THE MONTANA CONSTITUTION, CONSTITIONAL TORTS AND HUMAN RIGHTS LAW

1. THE MONTANA CONSTITUTION, CONSTITIONAL TORTS AND HUMAN RIGHTS LAW Randy J. Cox

2. Preamble: We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.

3. Prominent provisions of the Montana Constitution: • Exceptionally strong right of privacy • Right to a “clean and healthful environment” • Recognition that the dignity of the human being is inviolable • Guarantee of a free, quality public education • Specific educational goal of preserving the cultural integrity of Native Americans

4. The Montana Constitution, in virtually all instances, provides greater or at least equal protection to individuals as does the federal constitution, making the Montana Constitution fertile ground for litigation. Litigation in just the last decade has involved: • Groundwater and soil pollution (clean and healthful environment) • Gay rights (human dignity and right of privacy) • School funding (free, quality public education) • Right to die (human dignity/privacy)

5. Important constitutional provisions to note in Montana: • Political power is vested in and derived from the people. Art. II, §1 • People reserve the power of self-government. Art. II, §2 • Right of initiative and referendum reserved. Art. V, §1 • Educational goals and duties, Art. X, §1 • Explicit recognition of cultural heritage of Native Americans • Legislature shall provide a basic system of free quality public elementary and secondary schools. • Duty to maintain and improve a clean and healthful environment, Art. IX, §1

6. Inalienable rights, Art. II, §3 • Clean and healthful environment • Right to pursue life’s basic necessities • Acquiring, possessing and protecting property • Seeking safety, health and happiness in all lawful ways

7. Individual dignity, Art. II, §4 • Dignity of the human being is inviolable • No person shall be denied equal protection of the laws • Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in exercise of civil or political rights on account of • Race • Color • Sex • Culture • Social origin or condition • Political or religious ideas

8. Freedom of speech, expression and press, Art. II, §7 “. . .every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.”

9. Right to Know, Art. II, §9 • Examine documents • Observe deliberations • Overridden only if demand of individual privacy clearly exceeds merit of public disclosure

10. Right to Privacy, Art. II, §10 • “. . .essential to the well-being of a free society” • Infringement only upon showing of “compelling state interest.”

11. Trial by jury shall remain inviolate. Art. II, §6 Speedy remedy for every injury of person, property or character. Art. II, §16

12. HUMAN RIGHTSACT The Article II, §6 declaration of individual dignity prohibits discrimination and denial of equal protection.

13. Title 49 gives life to the declaration of the ideal: • Title 49 clearly depicts the intent of the legislature … there shall be no discrimination in certain areas of the lives of Montana citizens … except under the most limited of circumstances. Laudert v. Richland County Sheriff’s Dept., 2000 MT 218 ¶56. • Title 49 constitutes “the exclusive remedy for acts constituting an alleged violation of [state statutes, including Human Rights Act], including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution….” Section 49-2-512(1), MCA.

14. Prosecuting or Defending Human Rights Claims • Starting point are statutes of Title 49 • Administrative Rules • Court has relied upon and upheld binding effect and guidance provided by the regulations contained in ARM. (see attachment to Tim Kelly’s outline) • Regulations should guide the building of your case – its elements and proof • Montana courts (including Human Rights Division) looks to federal discrimination law (cases, statutes, EEOC regulations) for guidance. State policy will override guidance from federal sources. • State law provides essential principles and a slightly further reach in most instances than does federal law.

15. Interplay Between Montana Human Rights Law and Federal Civil Rights Law • Human Rights protections in Montana provided, for the most part, in Chapters 2 (Human Rights Act) and Chapter 3 (Governmental Code of Fair Practices) of Title 49. • Federal statues provide civil rights protections in employment, public accommodations, housing, financial and credit and insurance transactions, schools, education, governmental services, licensing, regulation, public contracting and retaliation contained in scores of different laws and at least several hundred pages of legislation – not to mention thousands of pages of regulations and judicial decisions. • Title 49 has two explicit provisions prohibiting unlawful discrimination in the workplace, Section 49-2-303 and Section 49-3-201.

16. At the federal level, employment discrimination by employers is addressed by: • Civil Rights Act • Titles VI and VII of the Civil Rights Act, • Equal Pay Act • Age Discrimination in Employment Act • Title I of the Americans with Disabilities Act • Title IX of the Education Act of 1972 • Rehabilitation Act of 1973 • Family and Medical Leave Act • Civil Rights Act of 1991 • Others

17. CONSTITUTIONALTORTS

18. The Montana Constitution is exceptionally progressive with broad and expansive language. The question of whether the Constitution itself, rather than legislative action putting meat on the bones of the Constitution, gives rise to a cause of action, either against the government or against private companies or individuals. That is the issue of Constitutional torts, a subject much debated over the past decade or so.

19. Limitations on Use of Constitution As Basis for Tort/Damages Claims The Court has yet to hold any other provisions of the Constitution to be self-executing and has consistently backed away from elevating various torts to Constitutional stature. Limitations and cautions always applicable in claims based on the Constitution include:

20. The Montana Human Rights Act constitutes the exclusive remedy for claims of discrimination, whether alleged to be violation of statutes or violation of the discrimination provisions of Article II, section 4 of the Montana Constitution. Section 49-2-512, MCA; fundamental rights may be lost by the failure to follow Title 49 procedures. Arthur v. Pierre Ltd., 2004 MT 303 • If it is possible to resolve a case without considering and deciding constitutional issues, then the constitutional issue will not be addressed. Sunburst School District No. 2 v. Texaco, Inc., 165 P.3d 1079 ¶62 (Mont. 2007). • Constitutional torts are limited to situations where no other adequate remedy exists. Id. ¶¶ 62-64. • No case law from the Montana Supreme Court exists supporting a constitutional claim against a private individual or company rather than against the government. • Private tort claims based on the Constitution open a “floodgate.”