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Kloss v Edward D. Jones -- MT Supreme Court

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[*P56]  The second fundamental right at issue in the case at bar is the right of access to the courts.

 [*P57]  Article II, Section 16 of Montana's Constitution guarantees that "courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character." In my view, this right is as much a fundamental right as is any other Article II right. This is so not only because the right of access to the courts is included within the Constitution's Declaration of Rights, but also, and just as importantly, without the right of access to the courts, other Article II rights would have little protection from infringement and, thus, little meaning. See,   Butte Community Union, 219 Mont. at 430, 712 P.2d at 1311-13; Wadsworth, 275 Mont. at 299, 911 P.2d at 1172.

 [*P58]  Constitutional rights that cannot be enforced are illusory. It is as  [**141]  if those rights cease to exist as legal rights. Montanans' fundamental rights to a jury trial, to due process and to equal protection, among others, are rendered meaningless absent the courts being able to enforce these rights. Purely and simply, access to the courts guarantees that other Article II rights are something more than mere dreams and aspirations. Access to the courts gives real existence to other fundamental rights. And, that makes access to the courts a fundamental right also, for without this right other rights have no meaning.

 [*P59]  In this conclusion, I acknowledge that we have explicitly and implicitly held to the contrary. See,   Meech v. Hillhaven West Inc. (1989), 238 Mont 21, 776 P.2d 488; Peterson v. Great Falls School District (1989), 237 Mont. 376, 773 P.2d 316;  Miller v. Fallon County (1989), 240 Mont. 241, 783 P.2d 419; Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145; Linder v. Smith (1981), 193 Mont. 20, 629 P.2d 1187; Merchants Ass'n v. Conger (1979), 185 Mont. 552, 606 P.2d 125. Notwithstanding, I do not see how these decisions can be squared with, much less continue to exist beside, this Court's jurisprudence holding that other Article II rights are fundamental rights.

 [*P60]  This Court has stated repeatedly that a right is fundamental under Montana's Constitution if the right is either found in the Declaration of Rights or is a right without which other constitutionally guaranteed rights would have little meaning.  State v. Bird, 2002 MT 2, 308 MT 2, P25, 308 Mont. 75, P25, 43 P.3d 266, P25 (right to be present for all court proceedings); In re Mental Health of K.G.F., 2001 MT 140, P30, 306 Mont. 1, P30, 29 P.3d 485, P30 (right to effective assistance of counsel for involuntary commitment proceedings); Armstrong v. State, 1999 MT 261, P34, 296 Mont. 361, P34, 989 P.2d 364, P34 (right to privacy); and MEIC v. Dept. of Environmental Quality, 1999 MT 248, P56, 296 Mont. 207, P56, 988 P.2d 1236, P56 (right to a clean and healthful environment);  State v. Clark, 1998 MT 221, P22, 290 Mont. 479, P22, 964 P.2d 766, P22 (right to confront and examine accusers); State v. Weaver, 1998 MT 167, P26, 290 Mont. 58, P26, 964 P.2d 713, P26 (right to a unanimous verdict); Wadsworth, 275 Mont. at 299, 911 P.2d at 1172 (right to pursue employment); Matter of C.H. (1984), 210 Mont. 184, 201, 683 P.2d 931, 940 (right to physical liberty). We could never have enforced the fundamental rights litigated in these and in other cases where fundamental rights were at issue had access to the courts been denied in the first instance. Indeed, without access to the courts, these other fundamental rights would have had no real  [**142]  existence; they would have been merely aspirations without substance.

 [*P61]  The instant case and others we have considered-- Chor, 261 Mont. 143, 862 P.2d 26; Casarotto, 268 Mont. 369, 886 P.2d 931;   Keystone, Inc. v. Triad Systems Corporation,