Montana Constitution

Montana Constitution

II.10. Right of Privacy

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.

History

Sources

Drafting

Delegate Proposal No. 33 (Campbell): The right of individual dignity, privacy, and free expression being essential to the well-being of a free society, the state shall not infringe upon these rights without the showing of a compelling state interest.

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

The committee thought it was important to ensure that only a compelling state interest could infringe upon the right of privacy. The committee unanimously adopted Section 10.

Adoption: Delegate Campbell asked for a vote to amend Section 10 to include "the right of individual privacy." Delegate Campbell stated, "Wade Dahood . . . hit the nail on the head when he said: 'As government functions and controls expand, it is necessary to expand the rights of the individual.' The right of privacy deserves specific protection." Mont. Const. Convention, Comm. Reps. and Transcrs., 1681 (Mont. Legis. 1972). The delegates also discussed that a corporation would not be considered a individual under the right of privacy. Delegate Harper moved to amend Section 10 and strike out the words "without the showing of a compelling state interest." Mont. Const. Convention, Comm. Reps. and Transcrs., 1682 (Mont. Legis. 1972). Delegate Dahood supported this amendment and stated that the wording "without the showing of a compelling state interest" did not serve a purpose since the right has been defined by case law. Mont. Const. Convention, Comm. Reps. and Transcrs., 1682 (Mont. Legis. 1972). The delegates adopted Section 10 on March 7, 1972.

On March 9, 1972 the delegates asked to reconsider Section 10. Delegate Ask was concerned that the court would have no guidance for interpreting this section unless the words "without the showing of a compelling state interest" were added. Mont. Const. Convention, Comm. Reps. and Transcrs., 1850 (Mont. Legis. 1972). Delegate Campbell opposed the motion for reconsideration. Delegate Campbell thought that the right was established by case law and adding the words "without the showing of a compelling state interest" would not further the Section's interpretation. Mont. Const. Convention, Comm. Reps. and Transcrs., 1851 (Mont. Legis. 1972). Delegate Asks motion to reconsider passed with 56 votes for and 33 votes against. Delegate Ask moved to adopt the Section, Delegate Dahood and the Bill of Rights Committee had no objection. The Section was adopted.

Ratification

1972 Official Text with Explanation: New provision prohibiting any invasion of privacy unless the good of the state makes it necessary.


Documentary History of the Ratification of the Montana Constitution; A Collection of Newsprint and Historical Texts


The Brown Collection is a single large file made from pages provided by former Secretary of State and Senate President Bob Brown. It collects newspaper clippings reporting on the Constitutional Convention while it was in session. Dates on this material are not always available. The file has been treated to make it word-searchable, but the quality of old newsprint varies, so it cannot be guaranteed that every use of a particular word will be identified in a search.The following explanatory text comes from the William J. Jameson Law Library at the University of Montana School of Law. http://www.umt.edu/law/library/default.php

A sample headline from the Brown Collection reads: "Convention May Give Individuals More Rights." The author, Dennis E. Curran, reported that "[p]rivacy is a right not stated in the constitution now. It could be handled with a general statement, but several specific suggestions are under study including restrictions which would require a search warrant for electronic eavesdropping. One of the most far-reaching proposals in the area of privacy is delegate Bob Campbell's proposed right to 'individual dignity, privacy and free expression.' The state would be prohibited from infringing on those rights unless it could show 'compelling state interest.'"

Another headline reads: "Con-Con Comments By the Delegates from District 23." George James reported that "[t]wo new proposals would be added to the constitution to combat [the growing fear of bureaucracy and the growing intrusion of government in our lives]. One on the right to privacy would limit electronic surveillance or bugging, while the other would give the citizen the right to know and is aimed at the secrecy in the operations of government at all levels."

The Daily Clipping Sheet from February 9, 1972 headline reads: Individual Rights Prime Concern of Delegates. Gary Langley reported on Delegate Campbell's "most sweeping proposal." The proposal "is one that would grant individuals the rights to dignity, privacy and freedom of expression. 'We don't have these rights stated specifically now and this is the essence of a free society," he said. While the freedom of expression and privacy provisions would protect individuals against action by the state, the dignity clause would be aimed primarily at an individual's right to privacy. Welfare recipients would not, for example, be required to answer 'embarrassing' personal questions when applying for welfare. While Campbell is enthusiastic about the proposal, he does not see it skipping unblemished through the gauntlet of skeptical convention delegates and voters. 'This is a provision I think will generate a great deal of discussion,' he said. The article further reported that "Campbell has an eye on other areas also: He has drafted a proposal protecting the right of privacy during searches and seizures. 'It just recognizes the need today and the concern people have for privacy,' he said."


The Campbell Collection contains material donated by convention delegate Bob Campbell. It includes a very important summary of the Constitution by Prof. Richard Roeder (a leading advocate), which was inserted into many Montana newspapers. It also includes a pamphlet by Billings attorney Gerald Neely (who was a UPI stringer during the convention), and material opposing ratification produced by a group called Citizens for Constitutional Government. The word-searchability of this material varies.The following explanatory text comes from the William J. Jameson Law Library at the University of Montana School of Law. http://www.umt.edu/law/library/default.php

This collection contains the 1972 Montana Constitution Newspaper Supplement. The supplement provides an "Article by Article Analysis" and states:

"Section 10 establishes a right of privacy. The courts in Montana have recognized the existence of a right of privacy. But at a time when opportunities for invasion of privacy are increasing in number and sophistication, section 10 emphasizes that this right is essential for the preservation of a free society."


The Montana Newspapers from Mansfield Library collection includes all articles that we could locate in five major newspapers on the Constitution appearing from March 22 - June 6, 1972. The newspapers are the Billings Gazette, the Great Falls Tribune, the Helena Independent-Record, the Missoulian, and the Montana Standard (Butte). They were reproduced from microfilm located at the Mansfield Library at The University of Montana. Because the quality of the microfilm varies widely, so does the quality of the PDF files into which they were converted. Files that we managed to render at least partly word-searchable have the letters “ocr” (optical character recognition) in the file name. The exact dates of particular articles are not always recoverable. The file name “Great Falls Tribune 0372 ocr” means that the file covers the Great Falls Tribune for March, 1972, and is, at least in part, word-searchable. A file name “Billings Gazette 0515-2372” means that the file covers the Billings Gazette for May 15-23, 1972, and is not word-searchable.The following explanatory text comes from the William J. Jameson Law Library at the University of Montana School of Law. http://www.umt.edu/law/library/default.php

The Billings Gazette April 1-12, 1972 hailed "[t]he 'Declaration of Rights' rings with progressive principals, declaring the citizens' right to privacy, to a clean environment, to equality regardless of age or race or sex. The legislature is made both more powerful and more responsible to the people. Moreover, it will not be more representative."


The Neely Collection was made available by retired Billings attorney Gerald Neely, the author of a pamphlet on the Constitution available in the Campbell Collection. It contains (1) the two issues of a newsletter edited by Mr. Neely during the constitutional convention that are most relevant to the meaning of the Constitution, (2) the Gallatin Voice, a pamphlet discussing the Constitution, (3) a PDF file containing articles on the Constitution published in smaller papers, not represented in the "MT Newspapers Mansfield" Collection, and (4) an issue of the Montana Public Affairs Report containing an analysis of the election by Professor Thomas Payne and Ms. Elizabeth Eastman. These documents are generally word-searchable.The following explanatory text comes from the William J. Jameson Law Library at the University of Montana School of Law. http://www.umt.edu/law/library/default.php

The Con Con Newsletter of March 10, 1972 provided an analysis of the Bill of Rights provisions. Under Section 10 it posed several questions to the reader, stating: "The Press Association has likewise attacked this provision in conjunction with the right of knowing provision. The provision must be read in conjunction with the next proposal, section 11, which is merely a restatement of the current search and seizure provision in Montana, with 'invasions of privacy' added. Under these two provisions, is it the intent of the committee to require a court order by officials of government before they can listen in or record a telephone conversation? If an individual eavesdrops, does the provision, or both of them, create civil liability? Each of these may or may not be desireable (sic), but in any event, if such is the intent of the committee it is not apparent from the language. How does the 'probable cause' that is required in provision 11 differ from the 'compelling state interest' in provision 10?"


The material in the Roeder Collection at MSU was provided by the library archives at Montana State University. It is called the Roeder collection, because it is all from the donated papers of Richard Roeder, an MSU professor who served as a convention delegate and leading advocate for the Constitution during the ratification campaign. This Collection includes speeches, correspondence, and published articles. It also includes Professor Roeder’s critical, and sometimes angry, annotations of the Neely pamphlet. (Neely was a former student of Roeder’s, but their views were on different parts of the political spectrum.) This material is generally word-searchable.The following explanatory text comes from the William J. Jameson Law Library at the University of Montana School of Law. http://www.umt.edu/law/library/default.php

Interpretation

Commentary