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                                                               No. 95-446

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 191




                                           RUSSELL EDWARD DORWART and

                                                       HARRY DORWART,

                                                     Plaintiffs, Appellants and

                                                         Cross-Respondents,

                                                                      v.

                         PAUL CARAWAY, individually and as a deputy in the Stillwater

                           County Sheriff's Office; DANNY AMES, individually and as a

                         deputy in the Stillwater County Sheriff's Office' CLIFF BROPHY,

                           individually and as Sheriff of Stillwater County, Montana; and

                                     COUNTY OF STILLWATER, State of Montana,

                                                   Defendants, Respondent and

                                                           Cross-Appellants.




                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                               In and for the County of Stillwater,


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                                   The Honorable Maurice R. Colberg, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellants:

                        Gary R. Thomas (argued); Thomas Law Office, Red Lodge, Montana

                                                            For Respondents:

                     Steven R. Milch (argued); Crowley, Haughey, Hanson, Toole & Dietrich,

                                                           Billings, Montana

                                                               For Amicus:

                        Hon. Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor,

                                                            Helena, Montana




                                                        Argued: June 12, 1997

                                                       Submitted: July 15, 1997

                                                       Decided: August 4, 1998

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Plaintiffs Russell Edward Dorwart (Dorwart) and Harry Dorwart appeal from the
judgment entered by the Thirteenth Judicial District Court, Stillwater County, on its
order granting partial summary judgment to defendants Paul Caraway, Danny
Ames, Cliff Brophy and Stillwater County. The defendants cross-appeal from the

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judgment entered by the District Court on its order granting partial summary
judgment to Dorwart. We affirm in part, reverse in part and remand for further
proceedings.

¶2 We address the following dispositive issues on appeal and cross-appeal:

¶3 1. Did the District Court err in determining that the actions of the Sheriff's
deputies in entering Dorwart's residence and levying upon personal property therein
did not violate Dorwart's constitutional rights to be free from unreasonable searches
and seizures under the Fourth Amendment to the United States Constitution and
Article II, Section 11 of the Montana Constitution or his right to privacy under
Article II, Section 10 of the Montana Constitution?

¶4 2. Did the District Court err in determining that Montana's post-judgment
execution statutes are unconstitutional because they do not provide the procedural
due process of law required by Article II, Section 17 of the Montana Constitution
and the Fourteenth Amendment to the United States Constitution?

¶5 3. Are the Sheriff's deputies entitled to qualified immunity from individual
liability for Dorwart's 42 U.S.C. § 1983 claims?

¶6 4. Did the District Court err in granting summary judgment in favor of Stillwater
County and Cliff Brophy, in his capacity as Sheriff, on Dorwart's 42 U.S.C. § 1983
search and seizure claim?

¶7 5. Did the District Court err in granting summary judgment in favor of the
defendants on Dorwart's conversion and trespass claims and Harry Dorwart's
trespass claim?

¶8 6. Did the District Court err in concluding that Dorwart is not entitled to
attorney's fees?

                                                          BACKGROUND

¶9 Dorwart was the named defendant in two actions in the Small Claims Division of
the Justice Court in Stillwater County, Montana. Default judgments were entered
against him in those actions on February 19 and March 11, 1991. The Justice Court
subsequently issued writs of execution to enforce the judgments on March 12 and
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April 9, 1991, respectively.

¶10 On the evening of April 11, 1991, Dorwart was driving his pickup truck along
Highway 78 between Columbus and Absarokee when he was stopped by Deputy
Sheriff Danny Ames (Ames) and served with the two writs of execution. Ames also
arrested Dorwart for driving under the influence of alcohol, seized the pickup truck
and transported Dorwart to the Stillwater County Jail (Jail). After Dorwart was
incarcerated in the Jail, either Ames or Deputy Sheriff Paul Caraway (Caraway)
asked Dorwart whether the door to his residence was locked and Dorwart responded
that one door was not locked. He also told the deputies that his wallet and driver's
license were on the dashboard of his mother's car, which was parked in his driveway.

¶11 Ames and Caraway proceeded to Dorwart's residence, entered the house and the
garage, and seized various items of personal property pursuant to the writs of
execution. They also took Dorwart's wallet from the dashboard of the car. Neither
Ames nor Caraway had requested permission from Dorwart to enter his residence.

¶12 Dorwart's pickup truck, its contents and his wallet were returned to him several
days later. On April 18, 1991, Dorwart filed in Justice Court a Motion for Release of
Property and to Quash the Writs of Execution, supported by an Affidavit of
Exemption and other affidavits, asserting that the personal property which Ames
and Caraway had seized from his house and garage either was exempt from
execution or did not belong to him. The record does not indicate whether the Justice
Court held a hearing on Dorwart's motion but, on September 30, 1991, it ordered
that all of the property seized from Dorwart's house and garage be returned to its
rightful owners. Dorwart subsequently retrieved the property from the Jail.

¶13 On April 5, 1993, Dorwart filed a complaint against Caraway, Ames, Sheriff
Cliff Brophy (Brophy) and Stillwater County (collectively, the County). The
complaint asserted various state and federal claims, as well as several common law
tort claims, resulting from the seizure of his property and requested monetary
damages. Dorwart later amended the complaint to add a claim for declaratory and
injunctive relief based on his contention that Montana's post-judgment execution
statutes are unconstitutional. Harry Dorwart, Dorwart's father and the owner of
Dorwart's residence, asserted a trespass claim against Caraway and Ames.

¶14 The County moved for summary judgment on all claims against all defendants

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and Dorwart moved for partial summary judgment on all but two of his claims. The
District Court granted Dorwart's motion for summary judgment on his claim for
declaratory and injunctive relief, granted the County's motion for summary
judgment on the remainder of Dorwart's claims and entered judgment accordingly.
Dorwart appeals and the County cross-appeals.

                                                  STANDARD OF REVIEW

¶15 Our standard in reviewing a district court's summary judgment ruling is de
novo; we use the same Rule 56, M.R.Civ.P., criteria as the district court. Clark v.
Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997 (citations omitted).
A party seeking summary judgment must establish the absence of any genuine issue
of material fact which would allow the nonmoving party to recover and entitlement
to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Clark, 279 Mont. at 283, 927
P.2d at 997-98 (citations omitted).

¶16 Ordinarily, we begin our review in a summary judgment case by determining
whether the moving party established the absence of disputed and material fact
issues. See Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 475, 942
P.2d 694, 696-97. Here, however, the material facts are undisputed and the parties'
assertions of error relate only to the District Court's conclusions of law regarding
entitlement to summary judgment. We review a district court's conclusions of law to
determine whether those conclusions are correct. Albright v. State, by and through
State (1997), 281 Mont. 196, 205, 933 P.2d 815, 821 (citation omitted).

                                                            DISCUSSION

¶17 1. Did the District Court err in determining that the actions of the Sheriff's
deputies in entering Dorwart's residence and levying upon personal property therein
did not violate Dorwart's constitutional rights to be free from unreasonable searches
and seizures under the Fourth Amendment to the United States Constitution and
Article II, Section 11 of the Montana Constitution or his right to privacy under
Article II, Section 10 of the Montana Constitution?

¶18 The District Court concluded that Ames and Caraway did not violate Dorwart's
constitutional rights when they entered his home and levied upon property therein
because the writs of execution constituted judicial authorization for their actions.


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Dorwart contends that this conclusion is erroneous, arguing that the writs, in and of
themselves, were insufficient to justify intrusion into his home without a search
warrant. As a result, according to Dorwart, the deputies' entry into his home and
subsequent levy on his property violated his constitutional rights to be free from
unreasonable searches and seizures and his right to privacy. We address Dorwart's
separate search and seizure and privacy arguments in turn.

¶19 Dorwart's complaint stated two search and seizure-related claims against
Caraway and Ames. The first was brought pursuant to 42 U.S.C. § 1983 (§ 1983),
which authorizes a cause of action when a person has been deprived of a federally
protected right by another person acting under color of state law. See 42 U.S.C. §
1983; Mysse v. Martens (1996), 279 Mont. 253, 260, 926 P.2d 765, 769. This search
and seizure-related claim alleged that Caraway and Ames violated Dorwart's rights
under the Fourth Amendment to the United States Constitution. The second claim
alleged that the deputies' entry into Dorwart's home and seizure of his personal
property violated his state constitutional rights as guaranteed by Article II, Section
11 of the Montana Constitution. The County moved for summary judgment on both
causes of action, contending that the deputies' actions neither deprived Dorwart of a
federally protected right that would give rise to a § 1983 claim nor violated Article II,
Section 11 of the Montana Constitution.

¶20 The District Court granted the County's motion, concluding that Caraway and
Ames did not violate Dorwart's federal or state constitutional rights when they
entered his home and levied upon personal property therein because the writs of
execution constituted judicial authorization for their actions. Dorwart argues that
the writs, in and of themselves, were insufficient to justify intrusion into his home
and, as a result, that the entry into his home and levy on his property violated his
constitutional rights to be free from unreasonable searches and seizures.

¶21 The Fourth Amendment to the United States Constitution provides that

                  [t]he right of the people to be secure in their persons, houses, papers, and
                  effects, against unreasonable searches and seizures, shall not be violated, and
                  no Warrants shall issue, but upon probable cause, supported by Oath or
                  affirmation, and particularly describing the place to be searched, and the
                  persons or things to be seized.



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Article II, Section 11 of the Montana Constitution mirrors the Fourth Amendment to the
United States Constitution and, as a result, we analyze most search and seizure questions
arising under Article II, Section 11 using traditional Fourth Amendment principles. State
v. Siegal (1997), 281 Mont. 250, 264, 934 P.2d 176, 184. The fundamental purpose of the
Fourth Amendment's prohibition against unreasonable searches and seizures is to protect
the privacy and security of individuals and safeguard the sanctity of the home against
arbitrary invasions by government officials. Camara v. Municipal Court (1967), 387 U.S.
523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935; State v. Gray (1968), 152 Mont. 145,
149, 447 P.2d 475, 477. In effectuating that underlying purpose, the key principle
followed by courts is that "except in certain carefully defined classes of cases, a search of
private property without proper consent is 'unreasonable' unless it has been authorized by a
valid search warrant." Camara, 387 U.S. at 528-29 (citations omitted).

¶22 The specific issue before us is whether an officer's entry into a private residence
for the purpose of executing a writ of execution violates constitutional rights against
unreasonable searches and seizures where the only authorization for the officer's
entry into the residence is the writ of execution itself. The County contends that this
issue has been addressed in, and is controlled by, Ramsey v. Burns (1902), 27 Mont.
154, 69 P. 711. It relies on Ramsey for the proposition that one of the implied powers
authorized by a writ of execution includes the levying officer's right to enter a
judgment debtor's residence or place of business in order to execute the writ and, on
that basis, contends that the deputies' search of Dorwart's home and seizure of
property were not unreasonable because the writs of execution themselves authorized
entry into his home. The County's reliance on Ramsey is misplaced.

¶23 In Ramsey, a special officer, appointed by a justice of the peace and acting
pursuant to a pre-judgment writ of attachment, levied upon personal property
belonging to a business owned by Ramsey. In executing the writ, the officer entered
the business premises, locked the doors and remained in possession of both the
premises and the personal property within for five days, releasing the property only
when learning it had been mortgaged to another. Ramsey, 27 Mont. at 155, 69 P. at
712. Ramsey prevailed in a suit against the officer, the justice of the peace who issued
the writ and the sureties of the justice of the peace for damages resulting from
destruction of property, false imprisonment and interruption of her business and the
defendants appealed. Ramsey, 27 Mont. at 155-56, 69 P. at 712. In addressing the
defendants' contention that the trial court erred in instructing the jury that an
officer was not authorized to take possession of premises where property to be seized

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is located, this Court stated:

                  An officer has the right to enter a business place against the will of the
                  occupant, permission having been asked and refused, and to seize the property
                  therein belonging to the occupant and subject to levy. It is impossible to make
                  such levy in many cases, as where a whole stock of goods is seized, without
                  taking possession of the place where the goods are. . . . The officer has a right
                  to enter and have possession of the place, as above stated, for a reasonable
                  time, and he may have there the goods in storage for such reasonable time as
                  he may require to pack them and to procure the necessary transportation for
                  their removal.

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

¶24 Ramsey is readily distinguishable. Factual distinctions aside, no constitutional
search and seizure issue relating to execution of a writ was raised or addressed in
Ramsey. Thus, Ramsey has no application here.

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

¶26 Once a legitimate expectation of privacy has been established, any governmental
intrusion into Dorwart's home conducted without a search warrant is per se
unreasonable under the Montana and United States Constitutions subject to only a
few well-established exceptions. See State v. Loh (1996), 275 Mont. 460, 468, 914 P.2d
592, 597 (citing Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19
L.Ed.2d 576, 585). These well-established exceptions to the search warrant
requirement include voluntary and knowing consent to a search (State v. Rushton


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(1994), 264 Mont. 248, 257-58, 870 P.2d 1355, 1361) and exigent circumstances (State
v. Dawson (1988), 233 Mont. 345, 353, 761 P.2d 352, 357).

¶27 Here, it is undisputed that Ames and Caraway did not have a search warrant
authorizing their entry into Dorwart's home. It is also undisputed that Dorwart did
not consent to the deputies' entry into his home. Furthermore, the circumstances of
this case do not fit within the framework of the exigent circumstances exception or
any other established exceptions to the search warrant requirement and the County
does not argue that any of these exceptions exist in this case. Thus, these established
exceptions to the search warrant requirement are not satisfied here and, as a result,
it appears that the deputies' search of Dorwart's home and seizure of his property
were constitutionally unreasonable. See Loh, 275 Mont. at 468, 914 P.2d at 597.

¶28 The County contends, however, that it is well-established that a writ of
execution, in and of itself, authorizes officers to enter private residences to levy on
personal property therein. It cites to several cases in support of this proposition, but
the cases are distinguishable.

¶29 The County first relies on People v. Sylva (Cal. 1904), 76 P. 814, in which the
California Supreme Court stated that "[a]n officer charged with the duty of
enforcing a judgment by execution has the right to enter the premises of the
execution defendant if he can do so peaceably." Sylva, 76 P. at 815. In Sylva, an
attorney and a deputy sheriff entered the defendant's home to levy on property
pursuant to a writ of execution; the defendant pointed a gun at the two and ordered
them to leave the premises. The defendant was convicted of assault with a deadly
weapon and argued on appeal that the attorney and deputy were trespassers, thus
giving him the right to use all force necessary to expel them from his property. The
California court concluded that the writ of execution authorized the deputy to both
peaceably enter the defendant's home and bring the attorney as an assistant and,
therefore, the two were not trespassers. Thus, the defendant's justifiable use of force
defense failed as a matter of law. Sylva, 76 P. at 815. As in Ramsey, however, no
constitutional search and seizure issue relating to writs of execution was raised or
discussed in Sylva, and, as a result, that case has no application here.

¶30 The County also relies on Gumz v. Morrissette (7th Cir. 1985), 772 F.2d 1395, for
the proposition that the issuance of a writ of execution by a court after entry of a
judgment authorizes the seizure of a civil defendant's property. In Gumz, Wisconsin


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officials arrested the plaintiff and seized his dragline equipment based on their
determination that the plaintiff had been dredging a waterway without a permit in
violation of state civil statutes. The plaintiff brought an action against the officials in
the federal district court asserting, in part, a § 1983 claim based on allegations that
they violated his rights under the Fourteenth Amendment by seizing his property
without affording him due process of law. Gumz, 772 F.2d at 1398. A jury rendered a
verdict in favor of the defendants on this due process claim and the district court
subsequently denied the plaintiff's motion to amend the verdict. Gumz, 772 F.2d at
1399. The plaintiff appealed, arguing that the trial court erred in determining that, if
defendants established probable cause for their belief that the dragline was being
used for illegal dredging, the seizure of the dragline would not violate due process
constraints. Gumz, 772 F.2d at 1402.

¶31 The Seventh Circuit Court of Appeals concluded that the civil statutes at issue
did not authorize the seizure of property without a prior forfeiture action, stating
that "[s]eizure of a civil defendant's property would only be permissible after entry
of judgment and issuance of a writ of execution by the court." Gumz, 772 F.2d at
1403. This statement, however, clearly was directed only to Fourteenth Amendment
due process requirements necessary before state officials could deprive someone of
property pursuant to the civil statutes at issue. Indeed, the Seventh Circuit expressly
did not address any Fourth Amendment search and seizure issues in Gumz because
the plaintiff had waived those issues in the court below. Gumz, 772 F.2d at 1399, n.3.
Furthermore, the quoted statement relates only to authorization of a seizure of
property; the court made no reference to whether the issuance of a writ of execution
would authorize the entry onto private property to conduct a search for property.
For these reasons, Gumz is inapplicable here.

¶32 The County next cites to City of Costa Mesa v. Soffer (Cal. App. 1992), 13 Cal.
Rptr.2d 735. In Soffer, the California Court of Appeals determined that entry into
private property by city officials for inspection of an alleged nuisance, pursuant to
judicial authorization, did not contravene the Fourth Amendment proscription
against unreasonable searches and seizures. Soffer, 13 Cal.Rptr.2d at 741. The
County asserts that the writs of execution in the present case constitute the same type
of "judicial authorization" discussed by the California court in Soffer and, therefore,
Soffer supports its argument that the writs of execution authorized the deputies'
entry into Dorwart's home. We disagree.



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¶33 In Soffer, the "judicial authorization" was a court order specifically directing
the city officials to go onto the defendant's property to inspect the alleged nuisance.
Soffer, 13 Cal.Rptr.2d at 736. Here, neither the writs of execution themselves, nor the
post-judgment execution statutes pursuant to which the writs were issued, expressly
directed or authorized the deputies to enter Dorwart's private residence to effectuate
the seizure of his property. Thus, Soffer is distinguishable on its facts from the
present case and is of no assistance to the County.

¶34 Finally, the County cites to Boyd v. United States (1886), 116 U.S. 616, 6 S.Ct.
524, 29 L.Ed. 746, specifically relying on the United States Supreme Court's
statement therein that

                  [t]he entry upon premises, made by a sheriff or other officer of the law, for the
                  purpose of seizing goods and chattels by virtue of a judicial writ, such as an
                  attachment, a sequestration, or an execution, is not within the prohibition of
                  the Fourth . . . Amendment . . . .

Boyd, 116 U.S. at 624. The County urges that, since Boyd has never been overruled, it
constitutes controlling authority that writs of execution authorize officers to enter private
residences to levy upon property therein without the necessity of a search warrant and
without violating Fourth Amendment search and seizure principles. Again, we disagree.

¶35 First, the Supreme Court itself considers the above-quoted language from Boyd
to be dicta, and has refused to conclude that the Boyd language required a holding
that the Fourth Amendment warrant requirements did not apply to searches of
private premises for the purpose of collecting assessed tax deficiencies. See G.M.
Leasing Corp. v. United States (1977), 429 U.S. 338, 355-56, 97 S.Ct. 619, 630, 50 L.
Ed.2d 530, 545-46. In this regard, we previously have determined that we need not
regard dicta in Supreme Court cases as controlling the outcome of issues before us.
See Commonwealth Edison Co. v. State (1980), 189 Mont. 191, 200, 615 P.2d 847, 852.

¶36 Further, the Supreme Court's statement in Boyd was premised on its
determination that the Fourth Amendment prohibition against unreasonable
searches and seizures does not apply in civil contexts such as executing a writ of
execution because the underlying purpose of the search is to locate and seize
property to which the creditor is entitled in satisfaction of a debt and not to discover
evidence to support criminal charges against the owner of the premises. See Boyd,


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116 U.S. at 624. However, the Supreme Court subsequently has reevaluated its
earlier cases which concluded that an administrative search touches only the
periphery of the interests protected by the Fourth Amendment because it does not
seek evidence of criminal activity and, thus, that such a search involves only the less
intense "right to be secure from intrusion into personal privacy" rather than the
greater "self-protection" interests under the Fourth and Fifth Amendments. See
Camara, 387 U.S. at 530 (citing Frank v. State of Maryland (1959), 364 U.S. 360, 79 S.
Ct. 804, 3 L.Ed.2d 877; Boyd, 116 U.S. 616). Rather, the Supreme Court determined
in Camara that "[i]t is surely anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior . . ." because all citizens, law-abiding or not, have a
strong interest in limiting the circumstances in which the sanctity of the private home
may be invaded by official authority. Camara, 387 U.S. at 530-31.

¶37 We turn, then, to the issue of first impression in Montana which this case
presents: whether an officer's entry into a private residence to execute on a writ of
execution violates constitutional rights against unreasonable searches and seizures
where the only authorization for the entry is the writ of execution itself. The issue
includes two subissues: whether an entry into a residence to execute a writ of
execution is subject to constitutional search and seizure provisions and, if so, whether
the writ of execution satisfies, or is an exception to, the warrant requirement
contained in those provisions. We address these subissues in turn, beginning with a
closer review of the guidance provided by Camara and G.M. Leasing with regard to
the interface between civil administrative searches and modern constitutional search
and seizure principles.

¶38 In Camara, the Supreme Court addressed whether an administrative search of a
citizen's residence to inspect for housing code violations violated Fourth Amendment
rights when conducted without a search warrant. Camara, 387 U.S. at 534. There,
the city housing code at issue gave authorized city inspectors "the right to enter, at
reasonable times, any building, structure, or premises in the City to perform any
duty imposed upon them . . . ." Camara, 387 U.S. at 526. When Camara refused to
allow a city inspector into his home without a search warrant, the city filed a
criminal complaint. Camara, 387 U.S. at 527. Camara contended that the housing
code provision violated the Fourth and Fourteenth Amendments because it allowed
city officials to enter a private home without a search warrant and without probable
cause to believe that a violation of the housing code existed therein. Camara, 387 U.S.

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at 527.

¶39 The Supreme Court first concluded, as discussed above, that the Fourth
Amendment prohibition against unreasonable searches and seizures applies in civil,
as well as criminal, contexts because all citizens have a strong interest in securing
their homes from intrusion by officials regardless of the reason for the intrusion.
Camara, 387 U.S. at 530-31. The Supreme Court was concerned that, when an
inspector requests entry for an inspection, the occupant of the home has no
knowledge of whether enforcement of the code actually requires entry into that
home, whether the inspector is acting under proper authority, or the lawful limits of
the inspector's power to search. These are matters which, under other circumstances,
normally are addressed by a neutral magistrate in reviewing search warrant
applications. Thus,

                  [t]he practical effect of this system is to leave the occupant subject to the
                  discretion of the official in the field. This is precisely the discretion to invade
                  private property which we have consistently circumscribed by a requirement
                  that a disinterested party warrant the need to search. . . . We simply cannot say
                  that the protections provided by the warrant procedure are not needed in this
                  context . . . .

Camara, 387 U.S. at 532-33. For these reasons, the Supreme Court determined that
administrative searches such as the housing code inspection were significant intrusions on
interests protected by the Fourth Amendment and were subject to the warrant requirement.
Camara, 387 U.S. at 534.

¶40 Similarly, in G.M. Leasing, the Supreme Court concluded that, in levying upon
property to satisfy tax deficiencies, the government was not exempt from the Fourth
Amendment stricture that a search of private property is unreasonable unless
authorized by a valid search warrant. G.M. Leasing, 429 U.S. at 358. In that regard,
the Supreme Court determined that the government's tax assessment, while
authorizing all types of property seizures in general, did not authorize all types of
warrantless intrusions into privacy to effect those seizures. G.M. Leasing, 429 U.S. at
358. Thus, the internal revenue agents' entry into G.M. Leasing's business premises,
without a warrant, to levy on property therein violated G.M. Leasing's rights under
the Fourth Amendment. G.M. Leasing, 429 U.S. at 359.



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¶41 In both Camara and G.M. Leasing, the Supreme Court's primary concern was
that, absent a judicially authorized search warrant issued after a showing of
probable cause to search, there is no limitation on the discretion of the officer
conducting such an administrative search of a private home or business. Placing such
limitations on the discretion of when, where and how to conduct a search which
intrudes upon a private area is the precise reason behind the Fourth Amendment's
search warrant requirement. Camara, 387 U.S. at 534.

¶42 This Court also has long recognized that the protection against unreasonable
searches and seizures provision in Montana's Constitution applies to all people and
their homes and effects, without regard to whether criminal conduct is involved. See
State ex rel. King v. District Court (1924), 70 Mont. 191, 196-97, 224 P. 862, 864
(discussing Article III, Section 7 of the 1889 Montana Constitution, which is identical
to Article II, Section 11 of the 1972 Montana Constitution). On these bases, we
conclude that an officer's entry into a private home to execute a writ of execution is
subject to the search and seizure provisions of the Montana and United States
Constitutions. The question remains, however, whether a writ of execution is an
exception to, or satisfies, the warrant requirement of these constitutional provisions.

¶43 In the analogous administrative inspection context addressed in Camara, the
Supreme Court rejected the notion that an administrative search constituted an
exception to the Fourth Amendment's warrant requirement. It determined that, to
adequately protect a person's Fourth Amendment rights, there must be a showing of
"probable cause" to conduct an administrative inspection. Camara, 387 U.S. at 534.
In the administrative inspection arena, the probable cause requirement entails a
determination, after weighing the need for the inspection in terms of the reasonable
goal to be achieved thereby against the resulting intrusion, that the particular
inspection is reasonable under the circumstances. Camara 387 U.S. at 534-35.

                  The warrant procedure is designed to guarantee that a decision to search
                  private property is justified by a reasonable governmental interest. But
                  reasonableness is still the ultimate standard. If a valid public interest justifies
                  the intrusion contemplated, then there is probable cause to issue a suitably
                  restricted search warrant.

Camara, 387 U.S. at 539.



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¶44 More directly on point is Nebraska v. Hinchey (Neb. 1985), 374 N.W.2d 14.
There, a sheriff's deputy went to Hinchey's home to serve and execute a writ of
execution. Although Hinchey refused several times to allow the deputy inside, he
finally agreed, but asked the deputy to wait outside a moment while he "put
something away." The deputy, however, immediately followed Hinchey inside the
apartment and observed a jar of what appeared to be marijuana. Hinchey
subsequently was arrested for possession of marijuana and drug paraphernalia.
Hinchey, 374 N.W.2d at 16. Hinchey moved to suppress the evidence, arguing that
the deputy had violated his Fourth Amendment rights. The trial court denied the
motion, Hinchey was convicted and, thereafter, he appealed the denial of his motion
to suppress. Hinchey, 374 N.W.2d at 16-17.

¶45 On appeal, Hinchey argued that his Fourth Amendment rights were violated by
the deputy's entry into his apartment without a search warrant. The prosecution
responded that, once the deputy was inside the premises and saw the marijuana, he
was authorized to seize it under the "plain view doctrine." Thus, the question before
the Nebraska Supreme Court was whether the deputy was legally authorized to enter
Hinchey's apartment without a warrant prior to viewing the jar of marijuana. The
prosecution argued that, because the execution statutes required the deputy to seek
property which could be levied upon, the writ of execution issued pursuant to those
statutes provided the deputy with lawful authority to enter the apartment without a
warrant. Hinchey, 374 N.W.2d at 18.

¶46 The Nebraska court observed at the outset that the statute requiring an officer to
seek property on which a levy could be made could not supersede constitutional
prohibitions against unreasonable searches and seizures. It determined that, while
the Nebraska execution statute authorized the general "seizure" of Hinchey's
property, it did not authorize a warrantless "search" for that property when such a
search violated the debtor's Fourth Amendment rights. Hinchey, 374 N.W.2d at 18-
19. The court further concluded that the writ of execution itself did not constitute
judicial authorization, as contemplated by the Fourth Amendment's warrant
requirement, because issuance of the writ was purely ministerial and did not require
any action or review by a court; to obtain a writ, a judgment creditor needed only to
file a praecipe with the clerk of court. Hinchey, 374 N.W.2d at 19. Indeed, the writ
was issued

                  without any showing upon which it may be found that property cannot

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                  otherwise be obtained without violating the debtor's fourth amendment right
                  against unreasonable searches and seizures. That is why arming a sheriff or
                  one of his deputies with a writ of execution is not the same as employing
                  judicial process of a type required for one to obtain a search warrant or an
                  arrest warrant. We see little reason to distinguish between the requirements
                  which must be met before property or persons may be seized for criminal
                  purposes and before property or persons may be seized for civil purposes.
                  Likewise, the fourth amendment does not recognize such a distinction.

Hinchey, 374 N.W.2d at 19. As a result of these conclusions, the Hinchey court held that,
absent exigent circumstances, an officer may not enter a private home to levy upon
property therein without first obtaining an "execution warrant." Hinchey, 374 N.W.2d at
20. Thus, the officer's entry into Hinchey's home pursuant to the writ of execution did not
constitute an exception to the Fourth Amendment warrant requirement and the writ itself
did not rise to the level of a search warrant authorizing the search.

¶47 In the present case, it is undisputed that Caraway and Ames did not obtain a
search warrant authorizing them to enter Dorwart's home. In arguing that a warrant
was not required under the circumstances, the County points out that the writs of
execution in this case were issued and acted upon in conformity with Montana's post-
judgment execution statutes. This is, of course, similar to the argument made in
Hinchey and rejected on the basis that a statute cannot supersede the Fourth
Amendment prohibition against unreasonable searches and seizures. See Hinchey,
374 N.W.2d at 18. The mere fact that the issuance of the writs, and the deputies'
conduct pursuant to those writs, did not violate applicable statutes does not establish
that the statutory procedures adequately protect the constitutional rights of either
Dorwart or other judgment debtors under similar circumstances. See, e.g., Duran v.
Buttrey Food, Inc. (1980), 189 Mont. 381, 392, 616 P.2d 327, 333. "To accept that
rationale would be to surrender this Court's power to determine the constitutionality
of enactments of the legislature." Duran, 189 Mont. at 392, 616 P.2d at 333.

¶48 Moreover, nothing in the post-judgment execution statutes expressly authorizes
the entry into a private home for the purposes of executing a writ of execution. While
the execution statutes authorize the levy on--or "seizure" of--a judgment debtor's
personal property pursuant to a writ of execution, they do not authorize officials to
enter private homes to search for that property. See, e.g, §§ 25-13-304, 25-13-306, 25-
13-307, 25-13-402, MCA.

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¶49 The County also contends that the writs were judicially approved by the
Stillwater County Justice of the Peace, thus fulfilling the "neutral magistrate"
purpose served by the constitutional search warrant requirement. We disagree. The
writs of execution here cannot be said to have been "judicially approved" in a
manner which fulfilled the purpose served by--or the requirements for--a search
warrant.

¶50 Review of a search warrant application by an impartial magistrate ensures that
a neutral and detached evaluation of the situation is interposed between the
investigating officers and the private citizen. State v. Wilson (1994), 266 Mont. 146,
149, 879 P.2d 683, 684. As a result, Montana law requires that a judge or magistrate
evaluate a search warrant application and make an objective determination as to
whether an intrusion into a private home is reasonable and justified under the
circumstances. Wilson, 266 Mont. at 149, 879 P.2d at 684. A judge may issue a search
warrant only upon written application, made under oath or affirmation, which states
sufficient probable cause for authorizing the search. Art. II, Sec. 11, Mont. Const.; U.
S. Const. amend. IV; § 46-5-221, MCA. Moreover, a search warrant must
particularly describe the person or place to be searched and the items to be seized.
Art. II, Sec. 11, Mont. Const.; U.S.Const. amend. IV; § 46-5-221, MCA.

¶51 Here, it is true that the writs of execution were signed by the Stillwater County
Justice of the Peace. Indeed, Rule 23(C), M.J.C.C.R.Civ.P., requires that a writ of
execution to enforce a justice court judgment be signed by a justice of the peace.
However, neither the justice court civil procedure rules nor the post-judgment
execution statutes require any substantive impartial review by a court regarding
whether a writ of execution should be issued. Nor does the record reflect any
applications for the writs at issue here based on affidavit or other testimony
describing the place to be searched, the property sought and the necessity of the
search. Likewise, the record is devoid of any indication that the Justice of the Peace
made an objective determination that there was probable or reasonable cause to
believe the search of Dorwart's home was justified under the circumstances. Finally,
the writs themselves do not constitute a suitably restricted search warrant because
they fail to delineate the property sought or the place to be searched with any
specificity.

¶52 The procedures used here, and the writs of execution issued thereunder, simply
did not sufficiently limit the deputies' discretion in executing the writs to satisfy the

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search and seizure provisions of the Fourth Amendment to the United States
Constitution or Article II, Section 11 of the Montana Constitution. We conclude,
therefore, that the writs of execution were not adequate--in and of themselves--to
authorize the deputies' entry into Dorwart's home and that Ames' and Caraway's
entry into Dorwart's home and seizure of his personal property, without his consent
and without benefit of a warrant, violated Dorwart's rights under these
constitutional provisions. As a result, we hold that the District Court erred in
determining that the actions of Caraway and Ames in entering Dorwart's residence
and levying upon personal property therein did not violate Dorwart's right to be free
from unreasonable searches and seizures.

¶53 Having concluded that writs of execution do not authorize the entry into and
search of a private home, the question arises as to how lawful authority to enter and
search a home to execute a writ of execution can be obtained. Again, we look to
Hinchey for guidance.

¶54 The Hinchey court observed, first, that an officer still has a duty to seek and take
possession of property which can be obtained without violating the owner's Fourth
Amendment rights. Hinchey, 374 N.W.2d at 20. When the officer has been unable to
secure such property as would satisfy the underlying judgment, however, and there is
reason to believe that personal property subject to execution may be located within
the debtor's residence, an "execution warrant" should be obtained pursuant to the
following procedures:

                  Such an execution warrant should be issued only by a judge . . . upon
                  reasonable cause supported by affidavit setting out that a writ of execution has
                  been issued and returned unsatisfied in whole or in part and that the affiant
                  has reason to believe that there is property subject to execution in the
                  possession of the debtor kept and maintained within the debtor's residence,
                  not otherwise available for execution, describing the property sought and the
                  place and purpose of the execution. If the judge is satisfied that there is
                  reasonable cause to believe that there is property of the debtor within the
                  debtor's possession and that other property is not available for levy and
                  execution, the judge may then issue an execution warrant authorizing the
                  officer to enter the premises and levy upon property subject to execution. In
                  this manner the fourth amendment prohibition against unreasonable searches
                  and seizures will be satisfied.

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Hinchey, 374 N.W.2d at 20. We agree with, and adopt, the execution warrant
requirement and procedures set forth in Hinchey for those situations where
insufficient property has been obtained pursuant to the writ of execution. We
conclude that such an execution warrant, obtained under the procedures set forth
above, will protect judgment debtors' rights to be free from unreasonable searches
and seizures under both the Montana and United States Constitutions.

¶55 The District Court also granted summary judgment to the County on Dorwart's
claim that the actions of Caraway and Ames violated his right to privacy as
guaranteed by the Montana Constitution. In this regard, the court concluded that the
deputies' actions were reasonable, within the scope of the law and justified by the
writs of execution. Thus, the court further concluded that, because no unreasonable
search took place, Dorwart's privacy claim failed as a matter of law. Dorwart argues
that the District Court's conclusions are erroneous and that there is no compelling
state interest which justified the nonconsensual, warrantless entry into his home.

¶56 Article II, Section 10 of the Montana Constitution provides as follows:

                  The right of individual privacy is essential to the well-being of a free society
                  and shall not be infringed without the showing of a compelling state interest.

We previously have held that an official action which constitutes a "search" as that term is
defined, and which is conducted without benefit of a search warrant, implicates Article II,
Section 10 of Montana's Constitution and must be justified by the demonstration of a
compelling state interest. See Siegal, 281 Mont. at 257, 934 P.2d at 192. Moreover, any
compelling state interest justifying such an intrusion on a person's privacy must be closely
tailored to effectuate only that compelling interest. State v. Pastos (1994), 269 Mont. 43,
47, 887 P.2d 199, 202 (citing Zablocki v. Redhail (1978), 434 U.S. 374, 388, 98 S.Ct. 673,
682,

54 L.Ed.2d 618, 631). Thus, as it is clear that there was a warrantless search of Dorwart's
home, there also must be a concomitant compelling state interest justifying that search in
order to avoid violating Dorwart's right to privacy under the Montana Constitution.

¶57 We held above that the deputies' actions of entering Dorwart's home and seizing
his personal property therein constituted an unreasonable search and seizure. As a
result, the District Court's conclusion that no violation of Dorwart's constitutional

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privacy rights occurred, to the extent it is based on the erroneous determination that
the search was reasonable, also is erroneous. Thus, we address the arguments
presented regarding whether a compelling state interest justified the intrusion into
Dorwart's home.

¶58 The County does not specifically assert the existence of a compelling state
interest justifying the intrusion into Dorwart's home by Caraway and Ames, but
rather focuses on the fact that the writs of execution were issued by the Stillwater
County Justice Court in conformity with the statutes governing post-judgment
execution procedures. On that basis, it argues that no violation of privacy rights
occurred because the writs gave the deputies legal authority to enter Dorwart's
home. We have resolved this argument against the County above and need not
address it further here.

¶59 The Attorney General of the State of Montana (State), appearing as amicus
curiae, argues that the compelling state interest here is the enforcement of monetary
judgments by the seizure of a judgment debtor's property and the preservation of the
credibility of the judicial system. We previously have recognized that a compelling
state interest justifying an intrusion into a person's privacy may exist where the state
is acting to enforce its criminal laws for the benefit and protection of other
fundamental rights of its citizens. See, e.g., Siegal, 281 Mont. at 263, 934 P.2d at 184;
State v. Solis (1984), 214 Mont. 310, 319, 693 P.2d 518, 522. In the present case,
however, the entry into Dorwart's home was not undertaken to enforce the state's
criminal laws nor was it for the purpose of protecting society in general from the
actions of criminal wrongdoers. The entry was effectuated for the purpose of
enforcing a civil judgment between two private citizens. While we agree that the state
has an interest in preserving the integrity of our judicial system and the
enforceability of judgments, this interest is not so "compelling" as to justify an
intrusion into a person's private home, without his or her consent, for the purposes of
searching through that home and seizing any and all items of property which might
have some value.

¶60 Neither the County nor the State presents additional argument as to the
existence of a compelling state interest, closely tailored to effectuate only that
interest, which justified the warrantless entry into Dorwart's home and we conclude
that no such compelling interest exists. As a result, we hold that the District Court
erred in concluding that the actions of Caraway and Ames in entering Dorwart's

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residence and levying upon personal property therein did not violate Dorwart's right
to privacy under Article II, Section 10 of the Montana Constitution.

¶61 Because the District Court erroneously concluded that Dorwart's right to be free
from unreasonable searches and seizures and right to privacy were not violated by
the deputies' actions in this case and granted summary judgment to the County on
that basis, further consideration by the trial court of Dorwart's search and seizure
and right to privacy claims under the state constitution was prematurely terminated.
In light of our holdings that the District Court erred in granting summary judgment
on Dorwart's claims under Article II, Sections 10 and 11 of the Montana
Constitution, we remand for further proceedings on those state constitutional claims.

¶62 2. Did the District Court err in determining that Montana's post-judgment
execution statutes are unconstitutional because they do not provide the procedural
due process of law required by Article II, Section 17 of the Montana Constitution
and the Fourteenth Amendment to the United States Constitution?

¶63 Montana's post-judgment execution statutes are located in Title 25, Chapter 13
of the Montana Code Annotated (MCA). Pursuant to those statutes, a party who
receives a judgment for money or the possession of property may have a writ of
execution issued to enforce that judgment. See §§ 25-13-101(1) and 25-13-201, MCA.
A writ of execution issued against the property of the judgment debtor must be
satisfied through the levy on and sale of the judgment debtor's personal or, if
necessary, real property. See §§ 25-13-304 and 25-13-402, MCA. All property of the
judgment debtor not specifically exempt by law is subject to execution (§ 25-13-501,
MCA) and property exempt from execution is set forth in Title 25, Chapter 13, Part
6 of the MCA.

¶64 In creating the statutory exemptions from execution, the Montana Legislature
provided that some types of property are completely exempt from execution, while
other types of property are exempt from execution only up to a certain monetary
amount. For example, § 25-13-608, MCA, provides that judgment debtors are
entitled to exemption from execution of the property and benefits enumerated
thereunder without limitation as to the monetary value of the property or benefit. In
contrast, § 25-13-609, MCA, provides that judgment debtors are entitled to
exemption from execution of the debtor's interest, not exceeding designated
monetary values, in various specified items of personal property. In this case,


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Dorwart claimed that the deputies levied on personal property which was exempt
under § 25-13-609, MCA.

¶65 Dorwart's complaint sought a declaratory judgment and injunctive relief on the
basis that Montana's post-judgment execution statutes violate his rights to due
process of law under the Montana and United States Constitutions. He asserted that
he has a property interest in the statutory exemptions from execution provided to
judgment debtors and that the statutory execution procedures are constitutionally
inadequate because they allowed the County to deprive him of his property interest
in the exemptions from execution without due process of law.

¶66 The District Court granted Dorwart's motion for summary judgment on this
claim, determining that the due process provided by the execution statutes is
constitutionally deficient. The County contends that the District Court erred, arguing
that Dorwart has no constitutionally protected property interest in asserting a
statutory personal property exemption and, absent such a property interest, there
can be no due process violation. The County also argues that, even if Dorwart has a
protected property interest, Montana's post-judgment execution statutes provide
adequate due process. We address these arguments in turn.

                                     A. Property interest in statutory exemptions

¶67 The Montana Constitution provides that "[n]o person shall be deprived of life,
liberty, or property without due process of law." Art. II, Sec. 17, Mont. Const.
Similarly, the Fourteenth Amendment to the United States Constitution provides
that no state shall "deprive any person of life, liberty, or property, without due
process of law . . . ."

¶68 In determining whether constitutional due process protections have been
violated in a given case, we first address whether a property or liberty interest exists
which rises to a level accorded due process protection under the United States and
Montana Constitutions. Akhtar v. Van De Wetering (1982), 197 Mont. 205, 210, 642
P.2d 149, 152. In order to establish a property interest in a benefit such as the
personal property exemptions at issue here, a person must show that he or she has a
legitimate claim of entitlement to the benefit. Akhtar, 197 Mont. at 211, 642 P.2d at
153 (citing Board of Regents v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33
L.Ed.2d 548, 561). The source of such an entitlement to a benefit may be found in


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state law. Akhtar, 197 Mont. at 211, 642 P.2d at 153 (citing Roth, 408 U.S. at 577).
Therefore, in determining whether Dorwart has a legitimate claim of entitlement to
statutory exemptions from execution which creates a constitutionally protected
property right, we look first to the statutes establishing the property exemptions
available to a judgment debtor in Montana.

¶69 Section 25-13-606, MCA, expressly provides that a resident of Montana is
"entitled" to the statutory exemptions from execution. Sections 25-13-608 and 25-13-
609, MCA, also provide that judgment debtors are "entitled" to the specific
exemptions from execution enumerated therein. Moreover, "entitle" is defined as "to
give a right or legal title to . . . [t]o qualify for; to furnish with proper grounds for
seeking or claiming." black's law dictionary 532 (6th ed. 1990). Thus, by stating that
judgment debtors are "entitled" to the statutory exemptions, the Montana
Legislature has given judgment debtors a legal right to claim and benefit from those
exemptions.

¶70 The County posits, however, that we construed the statutory exemptions from
execution as personal privileges, rather than entitlements, in Tetrault v. Ingraham
(1918), 54 Mont. 524, 171 P. 1148, and Matter of Estate of Sandvig (1991), 250 Mont.
220, 819 P.2d 184. From that premise, it argues that a judgment debtor has no
property right entitling him or her to claim personal property as exempt from
execution. We disagree.

¶71 In Tetrault, the sheriff levied on and sold property the judgment debtor
previously had sold to another person. Tetrault, 54 Mont. at 527, 171 P. at 1149. In
subsequent litigation, the purchaser at the sheriff's sale asserted that the property
had been exempt from execution at the time he purchased it. Tetrault, 54 Mont. at
525-26, 171 P. at 1149. In discussing on appeal whether the property was exempt
from execution, we determined that the right to claim an exemption is a "personal
privilege" of the judgment debtor which can be--and was--waived by the debtor
when he sold the property prior to the sheriff's sale. Tetrault, 54 Mont. at 528, 171 P.
at 1149. The ability to claim property exemptions was a "personal privilege" because
the exemption was personal to the debtor and did not attach to, or transfer with, the
property when sold to another. In other words, Tetrault's "personal privilege"
language related to who could claim the exemption; it did not relate to whether the
exemption from execution was an entitlement or a privilege for purposes of
determining whether a property right exists in the exemptions. Thus, Tetrault is not

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authority for the proposition that a judgment debtor does not have a property
interest in statutory exemptions from execution.

¶72 Nor does Estate of Sandvig support the County's argument that Dorwart does
not have a property interest in claiming statutory exemptions from execution. There,
the appellants owned a 1929 Model A Ford which was levied on and sold in partial
satisfaction of a judgment debt owed to the Sandvig estate. They did not claim the
Ford as exempt property. Estate of Sandvig, 250 Mont. at 221-22, 819 P.2d at 185.
Subsequently, the appellants petitioned for bankruptcy, claiming a different vehicle
as exempt property under the bankruptcy statutes. Several weeks later, they
petitioned the district court for recovery of $1,200 each from the Sandvig estate for
their exemption interest as judgment debtors in the Ford. The district court denied
their petition on the basis that the appellants had waived their exemption interest in
the Ford by obtaining an exemption for a different vehicle in the bankruptcy
proceeding. We affirmed and, in doing so, reiterated the statement from Tetrault
that the statutory exemptions from execution are personal privileges. Estate of
Sandvig, 250 Mont. at 222, 819 P.2d at 185-86. We did not further discuss or refer to
the "personal privilege" language and, as in Tetrault, that language did not relate to
whether the judgment debtors had a property interest in statutory exemptions.
Indeed, as in Tetrault, no issue was raised or discussed in Estate of Sandvig
regarding whether the appellants had a property interest in the statutory exemptions
from execution which would raise due process concerns.

¶73 The State also argues that Dorwart does not have a property interest in the
exemptions which is protected under the due process provisions of the Montana and
United States Constitutions. The State points out that, pursuant to § 25-13-609,
MCA, Dorwart's interest in the listed statutory exemptions from execution lies only
in the specified monetary amounts provided in the statute, rather than in any
particular item of property, and, as a result, Dorwart cannot have a protected
property interest in the specific items of personal property. The State asserts that the
interest protected by the statutory exemption is merely the debtor's equity interest,
up to the statutorily established amount, in the property's value. Under the State's
theory, the debtor is not entitled to retain possession of exempt property which has a
value greater than the statutorily exempt amount, but is entitled only to the
exempted value of that property. Thus, according to the State, the debtor does not
have a protected property interest in the specified item of personal property.



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¶74 The State misapprehends the nature of the protected property interest at issue
here. A judgment debtor's property interest lies in the statutory exemption from
execution itself and the ability to claim that exemption. The resulting benefit to the
debtor from claiming a statutory exemption from execution may be either retaining
possession of the item of property itself or receiving money equivalent to the
statutorily exempt amount, depending on the nature and value of the particular item
of property. Regardless of the form in which the debtor ultimately receives the
benefit of the exemption from execution, he or she is entitled to claim the statutory
exemption and that is the property interest which is protected by the right to due
process.

¶75 We conclude that, by providing that all Montana residents are entitled to
specified exemptions from execution, the Legislature has conferred upon judgment
debtors an entitlement to claim and benefit from those exemptions. We hold,
therefore, that Montana judgment debtors have a property interest in the statutory
exemptions from execution which is protected by the due process guarantees
contained in the Montana and United States Constitutions.

B. Adequacy of due process provided by the post-judgment execution statutes

¶76 Having held that due process protects a judgment debtor's property interest in
statutory exemptions from execution, we turn to the District Court's determinations
that Montana's post-judgment execution statutes do not provide adequate due
process and are, therefore, unconstitutional. In this regard, we observe that due
process generally requires notice of a proposed action which could result in depriving
a person of a property interest and the opportunity to be heard regarding that
action. See Matter of Klos (1997), 284 Mont. 197, 205, 943 P.2d 1277, 1281.

¶77 The County argues that the District Court's ultimate conclusion that the statutes
are unconstitutional is erroneous because the court failed to follow the United States
Supreme Court's binding precedent in Endicott-Johnson Corp. v. Encyclopedia
Press (1924), 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288. We disagree.

¶78 In Endicott-Johnson, the Supreme Court held that due process of law under the
Fourteenth Amendment to the United States Constitution does not require that a
judgment debtor be given notice and an opportunity to be heard prior to the issuance
and execution of a writ of garnishment. When the debtor has been given an


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opportunity to be heard and have his or her day in court regarding the underlying
judgment, he or she must take notice of what will follow after entry of the judgment;
no further notice or hearing is necessary before instituting supplemental proceedings
to enforce the judgment. Endicott-Johnson, 266 U.S. at 288.

¶79 Endicott-Johnson addressed only whether notice and opportunity for a hearing
must be afforded to a judgment debtor prior to the issuance and execution of a writ
of garnishment. It did not address whether due process required notice and
opportunity for a hearing after the writ has been issued and the debtor's monies
garnished, so that the debtor might be allowed to assert any available exemptions
from garnishment or execution. Indeed, the existence of statutory exemptions from
garnishment or execution was not raised in Endicott-Johnson and the Supreme
Court did not discuss whether statutory exemptions from execution or garnishment
might affect due process considerations in such situations.

¶80 Nor are the additional cases on which the County relies as support for its
assertion that Endicott-Johnson controls the due process issue before us applicable.
While two of those cases cite to Endicott-Johnson for its holding that notice and
opportunity for a hearing are not required prior to a writ of garnishment or
execution being issued, neither case addressed whether due process requires notice
and opportunity for a hearing after a debtor's money has been garnished or property
levied on so that a debtor may effectively assert available exemptions. See Langford
v. State of Tennessee (W.D. Tenn. 1973), 356 F.Supp. 1163, 1164; Moya v. DeBaca (D.
N.M. 1968), 286 F.Supp. 606, 608. The remaining two cases on which the County
relies, while recognizing the continued viability of the Endicott-Johnson holding
within its factual parameters, explicitly distinguish Endicott-Johnson from, and hold
it inapplicable to, situations where statutory exemptions from execution or
garnishment exist of which the debtor may be erroneously deprived if not afforded
notice and opportunity to be heard at some point during the post-judgment
proceedings. See Neely v. Century Finance Co. of Ariz. (D. Ariz. 1985), 606 F.Supp.
1453, 1461-62; Cagle v. Carlson (Ariz. App. 1985), 705 P.2d 1343, 1348.

¶81 Moreover, we observe that many of the recent federal cases which have
addressed the constitutionality of state statutory schemes for post-judgment
garnishment or execution also have determined that Endicott-Johnson is factually
distinguishable and, therefore, not dispositive in cases where the statutes at issue
grant judgment debtors the right to claim various exemptions from execution. As the

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United States Court of Appeals for the Tenth Circuit has noted, Endicott-Johnson
did not consider the existence of exempt property which might be erroneously seized
and sold if some post-judgment notice and hearing are not accorded to the debtor.
Aacen v. San Juan County Sheriff's Dept. (10th Cir. 1991), 944 F.2d 691, 695
(citations omitted).

                  "Endicott's rationale assumed that the judgment resolved all outstanding
                  issues between the debtor and the creditor, collection being a ministerial act.
                  However, the judgment does not resolve whether certain property is exempt."
                  McCahey v. L.P. Investors [(2nd Cir. 1985), 774 F.2d 543, 548]. That is,
                  while the judgment resolves the issue whether a debt exists, it does not
                  address whether the creditor can seek satisfaction of the debt from this
                  particular asset.

Aacen, 944 F.2d at 695; see also Finberg v. Sullivan (3rd Cir. 1980), 634 F.2d 50, 56-57;
Deary v. Guardian Loan Co., Inc. (S.D.N.Y. 1982), 534 F.Supp. 1178, 1185; Kirby v.
Sprouls (C.D. Ill. 1989), 722 F.Supp. 516, 520. Indeed, some cases have questioned
Endicott-Johnson's continued viability in light of modern-day due process jurisprudence.
See, e.g., Finberg, 634 F.2d at 56-57; Dionne v. Bouley (1st Cir. 1985), 757 F.2d 1344,
1351; Deary, 534 F.Supp. at 1185-86.

¶82 We are persuaded by the reasoning of the above cases. As a result, we conclude
that, insofar as Dorwart asserts that Montana's post-judgment execution statutes
violate due process of law because they do not adequately protect his property
interest in the exemptions available thereunder, Endicott-Johnson is not controlling
and the District Court did not err in so determining. Having rejected the County's
threshold assertion of error, we proceed to address the substantive basis for the
District Court's conclusion that Montana's post-judgment execution statutes are
unconstitutional because they do not provide judgment debtors with notice of the
seizure of property, notice of the statutory exemptions from execution, notice of
procedures by which to claim exemptions and of the availability of a hearing
regarding those exemptions, and a prompt hearing on whether the property is
exempt.

¶83 In addressing whether statutes governing post-judgment execution and
garnishment procedures provide adequate due process protections, many of the
federal cases cited above apply a balancing test culled from Mathews v. Eldridge


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(1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. See, e.g., Aacen, 944 F.2d at 695-96;
Dionne, 757 F.2d at 1352; Finberg, 634 F.2d at 58; Kirby, 722 F.Supp. at 521.

                  [I]dentification of the specific dictates of due process generally requires
                  consideration of three distinct factors: First, the private interest that will be
                  affected by the official action; second, the risk of an erroneous deprivation of
                  such interest through the procedures used, and the probable value, if any, of
                  additional or substitute procedural safeguards; and finally, the Government's
                  interest, including the function involved and the fiscal and administrative
                  burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335. Indeed, we previously have recognized and applied this
balancing test in addressing the extent of procedural safeguards required to protect due
process rights under other circumstances (see M.C. v. Department of Institutions (1984),
211 Mont. 105, 109-10, 683 P.2d 956, 958-59; Matter of M.F. (1982), 201 Mont. 277, 284-
86, 653 P.2d 1205, 1208-09), and it is appropriate that we weigh the Mathews factors in
our consideration of the due process issue here, as did the District Court.

                                                 1. Private Interests Involved

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

¶85 The judgment debtor's interest in the execution process, on the other hand, is to
preserve his or her ability to claim that certain property is not subject to execution.
As we concluded above, judgment debtors have a property interest in the ability to
claim statutory exemptions from execution and, thus, have a strong interest in their
ability to initiate procedures by which to effectively claim those exemptions and


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preserve exempt property. This includes the debtor's interest in asserting the
statutory exemptions from execution to which he or she is entitled and receiving a
prompt determination of whether the property which has been, or is about to be,
levied on is subject to execution.

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

           2. Risk of Erroneous Deprivation and Value of Other Procedural Safeguards

¶87 The second Mathews factor necessitates an examination of the post-judgment
execution statutes, in light of the asserted procedural deficiencies of those statutes, to
determine whether, under the statutory procedures, there is a risk that judgment
debtors will be erroneously deprived of their property and whether requiring
additional procedural safeguards would be valuable in reducing the risk of erroneous
deprivation.

                                            a. notice of the seizure of property

¶88 Dorwart first asserts that the post-judgment execution statutes are procedurally
inadequate because they fail to require that judgment debtors be notified of the
seizure of their property either before or after the fact. Indeed, while Dorwart was
provided with actual notice of the pending seizure of his property when he was
served with the two writs of execution, there is no statutory requirement in the MCA
that writs of execution be served upon a judgment debtor at any time. Nor do the
statutes provide for any other method of notifying a judgment debtor that property
has been seized in satisfaction of a judgment.

¶89 Without notice to a debtor that property will be, or has been, seized under a writ


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of execution, a debtor's exempt property could be levied on and sold before the
debtor was aware of the seizure, particularly if the property were not in the debtor's
direct possession. Providing such notice to a debtor would protect the debtor's ability
to assert the statutory exemptions from execution to which the debtor is entitled. It is
clear, however, that a requirement that the debtor be notified of a seizure of property
may detrimentally affect a creditor's interest by creating an opportunity for the
debtor to secrete or dispose of property before the property can be levied on.

¶90 In recognition of these competing concerns, due process usually does not require
that a debtor be given notice prior to issuance of a writ of execution or even prior to
the levy on the property, as long as the debtor is given notice of the property seizure
in a manner which protects the debtor's ability to assert exemptions. Dionne, 757
F.2d at 1352; Finberg, 634 F.2d at 59. However, "[o]nce the attachment is made,
removing the possibility that the debtor will secrete his assets, the debtor must
receive and be notified of a timely opportunity to challenge any sequestration of his
property which the law makes unattachable." Dionne, 757 F.2d at 1352 (citations
omitted). The additional procedural safeguard of providing a judgment debtor with
notice at the time of or shortly after seizure would be valuable in decreasing the risk
of an erroneous deprivation of the debtor's exempt property.

                                           b. notice of the statutory exemptions

¶91 Dorwart also asserts that the post-judgment execution statutes do not provide
adequate due process because they do not require that debtors be informed of the
existence of exemptions from execution. In this regard, the only notice of exemptions
provided in this case was a reference at the bottom of each of the writs of execution
directing the sheriff to satisfy the judgment out of any of Dorwart's property which
was "NOT EXEMPT FROM EXECUTION." The writs did not indicate what
property is statutorily exempt from execution or explain where a person could find
information on available exemptions, and the post-judgment execution statutes do
not require that judgment debtors be provided such information.

¶92 As we concluded above, judgment debtors have a protected property interest in
the ability to claim and benefit from statutory exemptions from execution. That
property interest could be lost if they are not informed that the exemptions exist
because a debtor unaware of the exemptions likely will not claim them. Thus, there is
a risk that debtors will be erroneously deprived of their interest in, and ability to


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claim, the statutory exemptions from execution.

¶93 In general, due process requires notice which, under the circumstances, is
reasonably calculated to inform interested parties of the action and afford them an
opportunity to present objections. Aacen, 944 F.2d at 697; Finberg, 634 F.2d at 61-
62. Notice to a judgment debtor informing him or her of the availability of
exemptions from execution and where information about those exemptions can be
found would preserve the debtor's opportunity to present objections to the levy on,
and possible sale of, property which is exempt from execution. To that extent, the
additional procedural requirement that debtors be provided with notice of the
existence of exemptions and how to locate more information about them would be
valuable in reducing the risk of erroneously depriving judgment debtors of their
interest in claiming statutory exemptions from execution.

                  c. notice of procedures by which to claim exemptions and of the availability
                  of a hearing regarding those exemptions

¶94 Dorwart next contends that the statutes at issue are procedurally inadequate
because they do not provide for notice to a judgment debtor of procedures whereby
the debtor may claim property, wages or benefits as exempt from execution and
receive a hearing on that claim. Indeed, Montana's post-judgment execution statutes
do not provide any means by which statutory exemptions can be claimed and
determined by a court of law. In response to this statutory vacuum, several methods
of claiming exemptions have developed and been judicially approved (see, e.g., Welch
v. Huber (1993), 262 Mont. 114, 115, 862 P.2d 1180, 1181; State ex rel. Bartol v.
Justice of the Peace Court (1936), 102 Mont. 1, 5, 55 P.2d 691, 691-92), but none have
been incorporated into the execution statutes. It is clear that Dorwart availed himself
of one of these methods by moving for the release of his property and to quash the
writs of execution, which resulted in the Justice Court ordering the return of his
seized property. However, Dorwart did not receive actual notice of any available
procedures, statutory or otherwise, to claim exemptions from execution. The writs of
execution issued in this case were completely silent as to whether a process existed by
which to assert exemption rights and how to initiate such a process. Furthermore, the
statutory post-judgment execution procedures contain no provision for affording a
judgment debtor notice of the availability of any means of asserting exemptions from
execution and receiving a hearing on those exemptions.



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

                                 d. prompt hearing on whether property is exempt

¶96 Finally, Dorwart asserts that the post-judgment execution statutes are
unconstitutional because they fail to specifically provide for a hearing on claimed
exemptions available under the post-judgment execution procedures or for prompt
disposition of exemption claims. Due process clearly requires that a person be given
an opportunity for a hearing at which to present objections to an action which could
result in depriving the person of a property interest. See Matter of Klos, 284 Mont. at
205, 943 P.2d at 1281; Aacen, 944 F.2d at 697. In the present case, Dorwart asserted
his exemption claims by way of his motion for release of his property and to quash
the writs of execution and, eventually, the property levied on was returned to him.
However, the record does not indicate whether Dorwart ever received a hearing on
his exemption claims.

¶97 It is likely that, in most cases, the judgment creditor will have levied on the
property prior to the debtor asserting exemptions from execution and, as a result, the
longer a hearing on, and disposition of, the debtor's exemption claims is delayed, the
longer the debtor is deprived of possession of the exempt property. Thus, absent a
prompt hearing on a judgment debtor's claim that property is exempt from
execution, there is a risk of deprivation of the debtor's property. Requiring a prompt
hearing and decision on whether a judgment debtor's property is exempt from
execution would be valuable in diminishing this risk of an erroneous deprivation of
the debtor's interest.

                                                    3. Government's Interest

¶98 Application of the Mathews test also entails weighing the state's interest in the


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post-judgment execution process, including the fiscal and administrative burdens
which may be imposed on the state by requiring additional procedural safeguards.
Clearly, the state has an interest in enforcing its laws and in preserving the integrity
of the judicial system through enforcement of court judgments. That interest
includes protecting a judgment creditor's ability to collect on an adjudicated debt,
while conserving the limited financial and administrative resources available to it.
The state's interest also must encompass a judgment debtor's entitlement to statutory
exemptions from execution, however, in order to avoid favoring one party's legal
rights over those of the other.

¶99 A requirement that judgment debtors be given notice of a seizure of their
property pursuant to a writ of execution, notice of statutory exemptions from
execution, and notice of procedures by which to claim exemptions from execution
and receive a hearing on those exemption claims would further the state's interest in
protecting the debtor's right to the exemptions without significantly impacting on the
creditor's interest in satisfying the judgment, since the creditor is not entitled to
execution on exempt property. Nor would the state's fiscal and administrative
burdens be significantly increased, since the notice of property seizures, availability
of exemptions and procedures by which to claim exemptions would require only the
printing of new, or revising of old, writ of execution forms.

¶100 It is clear, however, that requiring a prompt hearing on a judgment debtor's
claim that property is exempt from execution affects the state's interests by adding to
both its administrative and fiscal responsibilities. This is especially apparent in the
additional burden placed upon the state's judicial system by requiring prompt
hearings and disposition of the debtor's claims.

                                             4. Balancing the Mathews Factors

¶101 We determined above that additional procedural requirements in the execution
process would be valuable in reducing the risk of an erroneous deprivation of a
judgment debtor's interest in the ability to claim and benefit from statutory
exemptions from execution. The first three requirements are notices to judgment
debtors of the seizure of their property under a writ of execution, either at the time
of the seizure or shortly thereafter; of the availability of exemptions from execution
and where information about those exemptions can be found; and of procedures by
which to claim exemptions and receive a hearing on those claims. Providing this


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information to debtors would protect their property right in claiming statutory
exemptions from execution, yet not preclude the judgment creditor from proceeding
with an execution sale of any nonexempt property. Furthermore, the burden placed
on the state by requiring these notices is slight. It amounts to nothing more than
notifying the judgment debtor that particular property has been seized and including
information about available exemptions from execution and the existence of
procedures by which to claim them in the writ of execution itself. Moreover, the
notice of available exemptions need not include a detailed and exhaustive list of all
exemptions; it need merely provide notice of the existence of exemptions from
execution and how to locate more information about them. See, e.g., Aacen, 944 F.2d
at 698. We conclude that, in weighing the interests of the parties involved in
execution proceedings, the interest of the judgment debtor in claiming property
exemptions substantially outweighs any burden placed on the creditor or the state by
these additional notice requirements.

¶102 The final requirement we determined would be beneficial in reducing the risk
of erroneously depriving a judgment debtor of his or her interest in claiming
exemptions from execution is a prompt hearing and disposition of exemption claims.
Such a requirement clearly benefits both the debtor and the creditor by reducing the
time involved in resolving their respective claims to the property at issue and
furthers the state's interest in the integrity of the judicial system. While the
requirement of a prompt hearing increases the state's administrative and fiscal
burdens, it also advances the state's interests in both protecting the debtor's interest
in effectively claiming exemptions from execution and the creditor's interest in timely
satisfying the judgment. See Kirby, 722 F.Supp. at 523. In light of the judgment
debtor's property interest in the ability to claim exemptions from execution, the
debtor's strong interest in retaining--or recovering--property which is exempt from
execution and the risk that, absent a prompt hearing on the exemption claims, the
debtor will be unnecessarily deprived of exempt property for a substantial period of
time, we conclude that the debtor's interests here outweigh the cost, both fiscally and
administratively, imposed upon the state.

¶103 In summary, we conclude that Montana's post-judgment execution statutes
violate state and federal constitutional guarantees of due process of law because they
do not provide for notice to a judgment debtor of the seizure of the debtor's
property, of the availability of statutory exemptions from execution and where to
locate additional information about them, and of the availability of procedures by

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which to claim exemptions from execution. We further conclude that the statutes are
deficient from a due process standpoint because they do not provide for a prompt
hearing on claimed exemptions. As a result, we hold that the District Court did not
err in determining that Montana's post-judgment execution statutes are
unconstitutional because they do not provide the procedural due process of law
required by Article II, Section 17 of the Montana Constitution and the Fourteenth
Amendment to the United States Constitution.

¶104 3. Are Caraway and Ames entitled to qualified immunity from individual
liability for Dorwart's § 1983 claims?

¶105 The District Court concluded that Caraway and Ames were entitled to qualified
immunity from individual liability for Dorwart's due process claims based on its
determination that the constitutional notice-related rights which were violated were
not clearly established at the time the deputies acted pursuant to the writs of
execution and because the deputies could not reasonably have understood that their
actions violated Dorwart's rights. As a result of its erroneous determination that
Caraway and Ames did not violate Dorwart's search and seizure rights, the District
Court did not address whether they were entitled to qualified immunity for entering
his residence and seizing his property. Dorwart contends that the District Court's
qualified immunity conclusion regarding his due process claim was erroneous and
that the deputies also are not entitled to qualified immunity on his search and seizure
claim. Therefore, we address qualified immunity vis-a-vis both the due process claim
and the search and seizure claim.

¶106 Dorwart's due process claim requested only a declaratory judgment and
permanent injunction. He did not seek monetary damages for that claim. Qualified
immunity is a defense to damages liability; it is not available in actions for
declaratory or injunctive relief. American Fire, Theft and Collision Managers, Inc. v.
Gillespie (9th Cir. 1991), 932 F.2d 816, 818. Therefore, we conclude that the District
Court erred in applying qualified immunity in the context of Dorwart's due process
claim.

¶107 Qualified immunity shields government officials performing discretionary
functions from liability for civil damages when their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. Harlow v. Fitzgerald (1982), 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73


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L.Ed.2d 396, 410. In analyzing whether an official is entitled to qualified immunity, a
court must identify the right violated, determine whether the right was clearly
established at the time of the violation and, if the right was clearly established,
determine whether a reasonable person or official would have known that his or her
conduct violated that right. Hamilton v. Endell (1992), 981 F.2d 1062, 1066; Orozco
v. Day (1997), 281 Mont. 341, 350, 934 P.2d 1009, 1014. In this regard, a plaintiff has
the initial burden of proving that the right was clearly established at the time of the
violation. If--but only if--the plaintiff makes this showing, the burden shifts to the
defendant asserting qualified immunity to prove that his or her conduct was
reasonable even though it violated the law. See Hamilton, 981 F.2d at 1066.

¶108 Dorwart correctly asserts that he had a clearly established constitutional right
to be free from searches and seizures in his home in the absence of a search warrant
or one of the exceptions to the warrant requirement. See U.S. Const. amend. IV; Art.
II, Sec. 11, Mont. Const.; State v. Bullock (1995), 272 Mont. 361, 374, 901 P.2d 61, 70.
This general statement of the right to be free from unreasonable searches and
seizures is too broad, however, for purposes of determining the "clearly established
right" portion of the qualified immunity determination under given circumstances.
Rather, the right which has been violated must be clearly established in a more
particularized, relevant sense. See Aacen, 944 F.2d at 701; Anderson v. Creighton
(1987), 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531. While a plaintiff
need not show that the specific action in question previously has been held unlawful,
it must be demonstrated that, under the particular circumstances of the case and in
light of pre-existing law, the unlawfulness of the action taken was apparent.
Anderson, 483 U.S. at 640. Under the circumstances of this case, Dorwart must
demonstrate that, at the time the deputies entered his home, it was clearly established
that the writs of execution did not authorize their entry in the absence of a warrant
or an established exception to the warrant requirement and that, as a result, they
violated his right to be free from unreasonable searches and seizures.

¶109 In this regard, the specific issue presented and resolved above--whether a writ
of execution, in and of itself, authorizes officers to enter a person's home and seize
property therein--is one of first impression in Montana. In the only other Montana
case addressing the extent of an official's authority when acting pursuant to a writ,
we concluded that a writ of attachment provides an official with "the right to enter a
business place against the will of the occupant, permission having been asked and
refused, and to seize the property therein belonging to the occupant and subject to

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levy." Ramsey, 27 Mont. at 156, 69 P. at 712. Our 1902 decision in Ramsey is the only
Montana case interpreting the scope of authority derived from a writ directing a levy
on property. While Ramsey did not address or resolve whether such an entry would
survive constitutional scrutiny, it certainly appeared to authorize an official acting
pursuant to a writ directing the levy on a person's property to enter and take
possession of the premises in which property subject to execution was located in
order to effectuate the execution without the necessity of a warrant.

¶110 Moreover, while the cases on which we relied in resolving issue one above--
Camara, G.M. Leasing and Hinchey--had been decided prior to Ames' and
Caraway's unlawful entry into Dorwart's home, it would not have been clear that we
would interpret those cases as supporting our conclusion that the deputies' actions
violated Dorwart's constitutional rights. Camara and G.M. Leasing, while providing
guidance in addressing the scope of warrantless administrative searches and seizures,
did not directly address actions taken pursuant to a writ of execution. Indeed, in
neither case did there appear to be any type of judicial authorization for entry into
the complainant's premises. See Camara, 387 U.S. at 526; G.M. Leasing, 429 U.S. at
344-46. Furthermore, while Hinchey directly addressed the issue raised in the
present case, it is merely persuasive authority, not binding precedent.

¶111 Additionally, the Supreme Court previously had expressly stated that an
officer's entry into private premises to levy on property pursuant to a writ of
execution is not subject to Fourth Amendment constraints. See Boyd, 116 U.S. at 624.
While we determined above that Boyd does not control our resolution of the search
and seizure issue before us, the Supreme Court has never expressly overruled that
portion of Boyd and, thus, it remained a potential source of authority on which to
base a conclusion that Ames and Caraway did not violate Dorwart's rights when they
entered his home.

¶112 We conclude that, under the law as it existed at the time Ames and Caraway
entered Dorwart's home and levied upon his property, it was not clearly established
that the writs of execution pursuant to which the deputies acted did not, in and of
themselves, authorize entry into a private residence or that their entry pursuant only
to the writs of execution violated Dorwart's right to be free from unreasonable
searches and seizures. Because Dorwart has not satisfied his initial burden of proving
that the right which the deputies violated was clearly established at the time of the
violation, we need not address whether it was objectively reasonable for Ames and

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Caraway to believe their conduct was lawful. See Hamilton, 981 F.2d at 1066. We
hold that Caraway and Ames are entitled to qualified immunity from individual
liability for Dorwart's § 1983 search and seizure claim.

¶113 4. Did the District Court err in granting summary judgment in favor of
Stillwater County and Brophy, in his capacity as Sheriff, on Dorwart's § 1983 search
and seizure claim?

¶114 As we stated above in addressing the search and seizure issue, § 1983 provides a
cause of action for a person who is deprived of a federally protected right by another
person acting under color of state law. 42 U.S.C. § 1983; Mysse, 279 Mont. at 260,
926 P.2d at 769. Generally, § 1983 claims are brought against public officials in their
individual capacities for their actions taken under color of state law. See Orozco, 281
Mont. at 348, 934 P.2d at 1013. However, municipalities and local governmental
entities also may be sued as "persons" under § 1983. Orozco, 281 Mont. at 347, 934
P.2d at 1012.

¶115 A local governmental entity may be held liable under § 1983 only when it is
shown that the entity itself caused the constitutional violation at issue through the
implementation of a policy or custom of that governmental entity. City of Canton,
Ohio v. Harris (1989), 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412, 424
(citing Monell v. New York City Dept. of Social Services (1978), 436 U.S. 658, 98 S.
Ct. 2018, 56 L.Ed.2d 611). Thus, in order to impose liability on a local governmental
entity under § 1983, a plaintiff must establish

                  "(1) that he possessed a constitutional right of which he was deprived; (2) that
                  the municipality had a policy; (3) that this policy 'amounts to deliberate
                  indifference' to the plaintiff's constitutional right; and (4) that the policy is the
                  'moving force behind the constitutional violation.' "

Buhr on Behalf of Lloyd v. Flathead County (1994), 268 Mont. 223, 239, 886 P.2d 381,
390 (quoting Oviatt By and Through Waugh v. Pearce (9th Cir. 1992), 954 F.2d 1470,
1474). Similarly, a supervisor, such as Brophy here, cannot be held liable under § 1983
unless it is demonstrated that the supervisor's adoption of a plan or policy authorized or
approved of the conduct alleged to have resulted in the constitutional deprivation. See
Bergquist v. County of Cochise (9th Cir. 1986), 806 F.2d 1364, 1369-70.



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¶116 The District Court determined that Dorwart failed to demonstrate that either
Stillwater County or Brophy had adopted policies regarding levy and execution
under a writ of execution other than the "policy" of relying on Montana statutes and,
therefore, that Dorwart had not established the elements set out in Buhr. On that
basis, it concluded that Dorwart's § 1983 claims against Stillwater County--and, by
implication, Brophy--failed as a matter of law. We note that the only § 1983 claim on
which Dorwart has prevailed is his claim that Caraway and Ames violated his Fourth
Amendment rights when they entered his home and seized his property and, as a
result, we review the District Court's conclusion here only as it relates to this search
and seizure claim.

¶117 Dorwart argues that the District Court's conclusion was erroneous because he
established that the actions of Ames and Caraway in entering his residence and
seizing his property were carried out in the usual and customary manner of the
Stillwater County Sheriff's Office. He further asserts that this customary procedure
was the policy which resulted in the deprivation of his constitutional rights and that,
by allowing deputies to proceed under this policy, Brophy and Stillwater County
failed to adequately train and supervise the deputies. According to Dorwart, this
failure to train and supervise amounted to "deliberate indifference" to his
constitutional rights. We disagree.

¶118 A governmental entity's failure to adequately train or supervise its law
enforcement officers may be the basis of § 1983 liability when that failure to train or
supervise amounts to deliberate indifference to the rights of persons with whom the
officers come into contact. Harris, 489 U.S. at 388. However, "deliberate
indifference" in this context occurs only when the need for different action is so
obvious, and the inadequacy of the procedure used is so likely to result in violations
of constitutional rights, that it is reasonable to say the policymakers were
deliberately indifferent to the need to change the policy. Buhr, 268 Mont. at 240, 886
P.2d at 391 (citations omitted); Harris, 489 U.S. at 390. Thus, in order for Dorwart to
satisfy the deliberate indifference element for imposing liability under § 1983, he
must establish that Stillwater County's customary procedures for serving and
executing a writ of execution, as implemented by Ames and Caraway in this case,
obviously were constitutionally inadequate and that Stillwater County and Brophy
were deliberately indifferent to the need to remedy those procedural inadequacies.

¶119 As we discussed above in addressing the issue of qualified immunity, it was not

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clearly established prior to this case that a law enforcement officer's entry into a
person's residence and seizure of property therein pursuant solely to a writ of
execution violates the person's constitutional right to be free from unreasonable
searches and seizures. Montana statutes governing post-judgment execution
procedures do not define the extent of an officer's authority when executing a writ of
execution. Moreover, the only Montana case addressing the extent of implied
authority under a writ held that the officer was authorized to enter premises against
the will of the occupant and levy upon property located therein. See Ramsey, 27
Mont. at 156, 69 P. at 712.

¶120 We conclude that when Ames and Caraway entered Dorwart's residence and
seized his property, the constitutional inadequacy of Stillwater County's customary
procedures for executing a writ of execution was not obvious and, as a result,
Stillwater County and Brophy were not deliberately indifferent to the need to
remedy the inadequacies we have now determined exist. Thus, Dorwart has failed to
establish the necessary "deliberate indifference" element, as required under Buhr,
for imposing § 1983 liability on a governmental entity. We hold, therefore, that the
District Court did not err in granting summary judgment in favor of Stillwater
County and Brophy, in his capacity as Sheriff, on Dorwart's § 1983 search and
seizure claim.

¶121 5. Did the District Court err in granting summary judgment in favor of the
County on Dorwart's conversion and trespass claims and Harry Dorwart's trespass
claim?

¶122 In the amended complaint, Dorwart and his father asserted conversion and
trespass claims against the County. The District Court granted summary judgment
in favor of the County on these claims on the basis that, since it had determined that
the writs of execution authorized Ames and Caraway to enter Dorwart's residence
and levy upon his property therein, Dorwart could not establish the unauthorized
entry element of a trespass claim or the unauthorized seizure of control over
property element of a conversion claim.

¶123 Dorwart argues that, because the District Court erred in determining that the
writs of execution authorized the deputies to enter his residence and seize his
property, the court also erred in determining as a matter of law that the
"unauthorized" elements of his tort claims could not be established. He contends


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that, in the event this Court holds--as we have above--that the writs of execution did
not authorize Ames and Caraway to enter his residence and seize his property, his
trespass and conversion claims are viable and should be reinstated. We agree that,
given our holding on issue one, the basis on which the District Court concluded that
Dorwart and his father could not establish their tort claims is incorrect.

¶124 The County reiterates here, however, the alternative argument it raised in the
District Court with regard to the tort claims. According to the County, Dorwart's
tort claims still fail because the deputies were justified in their execution of writs
which were regular on their face, issued by competent authority and appeared, at the
time, to authorize the deputies' actions. In this regard, the County essentially
contends that Ames and Caraway could not reasonably have understood that their
actions were not authorized by the writs of execution and, therefore, none of the
defendants should be liable for damages. The District Court did not reach this
argument because of its ruling that the writs authorized the deputies' actions.
However, we will "affirm district court decisions which are correct regardless of the
court's reasoning in reaching the decision." Clark, 279 Mont. at 286, 927 P.2d at 999
(citation omitted). Thus, we examine the County's alternative argument.

¶125 We previously have held that actions of law enforcement officers cannot be
tortious when the officers are proceeding on the basis of a reasonable, good faith
understanding of the law and do not act with unreasonable violence or subject
citizens to unusual indignity. Strung v. Anderson (Mont. 1975), 529 P.2d 1380, 1382
(citing Daly v. Pedersen (D. Minn. 1967), 278 F.Supp. 88, 93; Harri v. Isaac (1940),
111 Mont. 152, 107 P.2d 137; Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679;
Meinecke v. McFarland (1949), 122 Mont. 515, 206 P.2d 1012). We further opined
that "it would put too great a burden on law enforcement officers to make them
subject to damages every time they miscalculated in what a court of last resort would
determine constituted an invasion of constitutional rights." Strung, 529 P.2d at 1381.

¶126 We held above that, at the time Ames and Caraway acted pursuant to the writs
of execution, it was not clearly established that their actions violated Dorwart's
constitutional rights. Thus, when the deputies entered Dorwart's home to execute the
writs of execution according to procedures which appeared to be appropriate under
then-existing Montana law, they were acting on a "reasonable, good faith
understanding of the law." See Strung, 529 P.2d at 1382. Furthermore, Dorwart has
not alleged--and the record does not suggest--that the deputies acted with

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unreasonable violence or subjected him to unusual indignity. Strung, 529 P.2d at
1382. We conclude, therefore, that the actions of Ames and Caraway in entering
Dorwart's residence and levying upon property therein were not tortious as a matter
of law.

¶127 We hold that the District Court did not err in granting summary judgment in
favor of the County on the state law tort claims for conversion and trespass asserted
by Dorwart and his father.

¶128 6. Did the District Court err in concluding that Dorwart is not entitled to
attorney's fees?

¶129 The District Court determined that the only statute under which Dorwart
potentially could be awarded attorney's fees was 42 U.S.C. § 1988 (§ 1988), which
provides that a prevailing claimant in an action brought pursuant to § 1983 may be
awarded attorney's fees at the court's discretion. The court concluded that Dorwart
was not entitled to attorney's fees for Dorwart's § 1983 search and seizure claim
based on its erroneous determination that the deputies' actions had not violated
Dorwart's right to be free from unreasonable searches and seizures. While the
District Court erred in denying Dorwart attorney's fees on that basis, we conclude
that its overall determination that Dorwart is not entitled to attorney's fees under §
1988 is correct. We will affirm a district court's decision which is correct regardless
of the court's reason for that decision. Clark, 279 Mont. at 286, 927 P.2d at 999
(citation omitted).

¶130 Dorwart has prevailed on his claim that the County's actions violated his right
to be free from unreasonable searches and seizures under the Montana and United
States Constitutions. He argues that, insofar as his search and seizure claim
established a violation of the Fourth Amendment to the United States Constitution
for purposes of a § 1983 action, he is entitled to attorney's fees pursuant to § 1988.

¶131 It is true that a successful § 1983 claimant may be awarded attorney's fees
under § 1988 regardless of the fact that qualified immunity prevents liability for
monetary damages. See Jackson v. Galan (5th Cir. 1989), 868 F.2d 165, 168 (citing
Pulliam v. Allen (1984), 466 U.S. 522, 543-44, 104 S.Ct. 1970, 1981-82, 80 L.Ed.2d
565, 580). However, there are cases where attorney's fees should be denied because
special circumstances exist which would render an award of attorney's fees unjust.


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Blanchard v. Bergeron (1989), 489 U.S. 87, 89, 109 S.Ct. 939, 942, 103 L.Ed.2d 67, 72
(citing Newman v. Piggie Park Enterprises, Inc. (1968), 390 U.S. 400, 402, 88 S.Ct.
964, 966, 19 L.Ed.2d 1263, 1266). We conclude that such special circumstances exist
in the present case.

¶132 Where a § 1983 claim is derived from the actions of a county and its officers in
enforcing or following state laws and, thereby, effectuating state policy, that county
and its officers should not be subject to liability for attorney's fees resulting from the
claim. See, e.g., Familias Unidas v. Briscoe (5th Cir. 1980), 619 F.2d 391, 406;
Minnesota Council of Dog Clubs v. City of Minneapolis (Minn. Ct. App. 1995), 540 N.
W.2d 903, 906. The actions taken by Ames and Caraway in executing the writs at
issue here were pursuant to Stillwater County's customary procedures for the
execution of a writ issued in conformance with the Montana execution statutes.
Indeed, in levying upon Dorwart's personal property, the deputies were enforcing the
public policy of Montana regarding post-judgment executions as set forth in statutes
duly enacted by the Legislature and they were, therefore, effectuating state policy
rather than a policy promulgated by the County. As a result, we conclude that
awarding attorney's fees against the County for Dorwart's § 1983 search and seizure
claim would be unjust.

¶133 Dorwart also has prevailed on his declaratory judgment action seeking a
declaration that Montana's post-judgment execution statutes are unconstitutional
because they do not provide adequate due process of law, and he asserts that he is
entitled to attorney's fees on that claim. Montana has long followed the rule that
attorney's fees will not be awarded to a prevailing party absent statutory or
contractual authority for such an award. Tanner v. Dream Island, Inc. (1996), 275
Mont. 414, 429, 913 P.2d 641, 650. No statute authorizes an award of attorney's fees
in a declaratory judgment action. McKamey v. State (1994), 268 Mont. 137, 148, 885
P.2d 515, 522. Furthermore, no contract authorizes such an award in this case. Thus,
we conclude that Dorwart is not entitled to attorney's fees for prevailing on his claim
brought under Montana's Uniform Declaratory Judgments Act.

¶134 Dorwart also argues that he is entitled to attorney's fees for prevailing on the
search and seizure and privacy claims he brought under Article II, Sections 10 and
11 of the Montana Constitution. As discussed above, the District Court's
consideration of Dorwart's state constitutional claims terminated prematurely as a
result of its erroneous determination that no state constitutional violations had

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occurred. The same is true with regard to the court's consideration of Dorwart's
attorney's fees arguments regarding those claims. Thus, we conclude that Dorwart's
arguments regarding entitlement to attorney's fees on his claims under Article II,
Sections 10 and 11 of the Montana Constitution must be remanded in conjunction
with our remand of those constitutional claims for further proceedings.

¶135 Affirmed in part, reversed in part and remanded for further proceedings.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

Justice W. William Leaphart, specially concurring.

¶136 I concur in the Court's resolution of Issues 1, 2, 4, 5 and 6. I specially concur as
to Issue Number 3: qualified immunity. As the Court recognizes, in analyzing
whether an official is entitled to qualified immunity, a court must identify the right
violated, determine whether the right was clearly established at the time of the
violation and, if the right was clearly established, determine whether a reasonable
person or official would have known that his or her conduct violated that right.
Hamilton v. Endell (1992), 981 F.2d 1062, 1066; Orozco v. Day (1997), 281 Mont. 341,
350, 934 P.2d 1009, 1014. The Court then goes on to apply qualified immunity based
on its conclusion that, given the state of case law as of the time of the defendants'
entry into Dorwart's home, it was not clearly established that an entry into Dorwart's
home pursuant to a writ of execution violated his right to be free from unreasonable
searches and seizures.

¶137 I, too, would find qualified immunity but for somewhat different reasons.
"Qualified immunity 'gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the law.' " Boreen v.
Christensen (1996), 280 Mont. 378, 383-84, 930 P.2d 67, 70 (quoting Hunter v. Bryant
(1991), 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589, 596 (citation omitted)).
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I would conclude that the right to be free from unreasonable searches and seizures is
(and was) clearly established under Article II, Section 11 of the Montana
Constitution, but that, given the state of the case law as of the date of the entry and
given that the process utilized by Ames and Caraway is the same as has been used by
levying officers in this state since territorial days, a reasonable person or official
would not have known that his or her conduct violated that right.

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler specially concurring in part and dissenting in part.

¶138 I concur with the majority's conclusion that when Caraway and Ames entered
Russell Dorwart's residence without a warrant and without permission, they violated
his right to be free from unreasonable searches and seizures, which is guaranteed by
both the Fourth Amendment to the Federal Constitution, and Article II, Section 11,
of the Montana Constitution. I also concur with the majority's conclusion that
Montana's post-judgment execution statutes deny procedural due process in
violation of the Fourteenth Amendment to the Federal Constitution, and Article II,
Section 17, of the Montana Constitution, and that implementation of those
procedural protections described by the majority is necessary to meet due process
requirements.

¶139 However, I dissent from those parts of the majority opinion which conclude
that Ames and Caraway were entitled to qualified immunity, that the § 1983 claim
against Brophy and Stillwater County was properly dismissed, and that the
plaintiffs' claims for trespass and conversion were properly dismissed.

¶140 The majority opinion begins with a cogent explanation of why Dorwart's right
to be free from unreasonable searches and seizures was clearly violated, and then
repudiates its own analysis in an effort to support its conclusion that in spite of the
violation of Dorwart's constitutional rights, those who violated them have qualified
immunity because the rights are not as evident as originally stated.

¶141 For example, the majority correctly points out that both the Fourth
Amendment to the United States Constitution, and Article II, Section 11, of the
Montana Constitution, guarantee to all people the right to be secure in their homes
against unreasonable searches and seizures, as well as the fact that we have

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repeatedly held for years that entry into a person's home without a warrant is per se
unreasonable, with a few exceptions that are inapplicable here.

¶142 The majority also correctly points out that neither the writs which were issued
in this case, nor the post-judgment execution statutes pursuant to which the writs
were issued, authorize entry into a person's home for the purpose of executing on
property in satisfaction of the creditor's judgment.

¶143 Finally, the majority correctly points out that search and seizure protections
apply in the civil context, as well as the criminal context, that that principle has been
clear since 1967, and that all of the authorities relied on by the defendants and the
State of Montana are distinguishable by their facts.

¶144 In spite of all of these clearly correct conclusions, the majority then holds that

Camara and G.M. Leasing, while providing guidance in addressing the scope of
warrantless administrative searches and seizures, did not directly address actions taken
pursuant to a writ of execution. Indeed, in neither case did there appear to be any type of
judicial authorization for entry into the complainant's premises.

What difference did it make if Camara and G.M. Leasing specifically dealt with writs of
execution? They dealt with the issue of warrantless searches in a civil context and held
that the Constitution was violated when there was no judicial authorization for the search.
The writs in this case were no different because, as pointed out in another part of the
majority opinion, they did not authorize the defendants to search Dorwart's home.

¶145 With the majority's decision, the exception of qualified immunity has now
completely swallowed the rule of liability for violating another person's civil rights in
Montana. If the right to be free from unreasonable searches and seizures, based on
the Fourth Amendment to the United States Constitution, and Article II, Section 11,
of the Montana Constitution, is not a clear right, then nothing is.

¶146 Because the obligation of state agents to stay out of people's homes without a
warrant is so clearly set forth in the Federal and State Constitutions, it was
incumbent upon the State to show some clear decision, statute, or other colorable
authority which would have allowed entry into the plaintiff's home in spite of that
constitutional right on the date in question. None has been offered, and the majority


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cites none. In fact, as previously mentioned, the majority has done a capable job of
distinguishing those authorities which have been cited by the defendants and the
State.

¶147 The majority has imposed an impossible burden on the plaintiffs, which is to
establish that some isolated decision or encyclopedic text could not be construed by
those who wish to violate a person's rights in support of their conduct. In other
words, the plaintiffs have to prove a negative in order to establish that they had a
right which the majority initially concedes is clearly established.

¶148 I also dissent from the majority's conclusion that Brophy, in his capacity as
Sheriff, and Stillwater County were entitled to summary judgment dismissing
Dorwart's § 1983 claim against them. A local governmental entity and a supervisor of
persons acting under color of state law are liable, as noted by the majority, for
violations of constitutional rights when the violation results from that governmental
entity's or that supervisor's policy. In this case, in response to written
interrogatories, each defendant answered that the actions complained of (i.e., the
illegal search of Dorwart's home and seizure of property found therein) were "the
usual and customary manner of performing a seizure on a writ of execution in the
County of Stillwater, Montana." In other words, it was the County's policy, as
implemented by Brophy, the supervisor for Ames and Caraway, to apply writs of
execution as search warrants, in spite of the fact that no statute authorized their use
for that purpose and the plain language on the face of the writ included no such
authorization. I would conclude that this practice and policy of Brophy and
Stillwater County constituted "deliberate indifference" to Dorwarts' constitutional
rights. The majority's decision to affirm the dismissal of Brophy and Stillwater
County is based on the same unsound conclusion on which its qualified immunity
decision is based--i.e., that Dorwart had no clearly established right prior to this case
to be free from warrantless entry into and search of his home. I believe that
conclusion is incorrect, as applied to Brophy and Stillwater County, for the same
reasons it was incorrect when used to justify the majority's qualified immunity
conclusion.

¶149 I also dissent from the majority's conclusion that Dorwarts' claims for trespass
and conversion were properly dismissed because the officers who entered the home
without permission and without a warrant acted on the basis of a good faith
understanding of the law. The majority position might have some merit if the writs,

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on their face, authorized entry into Dorwart's home for the purpose of their
execution, or if the statutes pursuant to which the writs were issued authorized entry.
However, neither is true. Furthermore, to suggest the ninety-six-year-old Ramsey
decision, which did not even discuss the Fourth Amendment, provided cover for the
illegal entry into Dorwart's home, in spite of subsequent U.S. Supreme Court
decisions which clearly require a warrant, is the type of argument we would
normally consider specious if made by a litigant appearing before this Court.

¶150 For all the same reasons set forth previously, I also dissent from the majority's
denial of Dorwart's claim for attorney fees pursuant to 42 U.S.C. § 1988. However, it
bears repeating that Dorwart's § 1983 claim was not based on the County's or its
officers' enforcement of state laws. There were no state laws which authorized the
entry into Dorwart's home without a warrant and without his permission. The
majority acknowledged as much in the first part of its opinion. Therefore, its
rationalization for denying Dorwart's attorney fees is especially inconsistent and
unsound.

¶151 In summary, I concur with the majority's conclusions that Dorwart's rights to
be free from unreasonable searches and seizures, to privacy, and to due process were
violated. I dissent from the majority's conclusion that in spite of flagrant violations of
Dorwart's constitutional rights, no one is accountable pursuant to 42 U.S.C. § 1983
because cover can be found in a nearly 100-year-old decision which had nothing to do
with constitutional issues in the first place. I would reverse the District Court's
judgment which dismissed Dorwarts' claim for damages pursuant to 42 U.S.C. §
1983 and remand for trial of Dorwarts' claims.

/S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing concurring and dissenting opinion.

/S/ WILLIAM E. HUNT, SR.




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