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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Esq. only, please: ...Another question. In a case where

Customer Question

For William B. Esq. only, please: WIlliam...Another question. In a case where research indicates that a particular statute is unconstitutionally drafted, how does one go about filing suit, or perhaps initiating a declaratory judgment action to determine
the validity of that statute? State is Montana where a Declaratory Judgments Act exists, which may or may not be the case in other states. I realize that I may be oversimplifying here, but the goal is to get the appropriate court or jurisdiction to hear the
issue. How would you suggest proceeding? Asked a different way: How do you get a court to make a determination on the constitutionality of a Montana state statute? Christian
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
William...While this question may seem similar to one asked earlier this year, I am trying to re-phrase it to be simply how do determine the constitutionality of a statute? If it is necessary to have two parties and an actual suit, is it possible to sue the state as the other party since it is their statute, the constitutionality of which is the issue? The text of the DJA (declaratory judgments act) seems to allow for such a situation but does not specifically say that there need to be two parties, nor specifically how to proceed, only that there exists the right to have it done. Specifically: MCA (montana code annotated) 27-8-202 "Who may obtain declaratory judgment" Any person whose rights, status, or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute or obtain a declaration of rights, status, or other legal relations thereunder. Ideas?
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Please forgive me if you were not the customer that we discussed this with before (I was not able to see your question history).

If I recall correctly, we discussed this statute in the past and the fact that while MT does have a statute regarding "Declaratory Relief" this statute still requires an actual "Dispute or Controversy" - the courts will not issue what is called an "Advisory Opinion."

In order to have a court opine on the constitutionality of a statute, there must be a dispute over that statute. (Meaning 2 parties with differing interpretations of the statute).

The statute (which, again, if I recall correctly we discussed earlier), is simply a statutory reiteration of the case law rule for declaratory relief. (This is very common as case law is becoming more and more "codified" (where you will see torts, such as fraud, battery, assault, negligence, trespass, etc. - all common law (judge made) torts - placed into statutes).

The statute does not enlarge declaratory relief.

What you are really asking for in having a single party file a case challenging the constitutionality of a statute or rule is for an "Advisory Opinion" as opposed to "declaratory relief" - and the court does not issue advisory opinions.

(Furthermore, and this may further off topic, judicial cannons of interpretation require courts to decide cases by starting with non-constitutional basis or grounds first (so if there is a basis to resolve a dispute on contractual grounds, they will use that, then if there is a basis on statutory, they will use statutory, then constitutional). If there is a conflict between these, the courts will of course address the conflict, but constitutional law interpretation is reserved.)

Customer: replied 1 year ago.
Been ill today and unable to reply until now. Thanks for the information but perhaps I sould amend the question to be one of "What can I do" rather than "What can I not do". So...if it is desired to specifically challenge the constitutionality of a statute, what can one do to achieve that goal?
The code I cited MCA 27-8-202 "Who may obtain declaratory judgment" Any person whose rights, status, or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute or obtain a declaration of rights, status, or other legal relations thereunder certainly makes it sound like a declaratory judgment (as differentiated from a resuest for declaratory relief since they are addressed separately in can ask for a judgment without asking any relief) is the way to achieve this.
From what you say however, I surmise that there need to be two parties and a separate controversy other than simply the constitutional issue being the controversy. So the first question is "who do you sue" to create the second party? Is it possible to sue the state since it is their statute that is the topic of controversy, and the two opinions would be first, that the statute is unconstitutional for the reasons cited, and second, the AG would defend the state and its statutes by countering in favor of constitutionality.
If it is not possible to sue the state, then it is simply a matter for finding someone else, such as a county, or someone else . In terms of a specific case, there actually was one, but my effort to incorporate the constitutionality argument was rebuffed by the supreme court as having been brough up for the first time on appeal and declined on that basis to comment further and thus the issue has not yet been addressed and was simply deferred and still unresolved. If you are interested in a several page advisory letter I wrote to the state attorney general, as is required in such cases, I can send a link to the supreme court docket. Upon reading it, you will have a better idea of why I seek to have the issue addressed and my basic question is simply "how can that goal be achieved".
Thanks for your interest.
Expert:  CalAttorney2 replied 1 year ago.

I cannot review your specific documents on this forum (we are a "general information" forum).

There are 2 ways to address a statute, rule, or regulation that you either disagree with, or believe is inappropriate (including those that you believe are unconstitutional).

  1. Through your legislature:
    1. Contact your state legislator (either the state representative for your district or one that you believe will be sympathetic to your cause).
    2. Generating an initiative (going through the signature gathering process and placing your own initiative to repeal the rule, regulation, or statute on the ballot).
  2. Wait for an actual controversy to arise:
    1. You can continue to conduct yourself contrary to the rule of the statute or rule and wait for enforcement action to be taken (this is of course a risky course of action, and can be expensive - you run the risk of the court finding the statute to be proper (constitutional) and you will bear the cost of defending yourself (attorney's fees, etc.)
    2. You can wait for someone else to run into problems, and try to join their action through what is called a "Joinder" or wait for it to go on appeal and file what is called an "Amicus Brief" in support of their position (this is less risky to you, but it can take longer, and you will be less in control of the facts - there may be other issues the court is considering which will control the outcome and your constitutional issue will not be addressed).