Al Smith Commentary: “Constitutional Values: Accountability and Responsibility”

It is 2013, and, since it is an odd year, the beginning of another Montana legislative session. At times, I think that the framers purposely set up our system of the legislature meeting in odd years, to remind us that our democracy is an odd assortment of characters, issues and dramas.
Part of my job is to pay close attention to what’s happening in the legislature, alerting members of my association to legislative developments, and lobbying specific bills that harm or help Montanan’s right of access to the civil justice system. The trial lawyers’ basic lobbying position flows from our support of the basic principle that individuals, business entities and governmental entities should be accountable and responsible for their actions or omissions that cause harm to another. This principle is set forth in Article II, Section 16 of our Montana Constitution which provides that “Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property or character.” This mirrors the 7th Amendment to the U.S. Constitution that protects our right to a trial by jury in civil matters.
I always thought that accountability and responsibility were values without a political leaning, being neither liberal nor conservative. Over the past few decades, however, it seems that those labeled as political conservatives have co-opted accountability and responsibility, touting them as solely politically conservative values.
I reject this political characterization, but would agree that accountability and responsibility are conservative values, conservative values that should be supported by both political liberals and political conservatives. Over the years, however, political conservatives have only selectively supported the conservative values of accountability and responsibility when it comes to the civil justice system.
Political conservatives are philosophically dedicated to individual freedom, limited government, and the protection of individual rights. The civil justice system is the embodiment of the ideals of individual rights and personal freedom.
Of all the institutions of government, only one – the judicial system – is dedicated to the individual. In court, every person is not only the equal of their neighbor, but also the equal of the largest corporation, and even the government itself. The role of the courts – and the lawyers who are absolutely necessary for their proper function – is simply to protect our legal rights – including the rights of liberals, conservatives, Republicans, Democrats, Tea Partiers, consumers and businesses.
There is a cost to protecting our individual rights. That cost is making sure that the legal rights of each of our fellow citizens is also protected, without compromise, without exception. Like an alcoholic who takes that first drink, when we start compromising the legal rights of our “less worthy” neighbors, there may be no end until finally our own rights are swept away as well.
Sometimes political conservatives point to a large verdict against a business, as if this demonstrates some problem with the system. But don’t conservatives believe that with freedom necessarily comes responsibility and accountability? If someone violates your rights shouldn’t they be held accountable, whether they are an individual, the government or a business?
And what about those awards of compensatory damages? When the government takes a person’s property to build a power line through it conservatives expect to be compensated – and compensated in full, not just in part. So what’s the difference when someone costs you an arm or a leg by failing to order appropriate medical tests? Isn’t an award of compensation in that instance just as much to compensate for your loss of property as when you lose your land or your car is wrecked?

Conservatives agree with James Madison and John Locke that our first right of property is in ourselves, and includes the safety and liberty of our person. When someone takes it from us in violation of our legal rights, compensation for what we have lost is the least that can be expected. And, if we are robbed of that which most of us take for granted, a healthy pain-free life, the same principle applies, and probably more so. It is simply unjust to shield the wrongdoer from the consequences of his misconduct at our expense.
Unfortunately, some political conservatives in the Montana legislature have already requested a number of bills that impact your access to the civil justice system. When you hear of bills that limit the liability of, or provide immunity to, government and businesses for their actions, I hope you will call your legislators and ask that they stand up for conservative values. Ask them to assure that all Montanans are able to seek accountability and responsibility through our civil justice system. Tell them that it is just plain wrong to provide special protections so that some do not have to be accountable and responsible for the harm they cause.
The protection of individual rights, by assuring that accountability and responsibility can be obtained in the civil justice system, is a conservative value that we can all support: the public, businesses, trial lawyers, the judiciary, and legislators – be they Democrats, Republicans, Tea Partiers or Greens. But protection of our constitutional rights comes with a price. That price is making sure everyone’s rights to a jury trial are protected.
Al Smith writes for the Montana Trial Lawyers Association.

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