dissenting.
¶38 I dissent.
¶39 The Court’s conclusion that the State’s treatment of T.W. does not violate due process ignores the State’s duty to rectify a wrong that it has created. The State placed T.W., against her will, in MDC. In doing so, it restricted her right to physical liberty, a right fundamental under the Montana Constitution. See Matter of C.H. (1984), 210 Mont. 184, 201, 683 P.2d 931, 940. Having done this, the State cannot simply continue to house T.W. as though she remains a committed patient. It is true that when the State determined that T.W. was no longer “seriously developmentally disabled” she was free to leave MDC. However, her “exit” from MDC was not quite as simple as a released *97prisoner walking out the jailhouse door.
¶40 T.W. continued to live at MDC because she quite literally had nowhere else to go. The State initially confined her knowing that she required round-the-clock care, and knowing that at the end of her time at MDC she, in all likelihood, would still require round-the-clock care. In fact, even before the State first committed T.W., she was living in a community-based group home. Although the record illustrates that her stay at MDC may have improved her lot in life (as she apparently was no longer “seriously developmentally disabled”), it unsurprisingly did not improve it to the point where she could saunter forth and make her way in society. In involuntarily committing T.W. to MDC, the State created a dependency. As a result of this dependency, T.W., although legally at liberty to leave the institution, had no realistic choice but to continue her residence there.
¶41 Having created this dependence on institutional living, the State has a duty to wean T.W. from that state of complete reliance. This duty arises out of our State’s Due Process Clause, a provision of our Constitution that the Court today ignores.
¶42 The federal courts have recognized that although the Due Process Clause of the Fourteenth Amendment generally does not impose a positive duty upon the States to assist their citizens, in certain contexts it and the Eighth Amendment require that states provide some affirmative assistance. See, e.g., Youngberg v. Romeo (1982), 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28, 37; Estelle v. Gamble (1976), 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251, 259-60 (duty to provide adequate medical care to prisoners). Particularly pertinent to this case, Youngberg interpreted the Due Process Clause as requiring that states provide committed individuals with “adequate food, shelter, clothing, and medical care,” as well as “minimally adequate or reasonable training to ensure safety and freedom from undue restraint” while committed. Youngberg, 457 U.S. at 315, 319, 102 S.Ct. at 2457-58, 2460, 73 L.Ed.2d at 36-37, 39. Although the State is correct in arguing that the federal courts have not interpreted Youngberg as mandating community-based services in a situation such as T.W.’s, few have had the opportunity. Although numerous courts have stated that there is no due process right to community placement, these decisions have often been in the context of a currently committed individual, not of an individual who has been released from commitment and who has nowhere else to go. See, e.g., Society for Good Will to Retarded Children v. Cuomo (2nd Cir. 1984), 737 F.2d 1239, 1242, 1249; Phillips v. Thompson (7th Cir. 1983), 715 *98F.2d 365, 368. It appears that only one federal district court has squarely held that a state has no constitutional obligation to a previously involuntarily committed individual once that individual is allowed to leave. K.L. v. Edgar (N.D. Ill. 1996), 941 F.Supp. 706, 716.
¶43 While we have recognized that there is no right to community-based services, per se, under the Montana Constitution, before today we have not ruled on whether the State denies due process to a person in T.W.’s post-commitment situation if it refuses to extend those services to her. See Matter of W.M. (1992), 252 Mont. 225, 229, 828 P.2d 378, 381 (recognizing there is no right to community placement for a patient currently involuntarily committed).1 We have recognized, however, that where a government official establishes a “special relationship” with an individual involving custody over that individual, the official involved may owe the individual a duty of care. See Nelson v. Driscoll, 1999 MT 193, ¶ 35, 295 Mont. 363, ¶ 35, 983 P.2d 972, ¶ 35 (listing relationships, including hospital-patient). We have also recognized such a duty in the due process context under the “state-created danger theory.” Nelson, ¶ 54. In addition, the Restatement (Second) of Torts states that when an actor is required by law to take custody of another individual, the actor is then obligated to protect that individual. See Restatement (Second) of Torts § 314A. This is because in taking the individual into custody the actor “deprive[s] the other of his normal opportunities for protection,” and makes the individual reliant on him. Restatement (Second) of Torts § 314A(4); see also Graham v. Montana State Univ. (1988), 235 Mont. 284, 288, 767 P.2d 301, 303. Recognizing
¶44 There is no dispute that in this case MDC established a custodial “special relationship” with T.W. and deprived her of her “normal opportunities for protection.” The special relationship is on-going and mandates that MDC provide T.W. with affirmative assistance, *99including adequate food and medical care, matters also mandated by the Fourteenth Amendment. See discussion of Youngberg, above. Requiring MDC to provide T.W. with community placement once it decides she should no longer be committed is consonant with these already recognized duties. Having taken T.W. away from community placement and institutionalized her, the State burdened itself with the duty of making T.W. whole.
¶45 Our sister court in New Jersey has addressed this subject in depth. When faced with a similar situation-previously involuntarily committed individuals who are free to go but do not have the means or capacity to do so-it reasoned that the State must continue to provide for them and give them community placement. We quote from its opinion at length:
Although legally entitled to leave the mental hospital, [the patients] are incapable of competently exercising that right due, in part, to the effects that prolonged confinement has had on their own personal capacity to survive in the outside world and on their relationships with friends and family who might provide support and assistance. The State cannot simply pull the rug from under these people when they physically deteriorate to a point where they are no longer dangerous. Although the State does not have the authority to continue the legal commitment of the appellants, it is not required to cast them adrift into the community when the individuals are incapable of survival on their own. In a proper exercise of its parens patriae authority, it may therefore of necessity continue the confinement of such persons on a provisional or conditional basis to protect their essential well-being, pending efforts to foster the placement of these individuals in proper supportive settings outside the institution.
In Re S.L. (N.J. 1983), 462 A.2d 1252, 1258 (concluding emphasis added). Contrary to S.L., there is no suggestion in the case sub judice that the State wanted T.W. to leave MDC before she was assigned a community placement, nor any suggestion that the State sought to continue her confinement. This does not mean, however, that the State fulfilled its constitutional obligations under the reasoning of S.L. The New Jersey court expedited the placement of the S.L. patients, ordering that a patient who has been released but determined to have nowhere to go be granted a hearing within sixty days of that determination, and then every six months thereafter. S.L., 462 A.2d at 1258. At the hearing an inquiry must be made into what placement is best for the patient and the State’s efforts to find a placement. If the *100patient is still residing in the institution after six months, and the State continues to argue that “placement is not possible” then “the court must determine whether the State has undertaken all good faith efforts necessary to place the individual in an appropriate setting outside the mental institution and whether in the interim the State has placed the individual in the least restrictive setting in the institution.” S.L., 462 A.2d at 1258-59.
¶46 It is agreed that, “T.W. was dangerous when she entered MDC and her condition substantially improved while she was in the State’s care.” It would be a mistake, however, to equate “T.W.’s improvement” with being independent. The institutional environment can facilitate improvement and, at the same time, create reliance or dependency. Although T.W. had improved, she was far from independent when she was referred for placement. It was noted that T.W., upon release, was “still needing 24-hour awake staff because of suicide threats and actions, runaways, self-injurious and violent behavior.”
¶47 In relying on the permissive language of Article XII, Section 3, of the Montana Constitution, to conclude that T.W. has not been denied due process of law, the Court ignores the fact that the Legislature has already established a system of rehabilitative services through community care. Further, pursuant to that system, it has been determined that T.W. is eligible for such care. Were the Court to conclude that T.W. has been denied due process, it would not be co-opting or “superseding” the Legislature’s constitutional prerogative to offer the rehabilitative service (the services are in fact offered) or to determine eligibility (T.W. has been deemed eligible). Rather, the issue here is, having established a system of community-care, must the State administer that system consistently with the other provisions of the Constitution? Although the Constitution allows the State the option of not providing a system of community-care at all, the State cannot create a program (as it has) and then administer the community-based care program in such a manner that it violates a patient’s right of privacy, right to equal protection or right to be free from cruel and unusual punishment. Presumably the Court would agree that Article XII, Section 3, although couched in permissive language, does not open the door to discrimination on the basis of religion; that the State must offer the services to members of all religions, consistently with the guarantee of freedom of religion in Article II, Section 5. So too must not it administer the community-based services program consistently with the Due Process Clause of Article II, Section 17, by offering the services in a timely manner? Is the Court arguing that in amending *101Article XII the voters of this State voted to rescind T.W.’s right to due process?
¶48 The Court asserts that T.W. failed to avail herself of administrative remedies and, ultimately, judicial review. The Court’s detailed reading of the Department’s administrative rules does not alter the fact that in pursuing community care T.W. is totally subject to the mercy of the State. Section 53-20-132, MCA, states, “Nothing in this part may be construed as authorizing the placement of and delivery of services to persons with developmental disabilities in community-based services by court order. Placement of persons in community-based services is governed by 53-20-209.” In turn, § 53-20-209, MCA, states that if the State determines “that a person with developmental disabilities is in need of available services and those services can be provided to him, the department may provide services available under this part and Title 53, chapter 20, part 3.” (Emphasis added.) The sheer number of qualifications in this language illustrates that under the State’s statutory scheme, an individual may only obtain community-based services if the State (1) has such services available, and (2) chooses to provide them. These restrictions apply alike to individuals who have been committed and to those who have never been committed. Given the State’s unfettered discretion, the offer of judicial review is a mirage. A court would be hard put to conclude that the Department, no matter what it did or did not do, abused its carte blanche grant of authority.
¶49 Again, due process requires that the State provide an individual in T.W.’s situation (a previously involuntarily committed individual who is free to leave the institution but does not have the means or capacity to do so) with community-based services in a timely manner. However, if the State fails to provide such services, § 53-20-132, MCA, prevents the individual from seeking a court order to obtain them.. The prohibition on court-ordered placement in § 53-20-132, MCA, would not present a problem if the State had a scheme in place where individuals such as T.W. are provided community-based services in a timely manner. However, such a scheme does not exist. Instead, the State, at its own discretion, chooses whether, and when, to give these individuals community-based services. Because the State does not assure placement at any time or in any manner, the statutory bar on court-ordered relief deprives post-commitment individuals such as T.W. of a remedy. Of course, since the Court concludes that the State has done no wrong, it need not be worried of a remedy.
*102¶50 “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.” Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 58, 310 Mont. 123, ¶ 58, 54 P.3d 1, ¶ 58 (Nelson, J., joined by Trieweiler, J., Leaphart, J., and Cotter, J., specially concurring). Article II, Section 16, of the Montana Constitution mandates that, “Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character.” Section 53-20-132, MCA, violates this fundamental right. It denies individuals in T. W.’s position the ability to redress the State’s failure to timely provide them with community-based services.
¶51 I would reverse the judgment of the District Court.
JUSTICE NELSON joins the dissent of JUSTICE LEAPHART.Recognizing that T.W. has a constitutional right to timely community-based services would not overturn our holding in Matter of W.M. Any claim T.W. has to such services, when such services are already provided, is mandated by the Due Process Clause and is a narrow exception to the language of Matter of W.M. As the Court argues, developmental^ disabled individuals who have not been released from commitment do not have a constitutional right to community-based services. Article XII, Section 3(3), Montana Constitution states, “The legislature may provide ... social and rehabilitative services for those who, by reason of... infirmities ... are determined by the legislature to be in need.” (Emphasis added.) In Matter of W.M. the State had not created a system of community-based services for individuals such as W.M. (those currently involuntarily committed). Here, the State has created a system of community-based services for those who have been released from involuntary commitment, but the timing of those services raises due process concerns.