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THE MONTANA CONSTITUTION, CONSTITIONAL TORTS AND HUMAN RIGHTS LAW. Randy J. Cox.
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Randy J. Cox
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.
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:
“. . .every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.”
Speedy remedy for every injury of person, property or character. Art. II, §16
The Article II, §6 declaration of individual dignity prohibits discrimination and denial of equal protection.
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.
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:
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