Court rehearing and the fact petition for M.R.App.P., a Rule plaintiffs petition file such opportunity availed themselves decision Dorwart our issued. first of that after section erroneously did petition argued they that we had stated that monetary process of request part as their federal due monetary damages and tied the for federal request violation for the process due violation to the issue the of defendants’ entitlement to qualified immunity. It ended with the statement “Dorwart’s due process rights clearly Caraway and established Ames should qualified immunity.” Nothing portion not be entitled to in that plaintiffs’ petition rehearing requested any change for in extent the of our remand the Court process District on the due issue. did, however, The second section of the for petition rehearing

request process is, that the state law due constitutional claim-that the plaintiffs’ Cause Third of Action-be remanded to the District Court. objections petition by to the and responses amici defendants, After the curiae, 12, 1998, we issued our on withdrawing order November the original 4,1998, August 103 from our Opinion, replacing ¶ it with the 103 Dorwart part which now is in opinion ¶ the and which is plaintiffs’ petition rehearing discussed above. We denied the for in all respects, other including requested the remand on the Third Cause of Court, including Action. Three of the members of our myself, current signed others, the including order. Two the author the Court’s opinion in appeal, this second noted our deny on order that would the petition rehearing outright. My point here, of course, is that the plaintiffs requested a process remand their state constitutional due I, in in Dorwart petition rehearing claim their and all members of the request. light record, Court denied that beyond this it is imagining the how Court can mistakenly now state that we omitted such remand in the appeal. earlier aside, and logic clearly record the law of the case doctrine

prohibits the process Court’s remand of the state constitutional due point. doctrine, claim at this Under that an earlier decision resolving particular Court parties issue the same in between the Calcaterra v. Montana binding relitigated. same case is and cannot be Resources, 193, 10, 249, 10, MT 306 Mont. 32 P.3d ¶ ¶ ¶ (citation omitted). process We addressed the issues due between these I, Dorwart parties in expressly rejected and even the remand now Quite appropriate by clearly, purpose determined to be the Court. the judicial economy of the law of the case promote doctrine-“to prevent never-ending litigation single long the of a its case”-and (see 10) Calcaterra, jurisprudential longer basis Montana are no ¶ of interest to the Court. I the apply would doctrine be done began years than 10 process

the issues in this case which more due ago. failure gamely attempts Nelson to defend the Court’s Justice here, falls far of the case but the defense apply doctrine Zimmerman exception of an quotes length support

short. He correcting where the is a “manifest application doctrine court apply fails to opinion. in its Justice Nelson then error” former Zimmerman rationale to present case. above, length As there was no manifest error discussed at plaintiffs’ does

our Third Cause of Action. Nor failure remand on correcting Indeed, as a manifest error. the Court address issue years mistakenly we merely “decides”-some four later-that to remand on the Article Section 17 claim. failed the case Similarly, point the law of Justice Nelson’s generally correct, but actually is doctrine limited issues decided above, the asserted help plaintiffs little As discussed also of here. process due cause during appeal the first state constitutional if we the District Court’s conclusion upheld of action would be moot We that upheld themselves were unconstitutional. that the statutes conclusion; “ignored” wholly is say inappropriate that the issue to we and, in and decisional record in case light procedural of the change on moreover, entirely argument it to their plaintiffs allows the course, addition, we denied point during appeal. the this second of precisely remand rehearing sought the plaintiffs’ petition the for which I. omitted Dorwart “mistakenly” in was the Court has now decided Thus, Third of Action has regarding issue of a the Cause the remand now. “actually properly decided” and cannot be revisited been concludes that “a direct Finally, specifically the Court also ¶154 money damages is for violation cause of action for available by II, 17 of the Montana guaranteed Article Section rights Plaintiffs’ error, in for reasons. again is several ConstitutionThe Court this case above, issues in First, process discussed the due as I the that were resolved Dorwart on the District Court’s conclusion unconstitutional, of that this Court’s affirmance at statutes issue plaintiffs’ in the request denial of the for remand conclusion and our Second, direct rehearing. conclusion that “a for the Court’s petition the is for violation of money damages available cause of action II, 17 of the Montana guaranteed Article Section rights Plaintiffs’ analysis “self-executing” it by the supported is not Constitution” to free from unreasonable privacy applies to the of In other under the Montana Constitution. searches and seizures that only very indirectly-applied words, improperly-and has the Court analysis process to the due claim. Bivens with the Shields analysis I the agree Let me be clear: of applies to the issue of the existence of a constitutional cause

Court rights. view, of is my certain constitutional It action violations however, analysis of support that that does not a constitutional cause process present action for a due violation in the case. only regard The case to the Court cites with to the which

ability money damages for violations of constitutional recover guarantee process-albeit due of under Fifth Amendment-is Davis, in Davis v. Passman. Supreme United Court’s States decision however, process “pure” deprived was not a due case under the “nor be life, liberty, process of property, language without due law” Constitution, nearly U. S. which identical Article Rather, Davis involved Section 17 the Montana Constitution. a gender-based brought discrimination claim Fifth pursuant right process by Congressional against Amendment’s to due a staffer legislator Supreme for whom she had worked. The Court relied on equal its cases interpreting including Due Process Clause as an protection component, and allowed the to proceed. cause action Davis, Davis is not at all Thus, 442 U.S. at S.Ct. analogous case, the present does support not the Court’s conclusion here. Moreover, the Court’s reliance on Shields is more notable for

what it not agree does disclose about that case than for what does. I entirely with the Court’s statement Shields “held that a general provision guaranteeing a right enjoy self-executing life was but the specific guarantee speech self-executing.” of a to free added.) (Emphasis The clearly question statement itself invites the distinguishes self-executing what a from a non-self-executing provision, ignores but Shields question Court addresses. Shields begins by court quoting as follows from the United Burke, decision Davis v.

States Supreme on case relied jurisdictions determining most in a whether state constitutional provision self-executing: is

A provision may self-executing constitutional said be if it be to supplies right given may a sufficient of rule means which the be it enjoyed protected, self-executing and ... and is not it when merely principles, laying indicates without down rules means may given those principles which the force of law .... short, complete itself, ... In if in it executes itself. Burke,

Shields, Davis v. 403, (quoting 658 A.2d at 928 179 U.S. at 21 46 (citations omitted)).

S.Ct. at 212 The Shields court went on state that

[determining provision supplies a a sufficient rule whether criteria, no application entails of certain relevant one of which is First, self-executing provision a should do more dispositive. than may detail, only general right in express principles; describe including enjoyment protection. the means for its those, proceeded Shields, apply A.2d at 928. The court then 658 other, principles determining the Vermont constitutional not, guaranteeing right enjoy life is as the Court provision case, self-executing, properly present observes in the but Shields, right self-executing. freedom is 658 speech constitutional A.2d 928-30. performs analysis regard 160 no here The Court Shields

¶ action, I such process constitutional due cause of and submit that an analysis produce opposite a result from that the Court reaches. would II, clearly words, 17 is process In other the Article Section due cause self-executing pro-poses supporting for a constitutional money damages. action for Moreover, standing proposition that due our cases concept to the

process is a which should be tailored flexible See, e.g., Hagen, are State 2002 legion. of each case v. circumstances B.P., 117, 885, 13; 190, 13, 13, 53 P.3d In re 2001 MT 311 Mont. ¶ ¶ ¶ 430, 31, 291, 31; 219, 31, MT 306 35 P.3d McDermott v. ¶ Mont. ¶ ¶ 10, 200, 89, 10, 166, 10; 24 McDonald, ¶ 2001 MT 305 Mont. P.3d ¶ ¶ 15, 16, 15, Shelton-Thompson, 131, MT 300 Mont. ¶ Pickens v. 2000 ¶ 217, 8, 15; Mahoney, MT 295 Mont. 603, P.3d v. 1999 ¶ Jellison ¶ Racing, 1998 MT 540, 8, 986 1089, 8; P.2d Smith v. Board Horse ¶ ¶ 11, 752, light P.2d 11. In of both 11, 288 Mont. ¶ ¶ ¶ private cases, it is inconceivable to me that Shields and our which, among other process due cause of action can exist constitutional things, permit jurya to determine improperly would due. question process of what and ever-flexible life into the I the Court’s desire to breathe understand properly that desire Constitution. Where provisions of Montana law, For all the reasons stated support it. pursued can be under analysis of the due herein, any portion of the Court’s support I cannot I dissent. process issue. dissenting part. RICE, concurring part

JUSTICE Article Issue this Court’s decision on I concur with self-executing, Montana Constitution Sections 10 and ofthe for violation thereof. right of action provide the basis for a claim, Gray’s Regarding join the Article Section 17 I Chief Justice respectfully I from Court’s on dissent. dissent determination Issue statutory immunity the not to pursuant that Defendants are entitled 2-9-103(1), MCA. on and plain language plain meaning to Based the statute, I of the would affirm the District Court’s conclusion that the and, therefore, immunity Defendants are entitled thereunder would to not address 3 or Issue Issue 2-9-103(1), MCA, Section declares: officer, agent, employee governmental entity

If an a or acts in faith, good corruption, without malice or under authority and the that subsequently law and law is declared invalid as in conflict with the or constitution Montana the constitution of the United States, any neither he nor or employee other officer of the governmental he entity represents nor governmental entity the he represents civilly he, liable in action in which such other officer, governmental entity or such would not have liable been had the law been valid. First, immunity, to good to entitled the officers must in act and corruption. considering statute,

faith without malice or In the the Court does not address the officers’ intent or motivation. The record reveals Caraway, upon that Officers Ames and receiving the writs of execution, prior serving them, and to Judge conferred with Kober in clarify duties, order their and received instructions her. Thereafter, they spoke himself, also with Dorwart and received regarding entry instructions from him into his home. The District I, in Dorwart found, as we did acting that the officers “were on reasonable, a good understanding law,” and, faith applying the statutory “corruptly” “malice,” definitions of found that neither ‘wrongful design officer “had acquire a or some pecuniary cause or other advantage’ actions, themselves nor did ‘wish their vex, annoy, injure’ or Dorwart their actions.” conclude the District correct, findings Court’s the requirement that statute’s that good faith, in officers act malice or corruption, without satisfied. Second, requires statute officers must act “under and amicus Montana Trial

authority Lawyers law.” Dorwart argue statute, Association there or was no court order court granted authority home, decision which Defendants enter Dorwart’s therefore, acting authority Defendants not under law. v. Ramsey Burns challenges Dorwart on District Court’s reliance (1902), concluding then-existing 27 Mont. 69 P. in supported Caraway. the actions of Ames and here, only question Ramsey At the was the Montana times directing a interpreting scope authority derived from writ

case Ramsey, levy executing on a of attachment property. writ her Ramsey’s upon personal officer entered and levied business days. Ramsey property, remaining possession ofthe business five him, and, against subsequently jury sued officer after a verdict jury that an officer with a appealed officer instruction which stated authority any right “has to take and hold writ of attachment any building personal to seized possession property in which the be is, in ‘if he takes and that he and his bondsmen liable ” possession premises.’ Ramsey, such 27 Mont. at 69 P. room at 712. error, stating: Court determined the instruction to be This right place against

An has enter a the will officer to business refused, having asked and occupant, permission of the been and belonging to the and property occupant to seize the therein subject has a to enter and have levy to .... The officer time, may he for a have possession place of the ... reasonable may time he goods storage there the such reasonable as procure necessary transportation require pack to them and to for their removal. 156-57, had been

Ramsey, Ramsey 27 Mont. at 69 P. at 712. never deputies at time Ames and and was the state of law the overruled Caraway in 1991 to execute on the writs entered Dorwart’s residence of execution. Although Ramsey squarely did not address the constitutional scope relating or the to a writ of execution

search seizure issue levying personal property a authority of writ the context “[wjhile I, residence, in Dorwart person’s Court stated entry such an would Ramsey or resolve whether did address an certainly to authorize scrutiny, appeared survive constitutional on levy person’s acting pursuant directing official a writ in which premises of the possession to enter and take property to effectuate the was located in order property subject execution I, 109. We necessity of Dorwart without the a warrant.” ¶ execution deputies home .to that “the entered Dorwart’s further concluded according procedures appeared which of execution execute writs I, then-existing ....” Dorwart appropriate ¶ under Montana law lead, determined that District Court Followingthis Court’s authority to base a “of on which Ramsey potential remained a source Dorwart’s Caraway did not violate conclusion that Ames they when entered his home.” The District Court determined that the “then-existing supported Caraway the actions of Ames and in the manner that executed the writs of execution.... As required 2-9-103(1), MCA, the deputies acting authority under of law.” majority faults the District Court’s determination that Caraway upon Ames and acted authority lawful testimony because the Caraway of Ames and does not specifically demonstrate that either Ramsey, knew of that the merely upon but officers “relied the writ of execution admonishment and Dorwart’s to use the back door and not let the cat out.” that, It must first be noted in addition to the writs and the Dorwart,

conversation with the deputies also relied upon an order from Judge Kober to property satisfy seize the the writs:

Q: [by [W]hat, Thomas]: Mr. your time, mind at your authority entering the home and searching it?

[byA: Caraway]: Mr. I guess it would be two answers to that. The first would be an order Judge Kober, and the second would Dorwart’s, be Mr. him conversation with that we had while downstairs in the Sheriffs Office to through enter the back door due to the fact that it wasn’t locked ....

Q: Any other basis besides those two? my A: obligation Just a deputy as to follow the orders judge and my department.

Q: any Were there you conversations Danny between or Ames or Sheriff Brophy, matter, for that Marilyn with going Kober before out to Russ Dorwart’s home to serve the writs? Yes,

A: there was. Q: you Can long remember how actually going before out to his house that conversation was?

No,A: I don’t. I know that did papers serve, we have the to and there question was a about what supposed were we to do. The - papers they were unique were to me .... And it appeared to me that Dan had questions some up, about it too. We came and we spoke Marilyn to [Kober] here in her office. papers And the stated property to seize .... I I her, you know, know asked what does this mean, go what does this property and seize satisfy to this monetary amount, me, what does this mean. you go She said to to house; you his guns, stereos, take you whatever is there think will satisfy monetary amount.

Q: say Would it be correct to time that at least at the these writs served, were and entry the and search was made of Russ home, Dorwart’s the primary concern of the Department Sheriffs writs, try enough property satisfy to seize was to to the and not any rights might whether Russ Dorwart had that be violated doing this? assumption. I in you

A: would think that would be incorrect that why judge, I think that’s we had the conversation with the was to doing things make that we as the allowed us to do sure were otherwise, I up .... think we would have went and served the any papers question or conversation. I think we without were legally things. that we doing concerned were Q: gathered you from this case that believed that the Writs of you to enter into Dorwart’s residence and Execution authorized satisfy writs; is property property search for and seize the that correct? [by Right. Ames]:

A: Mr. wanting the deputies, The to be certain that writs themselves authority premises seize granted for them to enter Dorwart’s his personally requested Judge Kober property, verification go by Judge (“you house; you [his his take commanded Kober property the on the property]”) to enter residence seize Dorwart’s the authority. of writ’s basis But the faults significantly, improperly more the inability immunity to cite Montana statute

deputies’ case law. Caraway that or be able cite to a 1902 require does Ames authority the gave premises Montana case that them to enter order requires immunity. only The statute the officers “act... to obtain Thus, if authority authority acted under the under law.” law, portion immunity statute, by meaning, its plain it agreed with this satisfied. The District Court was correct when Ramsey appeared I Court’s conclusions Dorwart to authorize certainly not clear ... that deputies’ actions at a time when “it was search and seizure their actions violated Dorwart’s “appeared appropriate to be privacy” and that officers’ actions Ramsey the current then-existing under Montana law.” Because the writ of deputies of the law in 1991 when executed state execution, authority law,” satisfying “under thus deputies acted 2-9-103(1), second under MCA. element § 2-9-103(1), MCA, requirement immunity under The third be declared invalid as conflict subsequently is that the law must the United Constitution of the Constitution Montana this the Court majority again The faults District because States. Dorwart I did not declare that postjudgment the execution statutes entry into home. authorizing Dorwart’s unconstitutional were However, necessary to conclude that the finding such is not order immunity 2-9-103(1), deputies are entitled to under MCA. § merely provided requires authority statute that the that had subsequently the actions invalid as in conflict deputies’ be declared the with either the Montana Constitution or United States Constitution. Ramsey the Court Dorwart I did either or While not declare postjudgment unconstitutional, execution statutes the adoption procedural requirement

unmistakable result of the of the Ramsey I in Dorwart an be a longer execution warrant is that can no valid, authority acting to a potential pursuant source of for an official person’s property possession writ of execution to enter a take or premises property subject located, in which to execution is and to Thus, necessity effectuate execution without of a warrant. Ramsey although explicitly Court did or declare invalid Ramsey unconstitutional, longer it valid, is no as was in when provided authority levy upon for officers to enter and a judgment personal property. debtor’s plain 2-9-103(1), MCA, Under the language the deputies § authority

must act under which subsequently of law must “declared invalid as in conflict constitution of Montana constitution of the adopting United States.” In the execution warrant I requirement as a procedural in Dorwart safeguard, this Court Ramsey implicitly declared longer was no valid source of authority Caraway’s for Ames’ and actions. foregoing, Based on the I statutory would conclude that the

requirements clearly have Caraway been met and that Ames and statutory immunity pursuant 2-9-103(1), entitled to MCA, affirm would holding. District Court’s sum, that, conclude after its substantial able review herein, correctly issues raised the District Court ruled that a

right of here, action exists for the constitutional violations issue but that the officers under these circumstances shielded by statutory immunity. claim

Case Details

Case Name: Dorwart v. Caraway

Court Name: Montana Supreme Court

Date Published: Oct 30, 2002

Citation: 58 P.3d 128

Docket Number: 01-199

Court Abbreviation: Mont.