dissenting.
*221¶53 I respectfully dissent from the opinions of both the Court and Justice Nelson on the threshold question of whether the constitutional issue on which the Court resolves the present case is properly before us. As a result, I would not reach in this case the substantive issue of whether § 20-6-320(6), MCA (1993), is an unconstitutional delegation of legislative power. I would affirm the District Courts on the issues properly before us.
¶54 With regard to whether the constitutional issue raised by LDHSD is properly before us, our general rule requires us to decline to consider issues raised for the first time on appeal. See Day, 280 Mont. 273, 929 P.2d 864. The LDHSD having conceded that it is raising this constitutional issue for the first time on appeal to this Court, I would decline to address it.
¶55 With regard to the Court’s notion that the procedural posture of this case is “unique,” I disagree. It goes without saying that this Court receives many appeals from judicial review by district courts of final agency decisions.
¶56 Nor do I agree with the Court that the earliest the LDHSD could have raised the constitutional issue was in the District Courts and, consequently, the issue would have been raised “for the first time on appeal” there, thus rendering it somehow permissible for this Court to resolve the issue here and now. Under §§ 20-6-320 and 20-3-107, MCA (1993), a county superintendent’s decision is “appealable” to the state superintendent of public instruction. The state superintendent’s decision is the final administrative order. See § 20-3-107(2), MCA (1993). In its appeals to the state superintendent, LDHSD raised at least one constitutional issue and the state superintendent properly left that issue for resolution by the courts. The District Courts, noting that the constitutional issue had been raised, addressed it and, as a result, that issue was properly preserved for consideration by this Court. LDHSD could have done the same with its “unconstitutional delegation” issue; it did not do so.
¶57 Moreover, the remedy for one purportedly aggrieved by a final agency decision is “judicial review,” pursuant to the Montana Administrative Procedure Act (Act), not “appeal,” as stated by the Court. See § 2-4-702(l)(a), MCA (1993). In that regard, § 2-4-702(1)0»), MCA (1993), of the Act expressly provides that a party proceeding before an agency under the terms of a particular statute may not be precluded from questioning the validity of that statute on judicial review. Thus, the Act specifically allows a challenge to a statute on “judicial review,” *222even if not raised prior to that stage. LDHSD clearly was entitled, by law, to raise the “unconstitutional delegation” argument on judicial review in the District Courts and such an action would not constitute raising an issue for the first time on “appeal.” LDHSD had a second opportunity to raise this issue and failed to do so. I would not give it a third bite of the apple in this Court at this time in derogation of our general rule that we will not address an issue raised for the first time here.
¶58 Finally, the Court’s broad language suggesting that the general no-review rule contains an exception when “substantial rights of the litigants are at stake” is set forth without any legal basis. Fortunately, Justice Nelson’s special concurrence fills this hole in the Court’s opinion by providing decisional authority. It also, however, clarifies that the “substantial rights” exception to the no-review rule is interpreted narrowly and is discretionary with this Court. I would focus on the rationale behind the exception, which relates to avoiding future litigation on a point of law, rather than merely the “affects substantial rights” language. See N.B., 190 Mont. at 323, 620 P.2d at 1231. As Justice Nelson points out, other cases pending before us properly preserved the issue regarding the constitutionality of § 20-6-320(6), MCA (1993). We could, and should, address the issue in one of those cases. Under the circumstances of these cases, the underlying rationale for the exception to the no-review rule-avoiding future litigation-simply does not support discretionary application of the exception here, particularly given another important principle applied by this Court, that we avoid constitutional issues whenever possible. See, e.g., State v. Still (1995), 273 Mont. 261, 902 P.2d 546.
¶59 Furthermore, the no-review exception raises serious concerns of its own. Presumably, “substantial rights” always can be argued in the context of a constitutional issue, given lawyers’ creativity in crafting arguments. Consequently, the exception’s application may well overwhelm and engulf the no-review rule, which is premised on the unfairness to district courts which results when this Court considers an issue not previously raised, and reverses-as the Court does here-a district court on an issue never presented to that court for resolution.
¶60 The dispositive questions properly before us, at the bottom line, are (1) whether the county superintendents’ decisions to grant a transfer of territory were arbitrary or capricious; (2) whether the state superintendent applied the proper standard on appeal of those decisions; and (3) whether the District Courts erred in concluding *223that the territory transfers did not constitute racial discrimination in violation of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. I would resolve all three questions in the negative and affirm the District Courts. I dissent from the Court’s failure to do so.