Barrett v. State

04/26/2024

DA 22-0586
Case Number: DA 22-0586

IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 86

STEVE BARRETT, ROBERT KNIGHT;
MONTANA FEDERATION OF PUBLIC
EMPLOYEES; DR. LAWRENCE PETTIT;
MONTANA UNIVERSITY SYSTEM FACULTY
ASSOCIATION REPRESENTATIVES;
FACULTY SENATE OF MONTANA STATE
UNIVERSITY, DR. JOY C. HONEA;
DR. ANNJEANETTE BELCOURT; DR. FRANKE
WILMER; MONTANA PUBLIC INTEREST
RESEARCH GROUP; ASSOCIATED STUDENTS
OF MONTANA STATE UNIVERSITY; ASHLEY
PHELAN; JOSEPH KNAPPENBERGER; and
MAE NAN ELLINGSON,

Plaintiffs, Appellees,
and Cross-Appellants.

v.

STATE OF MONTANA, GREG GIANFORTE;
and AUSTIN KNUDSEN,

Defendants, Appellants,
and Cross-Appellees.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-21-581B
Honorable Rienne H. McElyea, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Austin Knudsen, Montana Attorney General, Michael D. Russell, Assistant
Attorney General, Helena, Montana

Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC,
Billings, Montana
 For Appellees:

James H. Goetz, Jeffrey J. Tierney, Goetz, Geddes & Bardner, P.C.,
Bozeman, Montana

Raphael Graybill, Graybill Law Firm, P.C., Great Falls, Montana

For Amici Five Female Athletes:

Justin M. Oliveira, Attorney at Law, Billings, Montana

Cody S. Barnett, Alliance Defending Freedom, Lansdowne, Virginia

Submitted on Briefs: August 16, 2023

Decided: April 26, 2024

Filed:

V5-- 6 A-- 4f
__________________________________________
Clerk

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Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 The Plaintiffs in this case—made up of former members of the Montana Board of

Regents, the Montana Federation of Public Employees (MFPE), a former commissioner of

higher education, Montana University System (MUS) faculty organizations, MUS faculty

members, MUS student groups, MUS students, and a delegate to the 1972 Montana

Constitutional Convention—brought constitutional challenges to four bills passed by the

Montana Legislature during the 2021 legislative session. The Plaintiffs filed suit against

the State of Montana, Governor Greg Gianforte, and Attorney General Austin Knudsen

(collectively, the State) in the Eighteenth Judicial District Court, Gallatin County, seeking

a declaration that HB 349, HB 112, HB 102, and §§ 2 and 21 of SB 319, as well as a

conditional appropriation found in HB 2 relating to HB 102, were unconstitutional. During

the pendency of the present case, both HB 102 and § 21 (and § 22) of SB 319 were found

to be unconstitutional in separate cases brought by other plaintiffs in the First Judicial

District Court, Lewis and Clark County. The State did not appeal the determination that

§ 21 (and § 22) of SB 319 was unconstitutional, but did appeal the First Judicial District

Court’s ruling on HB 102. That court’s ruling declaring HB 102 unconstitutional was

upheld by this Court in Bd. of Regents of Higher Educ. of Mont. v. State, 2022 MT 128,

409 Mont. 96, 512 P.3d 748. With the present case narrowed to the Plaintiffs’ challenges

to HB 349, HB 112, and § 2 of SB 319, the parties filed cross-motions for summary

judgment. The District Court granted the Plaintiffs’ motion for summary judgment, denied

the State’s cross-motion for summary judgment, declared HB 349, HB 112, and § 2 of

SB 319 unconstitutional, and denied the Plaintiffs’ request for attorney fees in its

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September 14, 2022 Order on Cross-Motions for Summary Judgment. Both parties appeal

from this order.

¶2 The State raises two issues on appeal, which we restate as follows:

1. Whether Plaintiffs have standing to challenge the constitutionality of HB 349
(2021), HB 112 (2021), and SB 319 (2021).

2. Whether HB 112 infringes on the Board of Regents’ authority under Article X,
§ 9 of the Montana Constitution.

In addition, the Plaintiffs have cross-appealed the portion of the District Court’s decision

denying them attorney fees. We restate the Plaintiffs’ issue on cross-appeal as follows:

3. Whether the District Court erred by denying the prevailing plaintiffs their
attorney fees under the private attorney general doctrine.

¶3 Via majority, we affirm the District Court’s determinations that the Plaintiffs have

standing to bring their claims and that the challenged bills are unconstitutional. With

regard to the cross-appeal issue 3 set forth above, we do not reach a majority opinion with

Justice Gustafson, joined by Justice McKinnon, disagreeing with the District Court’s

decision to not award attorney fees; Chief Justice McGrath, joined by Justice Baker,

agreeing with the District Court’s decision to not award attorney fees, and Justice Shea

separately agreeing with the District Court’s decision to not award attorney fees. Justices

Rice and Sandefur take no position on the issue as they would find Plaintiffs had no

standing to bring suit. Given the lack of majority on this issue, the District Court’s denial

of the Plaintiffs’ request for attorney fees under the private attorney general doctrine

remains undisturbed.

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 FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 1972, following a constitutional convention, Montana adopted and ratified a new

Constitution. Since that time, the Montana Constitution has explicitly provided that the

“government and control of the Montana university system is vested in a board of regents

of higher education which shall have full power, responsibility, and authority to supervise,

coordinate, manage and control the Montana university system and shall supervise and

coordinate other public educational institutions assigned by law.” Mont. Const. art. X,

§ 9(2)(a). During the 2021 legislative session, the Montana Legislature passed the three

bills at issue in this case, each of which directly concerns the activities of students in the

Montana university system.

¶5 HB 349, codified at §§ 20-25-518 and -519, MCA, regulates student organizations

and the speech of students on campus. The bill purported to limit the abilities of colleges

and universities to discipline students for certain kinds of speech and dictate whether

certain student organizations are entitled to university recognition, registration, use of

university facilities, use of “channels of communication,” and funding.

¶6 HB 112, codified at §§ 20-7-1305, -1306, and -1307, MCA, is styled as the “Save

Women’s Sports Act” and requires sports teams to be expressly designated as either male,

female, or coed, based on the biological sex of the participants, bars “students of the male

sex” from participating in women’s sports, and allows a cause of action against a school

for violating these requirements. In effect, the functional result of the bill would prohibit

transgender women from participating in interscholastic athletics.

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¶7 SB 319 purported to revise campaign finance laws, regulate the funding of certain

student organizations, regulate political activity on campus, and modify judicial recusal

procedures.1 Relevant to the present case, § 2 of SB 319, codified at § 20-25-452, MCA,

provided that student organizations functioning as political committees which were

“regularly active” may be “funded in the same manner as other student organizations,

except that if the organization is funded by an additional optional student fee, the fee must

be an opt-in fee,” essentially singling out certain types of student organizations for

disparate funding treatment.

¶8 On June 3, 2021, the Plaintiffs filed their Complaint in the District Court, alleging

each of the bills was unconstitutional because they “arrogate[d] to the Legislature powers

that are reserved to the Montana Board of Regents.” The Plaintiffs sought a declaratory

judgment declaring the bills unconstitutional and unenforceable, injunctive relief, and an

award of attorney fees and costs under the Montana private attorney general doctrine. On

July 16, 2021, the State moved to dismiss, asserting the Plaintiffs lacked standing to

challenge the bills at issue, were improperly seeking an advisory opinion, and failed to state

a claim upon which relief could be granted. After the parties briefed the motion to dismiss,

the District Court held a hearing on December 15, 2021. At the close of that hearing, the

court orally denied the State’s motion regarding failure to state a claim, but reserved ruling

1
Sections 21 and 22 of SB 319, purporting to regulate political activity on campus and modify
judicial recusal procedures, were found unconstitutional by Judge Menahan in Forward Mont. v.
State, No. ADV-2021-611 (Mont. First Jud. Dist. filed June 1, 2021). Judge Menahan found §§ 21
and 22 of SB 319 violated both the single-subject rule and the command that a bill not be amended
in such a manner so as to change its original purpose of the Montana Constitution and permanently
enjoined their enforcement. The State did not appeal from this decision.
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on the standing issue. On March 4, 2022, the District Court issued its Order Denying

State’s Motion to Dismiss. In its order, the District Court determined the Plaintiffs had

both constitutional and prudential standing to challenge each of the bills at issue in this

case. Regarding HB 349, the court noted the Plaintiffs included both individual students

and student groups which stood to be injured as HB 349 may have the effect of excusing

discriminatory conduct and depriving students of the policies and procedures which define

their rights and govern their conduct as students. As to HB 112, the court noted the

Plaintiffs included representative groups whose members have suffered or will suffer harm

due to HB 112 interfering with administration of university athletic programs and

compliance with intercollegiate rules and regulations and faced the “reasonably concrete

and foreseeable threatened injury” of exclusion from participation in athletics. Regarding

§ 2 of SB 319, the court noted Plaintiff Montana Public Interest Research Group

(MontPIRG) conducts the type of activities targeted by the bill and the funding of its

operations was funded by an opt-out fee, which the bill prohibits. As to all challenged

bills, the court found the faculty and student organizations sufficiently alleged an injury

relating to their engagement with the Board of Regents and that, if the challenged

legislation unconstitutionally interfered with the Board’s constitutional independence, the

Plaintiffs’ role in “engaging with the Board to establish policies” would be disrupted.

¶9 Following the denial of its motion to dismiss, the State filed an Answer to the

Plaintiffs’ Complaint on March 21, 2022. On May 27, the Plaintiffs filed a motion for

summary judgment, asserting the challenged bills violated the Board of Regents’

constitutional authority under Mont. Const. art. X, § 9 and that the Plaintiffs should be

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awarded their attorney fees pursuant to the private attorney general doctrine. The State

filed a cross-motion for summary judgment on July 1, again asserting the Plaintiffs lacked

standing to bring their claims, and further asserting that, on their merits, none of HB 349,

HB 112, or § 2 of SB 319, infringed on the Board of Regents’ authority. The State also

contended the Plaintiffs were not entitled to attorney fees because the State’s defense of

the challenged laws was neither frivolous nor in bad faith. After the parties fully briefed

the competing motions, the District Court held oral argument on September 7. On

September 14, the District Court issued its Order on Cross-Motions for Summary

Judgment. In this order, the court reaffirmed its previous decision that the Plaintiffs had

standing to bring their claims, determined HB 349, HB 112 (as applied to post-secondary

institutions), and § 2 of SB 319 were each unconstitutional for violating the Board of

Regents’ constitutional authority by “attempt[ing] to directly control internal university

affairs and inject legislative policy judgments into MUS administration, contrary to the

letter and intent of the Montana Constitution.” The District Court permanently enjoined

“any application or enforcement of these unconstitutional enactments as against the Board

of Regents, the Montana University System and its constituent units, and on any MUS

campus or property.” Though the Plaintiffs prevailed on each of their claims, the District

Court denied their request for attorney fees and costs under the private attorney general

doctrine. In its decision, the court, in part, relied on § 25-10-711(1)(b), MCA, a statute

which allows a court to award costs and attorney fees against the State when a court finds

the State’s claim or defense to be “frivolous or pursued in bad faith.” The District Court

8
found “the State’s defense was not frivolous or in bad faith,” and accordingly denied the

Plaintiffs’ attorney fees request.

¶10 The State appeals the District Court’s ruling determining the Plaintiffs had standing

to challenge all three bills at issue, as well as the court’s merits ruling on the

constitutionality of HB 112, while the Plaintiffs cross-appeal the court’s ruling denying

them attorney fees. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW
¶11 We review a district court’s grant or denial of summary judgment de novo, applying

the same criteria as M. R. Civ. P. 56. Monroe v. Cogswell Agency, 2010 MT 134, ¶ 11,

356 Mont. 417, 234 P.3d 79. Summary judgment is only appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Monroe, ¶ 11.

¶12 A district court’s determination of a party’s standing is a question of law which we

review de novo. Brown v. Gianforte, 2021 MT 149, ¶ 7, 404 Mont. 269, 488 P.3d 548

(citing Cmty. Ass’n for N. Shore Conservation, Inc. v. Flathead Cnty., 2019 MT 147, ¶ 18,

396 Mont. 194, 445 P.3d 1195).

¶13 We exercise plenary review over matters of constitutional interpretation. Nelson v.

City of Billings, 2018 MT 36, ¶ 8, 390 Mont. 290, 412 P.3d 1058. Statutes are presumed

to be constitutional, and the party challenging a statute’s constitutionality bears the burden

of proving it unconstitutional beyond a reasonable doubt. Bd. of Regents, ¶ 10.

¶14 We review an order granting or denying attorney fees under the private attorney

general doctrine for an abuse of discretion. Burns v. Cnty. of Musselshell, 2019 MT 291,

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¶ 10, 398 Mont. 140, 454 P.3d 685. A district court’s determination of whether legal

authority exists for an award of attorney fees is a conclusion of law, which we review for

correctness. Burns, ¶ 10 (citing Clark Fork Coal. v. Tubbs, 2017 MT 184, ¶ 9, 388 Mont.

205, 399 P.3d 295).

DISCUSSION

¶15 This matter comes to us following cross-motions for summary judgment and none

of the material facts regarding the challenged bills are in dispute. “On cross-motions for

summary judgment, where the district court is not called to resolve factual disputes and

only draw conclusions of law, we review the district court’s conclusions of law to

determine whether they are correct.” Kilby Butte Colony, Inc. v. State Farm Mut. Auto.

Ins. Co., 2017 MT 246, ¶ 7, 389 Mont. 48, 403 P.3d 664 (citing Bud-Kal v. City of Kalispell,

2009 MT 93, ¶ 15, 350 Mont. 25, 204 P.3d 738). In deciding the competing cross-motions

for summary judgment, the District Court addressed the purely legal questions raised by

the Plaintiffs’ challenge to, and the State’s defense of, the legislation at issue here. On

appeal, we do the same.

¶16 1. Whether Plaintiffs have standing to challenge the constitutionality of HB 112
(2021), HB 349 (2021), and SB 319 (2021).

¶17 The State has repeatedly challenged the standing of the Plaintiffs in this case—first

by moving to dismiss, again on summary judgment, and once again on appeal. The basic

assertion put forth by the State is that, because the Plaintiffs claim the bills violate the

Board of Regents’ constitutional authority, the Board of Regents is essentially the only

proper party to challenge the bills at issue under the theories presented here. The Plaintiffs,

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meanwhile, contend they are proper parties to bring their claims because they are members

of the university community and the challenged legislation is directed at them. They assert

the “legislature’s intrusion into internal university system affairs is an injury in itself that

is personal to Plaintiffs and distinct from the public at large” and that they additionally

have individual and associational interests germane to each of the bills at issue.

¶18 As an initial matter, the State takes issue with the District Court’s treatment of

standing in its Order on Cross-Motions for Summary Judgment. In that order, the District

Court “decline[d] to revisit its prior order on standing”—a 12-page order denying the

State’s motion to dismiss on standing grounds—noting that “nothing has changed since the

[c]ourt’s prior Order” and that “the legal arguments do not depend on factual development

in the case,” before briefly reiterating its findings that the Plaintiffs had both prudential and

constitutional standing. On appeal, the State notes that a court must evaluate standing at

every stage of the litigation.2 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct.

2130, 2137 (1992). True enough, though evaluating standing at every stage does not

require a court to issue and reissue the same order every time one party claims the other

lacks standing. Here, the District Court issued a thorough, 12-page order denying the

State’s motion to dismiss on standing grounds. In response to the State again challenging

the Plaintiffs’ standing at the summary judgment stage, the District Court “reiterate[d]” its

2
In Montana, however, an exception to this general rule applies to petitions for judicial review of
agency decisions. Hilands Golf Club v. Ashmore, 2002 MT 8, ¶ 21, 308 Mont. 111, 39 P.3d 697
(“[S]tanding and mootness claims cannot be raised for the first time on judicial review of an
administrative agency decision unless the District Court determines that there was good cause for
the party’s failure to raise the question before the agency.”). This exception is not implicated here.
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previous finding, noting the facts of the case had not changed, and briefly put forth its

reasoning as to why the Plaintiffs had both prudential and constitutional standing. The

State argues that the District Court was required to consider evidence at the summary

judgment stage and failed to do so. But the District Court concluded that the summary

judgment evidence did not alter the legal basis for its ruling. And, in any event, this Court

conducts de novo review of a party’s standing on appeal, regardless of whether or not the

issue of standing has even been raised by the parties (either below or on appeal). Armstrong

v. State, 1999 MT 261, ¶ 4, 296 Mont. 361, 989 P.2d 364; In re Parenting of D.A.H., 2005

MT 68, ¶ 7, 326 Mont. 296, 109 P.3d 247; Bullock v. Fox, 2019 MT 50, ¶ 32, 395 Mont.

35, 435 P.3d 1187; see also Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002

MT 264, ¶ 19, 312 Mont. 257, 60 P.3d 381. The State’s quibble with the completeness of

the District Court’s summary judgment order as it relates to standing is immaterial at this

point and we need not address it further. We now turn to whether Plaintiffs have standing

to challenge the constitutionality of the legislation at issue.

¶19 The State challenged Plaintiffs’ standing by first filing an M. R. Civ. P. 12(b)(6)

motion to dismiss, and the District Court made its ruling accordingly. In its Order on

Cross-Motions for Summary Judgment, the court reaffirmed its previous decision that

Plaintiffs had standing to bring their claims challenging the legislation. In considering a

motion to dismiss made pursuant to Rule 12(b)(6), a court must consider only the

allegations made within the complaint, together with exhibits attached to the complaint.

Goodman Realty, Inc. v. Monson, 267 Mont. 228, 230-31, 883 P.2d 121, 122-23 (1997).

All well-pleaded facts must be taken as true and viewed in the light most favorable to the

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plaintiff. Wise v. CNH Am., LLC, 2006 MT 194, ¶ 6, 333 Mont. 181, 142 P.3d 774. “A

complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of a claim that would entitle the

plaintiff to relief.” Wise, ¶ 6. When considering a summary judgment motion asserting a

party lacks standing, a court must consider the specific facts set forth by the party opposing

the motion, “which for purposes of the summary judgment motion will be taken to be true.”

Lujan, 504 U.S. at 561, 112 S. Ct. at 2137. Summary judgment should be rendered when

“the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact” and a party is entitled to judgment as a

matter of law. M. R. Civ. P. 56(c)(3). In a multi-plaintiff case such as here, the standing

of any one plaintiff is sufficient for a claim to proceed and, upon finding that one plaintiff

has standing, “the standing of the other parties [does] not merit further inquiry.” Aspen

Trails Ranch, LLC v. Simmons, 2010 MT 79, ¶ 45, 356 Mont. 41, 230 P.3d 808 (citation

omitted).

¶20 The Complaint identifies ex-Regents, the Montana Federation of Public Employees,

an ex-Commissioner of Higher Education, faculty organizations, individual faculty

members, student groups, and individual students as plaintiffs. We deem the most

straightforward application of standing principles concerns the interests of students and

faculty who are currently enrolled, teach, and participate in the activities of the MUS. We

therefore limit our standing analysis to these plaintiffs and conclude that the standing of

the other plaintiffs does not warrant further inquiry.

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¶21 The Complaint identifies Plaintiff Montana University System Faculty Association

Representatives (MUSFAR) as an umbrella organization that represents and serves the

faculty of the MUS, advocating for the interests of that faculty at all of the units in the

MUS. The MUSFAR represents faculty members in all matters pertaining to academic

affairs and campus administration that broadly affect the MUS and faculty statewide.

¶22 Plaintiff Faculty Senate of Montana State University (Faculty Senate) is the

duly-elected governing body of the faculty at MSU. It is composed of representatives from

each faculty department, the Library, the Agricultural Research Centers, and the

Agricultural Extension Service. The Faculty Senate is the chief governance body of the

faculty at MSU Bozeman. It oversees the curricula, evaluates new academic programs,

frames procedures and standards of the Faculty Handbook, and serves to enhance

communication between the MSU faculty, administration, and students.

¶23 Three individual faculty members are identified in the Complaint: Dr. Joy C. Honea;

Dr. Annjeanette Belcourt (Otter Woman), and Dr. Franke Wilmer. Each are current faculty

members in the MUS.

¶24 Plaintiff MontPIRG is comprised of an on-campus recognized student group and an

independent affiliated non-profit, non-partisan 501(c)(4) with a board comprised entirely

of UM students elected by student members. MontPIRG student interns work on a variety

of campaigns, including efforts to drive youth participation in the 2020 Census, a relaunch

of its Tenant-Landlord Guide, and voter registration drives.

¶25 Plaintiff Associated Students of Montana State University (ASMSU) is the student

government of Montana State University. ASMSU is administered by an elected body of

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students with diverse backgrounds and interests. It serves as the representative voice of

students attending Montana State University by engaging with university administration

on behalf of the student body regarding matters affecting education, athletics and

extracurricular activities, student wellness and safety, and other issues germane to the

student population and campus life.

¶26 The Complaint identifies three individual students as plaintiffs: Ashley Phelan,

Joseph Knappenberger, and Nicole Bondurant.3 Each was a currently enrolled student at

the time the Complaint was filed.

¶27 The Complaint alleges that the aforesaid Plaintiffs and Plaintiff organizations are

concretely and adversely impacted by the challenged legislation. In addition to the interests

of their individual members and constituents, the Plaintiff organizations (MUSFAR, MSU

Faculty Senate, ASMSU, and MontPIRG) each have an interest in the subject matter of

this litigation which is germane to their organizational purpose. Each organization has a

strong interest in ensuring academic freedom, safe working conditions, campus safety,

freedom of speech, and non-discrimination. The Complaint avers that, in particular, these

organizations are apprehensive about the apparent open invitation to harass and

discriminate under HB 349 and the negative effect it will have on the learning environment.

3
During the hearing on the summary judgment motions, counsel for the Plaintiffs moved, without
objection, to dismiss both Count Two of the Complaint (relating to the HB 2 conditional
appropriation) and Nicole Bondurant as a plaintiff. While the District Court orally granted the
Plaintiffs’ motions to dismiss both Count Two and Bondurant as a plaintiff during the hearing, and
the Plaintiffs filed a proposed order reflecting such, it does not appear the District Court issued a
written order reflecting the dismissal of Count Two and Bondurant as a plaintiff. We do not
consider any claims relating to Count Two or Bondurant on appeal.
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These organizations are concerned about the impact on enrollment the legislation will have

due to concerns of prospective students and their parents over student safety, academic

freedom, discrimination, and limitations on freedom of speech. Plaintiff MontPIRG and

other students are further adversely affected by SB 319, which seeks to undercut

MontPIRG’s organizational funding. Specifically, should MontPIRG participate in ballot

activity as it has done in the past, SB 319 would place restrictions on voter registration and

other political activities in student dormitories and dining halls. Further, SB 319 would

undercut MontPIRG’s campus funding by eliminating its “opt-out” feature for student

funding. Plaintiffs allege HB 112 provides an exclusion for transgender athletes and that

it has constituent members who will suffer harm as a result of HB 112. The Complaint

alleges that individual students and faculty members are threatened with the same injury

and harm as Plaintiff organizations and that such threatened harms will not be suffered by

the population generally.

¶28 After the State’s motion to dismiss was denied, the parties conducted discovery

regarding the claims in this case. The Plaintiffs’ discovery responses, filed by the State as

an exhibit to its summary judgment motion, expanded upon the allegations of the

Complaint and set forth further facts relating to their standing with regard to the challenged

bills.4 Regarding HB 349, the Plaintiffs note both university campuses and the Board of

4
On appeal, and citing to a 7-page section of one of its own briefs before the District Court, the
State glibly asserts that “[t]he statements Plaintiffs rely on to establish standing are inadmissible.”
Such a citation is wholly inappropriate as the “Montana Rules of Appellate Procedure do not allow
for shortcut tactics such as this.” State v. Ferguson, 2005 MT 343, ¶ 40, 330 Mont. 103, 126 P.3d
463. “The requirement that appellate briefs ‘contain’ a party’s contentions unquestionably
precludes parties from incorporating trial briefs or any other kind of argument into appellate briefs
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Regents already have extensive non-discrimination policies before setting forth a lengthy

explanation of the harm to ASMSU’s representational and associational interests, noting

ASMSU’s commitment to non-discrimination, HB 349’s reduction of ASMSU’s

self-governance and undermining of ASMSU’s ability to “uphold anti-discrimination

practices outlined in the ASMSU constitution.” The Plaintiffs also noted the individual

student plaintiffs in the case and a number of protected class student organizations which

stood to suffer under HB 349. As to SB 319, the Plaintiffs set forth the harms to

MontPIRG—the only organization of its kind—and its loss of funding through its

Associated Students of the University of Montana and Board of Regents-approved opt-out

fee when registered as a political committee, as well as the imposition of limitations on

MontPIRG’s speech and activities as it relates to voter registration, signature gathering,

and voter turnout efforts on campus under the bill. Relating to HB 112, the Plaintiffs again

put forth ASMSU’s organizational interest in non-discrimination and upholding diversity

and inclusion for the student body, as well as the statement of a plaintiff who has a

transgender child, and whose sister also has a transgender child, who could face exclusion

from MUS athletics in the future. When considering a summary judgment motion, a court

must consider “the pleadings, the discovery and disclosure materials on file, and any

affidavits” to determine whether a genuine issue of material fact exists. M. R. Civ. P.

by mere reference. Simply put, appellate arguments must be contained within the appellate brief,
not within some other document. The mere reference to arguments and authorities presented in
district court proceedings is no substitute for developing and presenting appellate arguments.”
Ferguson, ¶ 41.
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56(c)(3). With the specific facts adduced from the discovery materials taken as true, Lujan,

504 U.S. at 561, 112 S. Ct. at 2137, we consider whether Plaintiffs have standing.

¶29 The determination of a party’s standing to maintain an action is a question of law,

which we review de novo. Heffernan v. Missoula City Council, 2011 MT 91, ¶ 28, 360

Mont. 207, 255 P.3d 80. Standing is one of several justiciability doctrines which limit

Montana courts to deciding only “cases” or “controversies.” See Plan Helena, Inc. v.

Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶¶ 6-8, 355 Mont. 142, 226 P.3d 567. The

question of standing is whether the litigant is entitled to have the court decide the merits of

the dispute. Helena Parents Comm’n v. Lewis and Clark Cnty. Comm’rs, 277 Mont. 367,

371, 922 P.2d 1140, 1142 (1996).

¶30 There are two strands to standing: the case-or-controversy requirement imposed by

the Constitution, and judicially self-imposed prudential limitations. Heffernan, ¶ 31. The

“‘irreducible constitutional minimum of standing’ has three elements: injury in fact (a

concrete harm that is actual or imminent, not conjectural or hypothetical), causation (a

fairly traceable connection between the injury and the conduct complained of, and

redressability (a likelihood that the requested relief will address the alleged injury).”

Heffernan, ¶ 32 (citations omitted). Beyond these minimum constitutional requirements,

there are several prudential limits: the plaintiff generally must assert his/her own legal

rights and interests; the courts will not adjudicate generalized grievances more

appropriately addressed in the representative branches; and the plaintiff’s complaint must

fall within the zone of interests protected by the law. Heffernan, ¶ 32.

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¶31 The District Court found both that Plaintiffs averred sufficient individualized

injuries to confer standing and that Plaintiffs had a legally protected interest through Article

X, § 9 of the Montana Constitution which establishes the Board of Regents and the

independence of the public higher education system. As we conclude that Plaintiffs

established sufficient individualized injuries to confer individual standing, we do not

address whether they additionally have standing through an invasion of a legally protected

interest conferred by Article X, § 9(2)(a). Aspen Trails Ranch, ¶ 45.

1. Constitutional Standing.

a. HB 349

¶32 HB 349 regulates student organizations and the speech of students on campus. The

bill limits the abilities of colleges and universities to discipline students for certain kinds

of speech and dictates whether certain student organizations are entitled to university

recognition, registration, use of university facilities, funding, and use of “channels of

communication.” Plaintiffs allege that HB 349 actually promotes and excuses some kinds

of student-on-student discrimination by preventing universities from responding to or

disciplining discriminatory and harassing speech. Plaintiffs contend protections they

previously had through Board of Regents policy have been undercut and discrimination

has been encouraged on campuses and in university-affiliated groups and organizations.

¶33 After considering the identity of the Plaintiffs and their role and purpose in higher

education, we conclude Plaintiffs have sufficiently alleged and supported a credible

injury-in-fact. Plaintiffs allege and support a credible threat of ongoing and future injury

due to actual discrimination and lack of recourse. HB 349 may have the effect of excusing

19
discriminatory conduct or of depriving students directly of protections the education

system had developed and implemented. Therefore, their injury is not abstract or

hypothetical and they have alleged a “personal stake in the outcome of the controversy”

sufficient to support the injury prong of constitutional standing. See Helena Parents

Comm’n, 277 Mont. at 371, 922 P.2d at 1143 (citations omitted). Further, they have met

the redressability element of standing – if HB 349 is deemed unconstitutional and enjoined,

the alleged harm will necessarily cease, affording complete redress.

b. HB 112

¶34 Plaintiffs characterize HB 112 as a bill “which purports to forbid university athletic

teams from allowing transgender athletes to participate in women’s sports.” The “Save

Women’s Sports Act,” as it has been characterized, requires sports teams to be expressly

designated as either male, female, or coed, based on the biological sex of the participants,

and bars “students of the male sex” from participating in women’s sports and creates a

cause of action against a school for violating these requirements.

¶35 The Plaintiffs are representative groups whose constituent members are students

who have suffered or will suffer harm as a result of HB 112. ASMSU, in particular, has

an associational interest in student athletics, extracurricular activities, student wellness, and

student safety. Plaintiffs have sufficiently alleged and supported a stake in the

constitutionality of HB 112 and have articulated and supported a credible future and

ongoing injury due to actual exclusion from participation. As noted by the District Court,

“[t]he forecasted injury, i.e. exclusion of transgender athletes, is not an abstract or remote

contingency. It is the expressly stated purpose and function of the challenged legislation.”

20
Further, the redressability element of standing is satisfied because if HB 112 is declared

unconstitutional and enjoined by this Court, the alleged harm will necessarily cease,

affording complete redress.

c. SB 319

¶36 Plaintiffs challenged portions of SB 319 which they maintain “restrict the ability of

student organizations to register students to vote in student dormitories and dining facilities

. . . .” SB 319 also prohibits the funding of such organizations through “opt-out” student

fee assessments and recognizes a private cause of action with civil fines for groups that

violate its restrictions. As the District Court found, MontPIRG conducts the kinds of

activities that SB 319 targets. Moreover, its operations have been traditionally funded by

an opt-out fee which SB 319 prohibits. MontPIRG has thus established it has a stake in

the constitutionality of SB 319 and has credibly alleged and supported that, if developed

and implemented, it will suffer an injury-in-fact, which is neither abstract nor hypothetical.

Further, the redressability element of standing is satisfied because if SB 319 is declared

unconstitutional and enjoined by this Court, the alleged harm will necessarily cease,

affording complete redress.

2. Prudential Standing.

¶37 With the Plaintiffs’ constitutional standing satisfied, we turn to whether they also

have prudential standing. “Prudential standing is a form of judicial self-governance that

discretionarily limits the exercise of judicial authority consistent with the separation of

powers.” Cmty. Ass’n for N. Shore Conservation, ¶ 19 (citing Bullock, ¶ 43). “Prudential

standing embodies the notion that courts generally should not adjudicate matters more

21
appropriately in the domain of the legislative or executive branches or the reserved political

power of the people.” Bullock, ¶ 43 (internal quotation marks and citation omitted).

Prudential standing is a “malleable” concept, Schoof v. Nesbit, 2014 MT 6, ¶ 15, 373 Mont.

226, 316 P.3d 831, and “cannot be defined by hard and fast rules[.]” Missoula City-County

Air Pollution Control Bd. v. Bd. of Env’t Rev., 282 Mont. 255, 260, 937 P.2d 463, 466

(1997).

¶38 In determining whether a party has prudential standing, “the importance of the

question to the public ‘surely is an important factor.’” Missoula City-County Air Pollution

Control Bd., 282 Mont. at 260, 937 P.2d at 466 (quoting Comm. for an Effective Judiciary

v. State, 209 Mont. 105, 110, 679 P.2d 1223, 1226 (1984)). The string of bills aimed at the

MUS were of great importance to the university community, and, in some cases, to the

public of the state at large. Prudential standing considerations are also concerned with

“whether the statute at issue would effectively be immunized from review if the plaintiff

were denied standing.” Heffernan, ¶ 33. Here, the Montana Legislature issued a barrage

of legislation targeting the MUS in 2021. The Board challenged some of it in the First

Judicial District Court, and prevailed. Other third parties challenged some of it in the First

Judicial District Court, and prevailed. Prudential considerations simply did not require the

District Court to deny standing to these parties and require those other parties, who were

already challenging other of the numerous unconstitutional laws aimed at the MUS, to

bring suit in their stead. The legislation challenged here directly affected the interests of

students, faculty, and staff of the MUS, giving rise to an injury sufficient to confer standing

to these Plaintiffs. In Missoula City-County Air Pollution Control Bd., we held that a local

22
board had standing to raise claims “concerning administrative regulation of [an] entity”

even when it did not possess regulatory authority over that entity. 282 Mont. at 261, 937

P.2d at 467. We found it “clear . . . that a citizen of Missoula, as one who breathes the air

into which Stone Container is expelling pollutants, would have standing to bring this

action.” Missoula City-County Air Pollution Control Bd., 282 Mont. at 262, 937 P.2d at

467. Justice Rice’s dissent appears to misapprehend our decision in this case, as he

performs no analysis of the individualized claims set forth by the Plaintiffs in this matter

before asserting the Plaintiffs do not have standing in this case because they are not the

Board of Regents, but “are free to pursue their own individual claims regarding any

unlawful impact HB 349, HB 112, or SB 319 has had upon them.” Rice Dissent, ¶ 92.

They have pursued such claims. In this very case. And we have determined the

individualized injuries suffered by the Plaintiffs are sufficient to confer standing even

though the Plaintiffs do not possess the power to act as the Board, just like those citizens

who suffered from pollution in Missoula City-County Air Pollution Control Bd. Justice

Rice would dictate how the Plaintiffs are allowed to present their claims by couching it as

an element of standing, asserting the Plaintiffs could bring other claims “for direct

violations of rights in their individual capacities, not claims premised upon violation of the

Board’s constitutional authority,” Rice Dissent, ¶ 95, and then, perhaps, he would agree

they have standing to challenge the unconstitutional laws. Standing does not require parties

to submit their litigation strategy for pre-approval by a judge—it requires them to meet

constitutional and prudential standing requirements, which they have. “[T]he question of

standing is related [] to whether the dispute sought to be adjudicated will be presented in

23
an adversary context and in a form historically viewed as capable of judicial resolution.”

Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953 (1968). Plaintiffs alleged past,

present, or threatened injuries to themselves, distinguishable from injuries to the public

generally, on questions of great importance to the public, and which would be alleviated

by successfully maintaining the action. Accordingly, both constitutional and prudential

standing considerations are met. Heffernan, ¶ 33. Having demonstrated standing, the

Plaintiffs are allowed to use any proper argument at their disposal in attempting to win on

the merits. Here, Plaintiffs used the obvious—and largely conceded by the State—

violation of Article X, § 9 to demonstrate HB 112, HB 349, and SB 319’s

unconstitutionality. The District Court agreed and enjoined the laws at issue, alleviating

the injury to the Plaintiffs because those laws no longer had any effect on them. Justice

Rice’s Dissent attempts to silo the Plaintiffs’ claims into his assertion the Plaintiffs sought

to act as the Board. They did no such thing—facing concrete injuries to themselves, they

merely acted to challenge the legislation when the Board did not for whatever reason. The

Constitution determines whether laws are unconstitutional, not the opinions, actions, and

inactions of the Board itself. Justice Rice’s Dissent further misconstrues our opinion in

Missoula City-County Air Pollution Control Bd., distorting it to make it appear to support

a conclusion which is logically at odds with its holding. The Plaintiffs’ challenge to the

legislation here is “a basic question of constitutional and statutory interpretation well-suited

to the province of the judiciary” and we have the “clear constitutional authority to interpret

the statutory language at issue.” Bullock, ¶ 46. This is particularly true in a case where, as

will be explained below, the State concedes that two of the three challenged bills remaining

24
in this case—HB 349 and § 2 of SB 319—are unconstitutional.5 To deny standing to the

Plaintiffs’ claims based on judicially-created prudential limitations in such a case would

serve no purpose other than to immunize the State from having its admittedly

unconstitutional legislation reviewed.

¶39 Both constitutional standing and prudential standing are satisfied in this case as the

Legislature specifically targeted the Montana university community with the legislation at

issue. While the Board of Regents would also have standing to challenge the legislation,

that does not mean the Board is the only proper party who may challenge the legislation

and the university community members here are proper parties and have standing to sue.

Accordingly, the District Court correctly determined the Plaintiffs in this case have

standing to bring their claims regarding the constitutionality of HB 349, HB 112, and SB

319. We turn now to the merits of the challenged legislation.

¶40 2. Whether HB 112 infringes on the Board of Regents’ authority under Article X,
§ 9 of the Montana Constitution.

¶41 As it did below, the State focused much of its briefing on the standing issue. Unlike

below, where it defended each of the three bills at issue on their merits, on appeal the State

defends on the merits only the constitutionality of HB 112. In its opening brief, the State

explicitly noted that, if this Court concludes the Plaintiffs have standing to bring their

claims, we should nonetheless “still reverse the district court because HB 112 represents a

valid exercise of the Legislature’s authority and does not violate the Board’s Article X, § 9

5
The State also did not appeal the First Judicial District Court’s determination that §§ 21 and 22
of SB 319 were unconstitutional, effectively admitting these sections of SB 319 to be
unconstitutional.
25
authority.” In response to the State failing to brief any defense of either HB 349 or § 2 of

SB 319 on the merits, the Plaintiffs asserted that, by failing to offer any defense of the other

challenged bills, the State has “concede[d] most of the legislation it has been defending the

last two years is unconstitutional.” In reply, the State claimed it did not concede HB 349

and SB 319 were unconstitutional and argued its decision to only provide specific argument

on the merits of HB 112 was a “briefing strategy[.]”6

¶42 “[B]riefing strategy” or not, the State has in fact conceded HB 349 and SB 319 are

unconstitutional by failing to provide any argument that they are in fact constitutional on

appeal. See Clark v. McDermott, 2022 MT 186, ¶ 14, 410 Mont. 174, 518 P.3d 76.7 Surely

the State had to realize this Court determining the Plaintiffs had standing to bring their

claims was a very real possibility, as the District Court twice found standing in this case,

and the State included additional briefing on the merits of HB 112, asserting that “[e]ven

if the Court finds that this assortment of plaintiffs can vindicate the Board of Regents’

constitutional authority, HB 112 survives constitutional muster[.]” By not raising any

arguments regarding the merits of HB 349 and SB 319 on appeal, the State has conceded

the unconstitutionality of those bills. “[W]e are not obligated to develop arguments on

behalf of parties to an appeal, nor are we to guess a party’s precise position, or develop

6
In its briefing below, citing to Bd. of Regents, ¶ 14, the State argued that the District Court must
“evaluate each bill individually to determine whether the Board has exclusive authority over that
subject matter.”
7
Without analysis, the State claimed the Plaintiffs’ citation to Clark in their response brief to be
“inaccurate” and Clark itself to be “inapplicable.” Clark’s recognition of our consistent rule that
arguments raised below but not appealed are conceded is both accurate and applicable.
26
legal analysis that may lend support to his position.” McCulley v. Am. Land Title Co., 2013

MT 89, ¶ 20, 369 Mont. 433, 300 P.3d 679 (citing Botz v. Bridger Canyon Plan. & Zoning

Comm’n, 2012 MT 262, ¶ 46, 367 Mont. 47, 289 P.3d 180). This Court is not required to

develop the State’s merits arguments regarding HB 349 and SB 319, guess at the State’s

position as to exactly why HB 349 and SB 319 would be constitutional, or to develop legal

analysis which may support the State’s entirely unstated position on the matter. Baldly

asserting this lack of legal analysis was simply a “briefing strategy,”8 and not a concession

of the merits of those bills, is unpersuasive and barred by our case law on the matter. See

Clark, ¶ 14; McCulley, ¶ 20.

¶43 With both HB 349 and § 2 of SB 319 conceded to be unconstitutional infringements

of the Board of Regents’ constitutional authority, we are left with only the Plaintiffs’

challenge to HB 112 to consider. The District Court determined “HB 112

unconstitutionally infringes upon the Board’s constitutional authority to oversee student

groups and activities and would otherwise invite financial and administrative consequences

that firmly place this matter within the Board’s exclusive domain” and could not “be fairly

characterized as [a] neutral law[] of statewide concern,” as HB 112 “attempts to directly

control internal university affairs and inject legislative policy judgments into MUS

administration, contrary to the letter and intent of the Montana Constitution.” Accordingly,

8
We would additionally note that the State’s opening brief in this matter was over 2,100 words
fewer than the 10,000-word maximum allowed under the Montana Rules of Appellate Procedure.
M. R. App. P. 11(4)(a). The Rules also allow for a party to move to file an over-length brief if
justified. M. R. App. P. 12(10). It is apparent the State did not choose to not brief the merits of
HB 349 and SB 319 due to inadequate word limitations.
27
the District Court determined HB 112 unconstitutionally violated Article X, § 9 and

permanently enjoined its application and enforcement as it pertains to institutions of higher

education.9

¶44 The State contends HB 112 is not an unconstitutional infringement of the Board’s

authority because the Board is not the plaintiff in this case, it is possible “that the Board

deliberately chose not to challenge HB 112,” and appears to contend, for the first time on

appeal, that the Board does not have “full and exclusive authority over university athletics,”

such that the Legislature may micromanage who is allowed to play sports at the state’s

universities—from varsity teams all the way down to intramural programs. The Plaintiffs

contend that the State waived its newfound argument that the Board lacks authority to

regulate university athletics and that HB 112 targets and directly interferes with existing

Board policy regarding athletics.

¶45 The Plaintiffs are correct to note that this Court generally does “not consider new

arguments or legal theories for the first time on appeal[.]” Pilgeram v. GreenPoint Mortg.

Funding, Inc., 2013 MT 354, ¶ 20, 373 Mont. 1, 313 P.3d 839 (collecting cases). The

State’s argument below was not that the Board lacked control over university athletics, but

9
As the District Court did below, we address only whether HB 112 violates the Board of Regents’
authority and the bill’s application as it pertains to institutes of higher education. HB 112 applies
to more than just institutes of higher education, however, applying to “[i]nterscholastic,
intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public
elementary or high school, a public institution of higher education, or any school or institution
whose students or teams compete against a public school or institution of higher education[.]”
Section 20-7-1306(1), MCA. We do not reach the question of whether HB 112 violates any other
provisions of the Montana Constitution, such as the right to individual dignity and equal protection
of the laws, Mont. Const. art. II, § 4, when applied to elementary and high school students and/or
athletic teams.
28
that HB 112 was a neutral, statewide law, not one targeting the Board, and that the Board

lacked a policy on transgender athletes. We need not consider the State’s new argument

regarding the Board’s authority to regulate university athletics here, but we do note that

“extracurricular activities are part of the educational process[.]” State ex rel. Bartmess v.

Bd. of Trs. of Sch. Dist. No. 1, 223 Mont. 269, 272-73, 726 P.2d 801, 803 (1986).

¶46 We have recently explained, at some length, the constitutional relationship between

the Board of Regents and the Montana Legislature. Bd. of Regents, ¶¶ 11-25. We again

reiterate “that Montana’s Constitution is a prohibition upon legislative power, rather than

a grant of power.” Bd. of Regents, ¶ 11 (citing Bd. of Regents v. Judge, 168 Mont. 433,

444, 543 P.2d 1323, 1330 (1975)). In concert with that prohibition, the Board either

having, or lacking, a specific policy on a matter germane to the governance of the university

system is not a green light for the Legislature to insert itself and attempt to usurp the

Board’s constitutional authority to “supervise, coordinate, manage and control the Montana

university system[.]” Mont. Const. art. X, § 9(2)(a).

¶47 Here, the State argues the Board lacks a specific policy regarding transgender

athletes. The Plaintiffs respond that the Board does in fact have a transgender athlete

policy, Board of Regents Policy 1202.1. Policy 1202.1(I)(F), promulgated by the Board,

provides that “[e]ach campus will comply with National Collegiate Athletic Association or

National Association of Intercollegiate Athletics regulation, whichever is applicable in

accordance with campus membership, and with the rules established by the athletic

conferences to which each campus now belongs or may join.” The State asserts this policy

29
“does not reflect the Board’s judgment on transgender athletes or how male and female

athletic teams must be designated.”

¶48 The Board of Regents has long been responsible for regulating athletics for the

MUS, and it has promulgated policies regarding equality, funding, gambling, athletic

scholarships, and myriad other topics touching on university athletics. Athletics have long

been an area the Board has been constitutionally required to “supervise, coordinate,

manage and control[.]” Mont. Const. art. X, § 9(2)(a). Further, it is clear that Policy

1202.1(I)(F) does reflect the Board’s judgment on transgender athletes and how male and

female athletic teams must be designated, because it requires MUS campuses and teams to

comply with either the NCAA or NAIA, as applicable, and to the conferences to which the

teams are members. The NCAA and NAIA have transgender athletics policies, which

include specific standards for participation, not the blanket ban the Legislature sought to

impose on the MUS. See Transgender Student-Athlete Participation Policy, National

Collegiate Athletic Association, https://perma.cc/EAS3-7XBX; 2023-2024 Official &

Policy Handbook, National Association of Intercollegiate Athletics,

https://perma.cc/FR85-AJZR. The Board’s authority to regulate university athletics

certainly includes the authority to ensure MUS sports teams are in compliance with national

and conference regulations and it does not require the Board to go back to the drawing

board and impose a new policy every time the NCAA and/or NAIA updates its transgender

athlete participation rules.10 The Board is not delegating its authority to the NCAA and/or

10
The State has asserted that “only the Board of Regents itself can say whether it believes it is out
of compliance with the NCAA and NAIA.” That would certainly be contrary to requirements for
30
NAIA, but exercising its authority to promulgate policies which ensure MUS students

remain eligible to compete. “[W]here legislative action infringes upon the constitutionally

granted powers of the Board to supervise, coordinate, manage, and control the MUS, the

legislative power must yield.” Bd. of Regents, ¶ 24.

¶49 Though HB 112 targets more than just university athletics, by also applying to

elementary and high school sports, it does indeed target university athletics, and therefore

the Board’s constitutional authority. The Legislature cannot avoid Article X, § 9’s grant

of power to the Board by simply adding non-MUS institutions to the law. We do not ignore

the “public interest in challenging the legality of legislative action that allegedly flies in

the face of our state constitution.” Comm. for an Effective Judiciary, 209 Mont. at 111,

679 P.2d at 1226. As applied to the Board, then, HB 112 functions as a “legislative

directive of MUS policy and undermines the management and control exercised by the

Board to set its own policies and determine its own priorities. The Board, not the

Legislature, is constitutionally vested with full authority to determine the priorities of the

MUS,” including university athletics. Bd. of Regents, ¶ 23. Just as in Bd. of Regents, our

holding here does not “elevate the Board and MUS to a fourth branch of government or

provide the Board veto power over state laws it disagrees with.” Bd. of Regents, ¶ 24. It

is simply a rejection of the Legislature’s unconstitutional attempt to invade university

affairs constitutionally delegated to the Board.

participation in the NCAA or NAIA which vests each organization with the right to regulate the
compliance of its member institutions and impose penalties ranging from vacating wins to reducing
scholarships to imposing the “death penalty”—prohibiting a violating school from sponsoring a
sport for up to two years.
31
¶50 In its summary judgment order, the District Court declared HB 349, HB 112 (as

applied to the Board of Regents), and § 2 of SB 319 unconstitutional. By failing to brief

any merits defense of HB 349 or § 2 of SB 319 on appeal, the State has conceded those

bills are unconstitutional. And we agree with the District Court’s conclusion that, as

applied to the Board of Regents, HB 112 is unconstitutional. As such, the District Court

correctly determined HB 349, HB 112 (as applied to the Board of Regents), and § 2 of SB

319 were unconstitutional and permanently enjoined their enforcement. The District

Court’s summary judgment order is affirmed as it relates to both the Plaintiffs’ standing

and the unconstitutionality of the bills at issue.

CONCLUSION

¶51 The District Court correctly determined the Plaintiffs had standing to bring facial

constitutional challenges to HB 112 (2021), HB 349 (2021), and § 2 of SB 319 (2021).

The District Court was also correct when it determined each of those bills was

unconstitutional.

/S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA

Justice Gustafson, joined by Justice McKinnon, disagreeing with the District Court

Judgment as to attorney fees:

32
¶52 3. Whether the District Court erred by denying the prevailing plaintiffs their
attorney fees under the private attorney general doctrine.

¶53 While the District Court agreed with the Plaintiffs and granted summary judgment

on each of their claims, it nonetheless denied them their attorney fees under the private

attorney general doctrine (private AG doctrine). The Plaintiffs assert the District Court’s

denial was based on a mistake of law, specifically the court importing the frivolousness

and/or bad faith statutory requirements of § 25-10-711, MCA, to the common law private

attorney general doctrine. The Plaintiffs further assert this Court should overturn our 2012

decision in W. Tradition P’ship v. Att’y Gen. of Mont., 2012 MT 271, 367 Mont. 112, 291

P.3d 545, “insofar as it holds that ‘bad faith’ and ‘frivoulous[ness]’ are relevant

considerations” under the private AG doctrine. The State asserts the District Court

properly denied fees based on equitable factors and public policy considerations and

contends its defense of the bills at issue was not done in bad faith.

¶54 “Montana follows the American Rule regarding payment of attorney fees—that

each party is generally responsible for its own.” Davis v. Jefferson Cnty. Election Off.,

2018 MT 32, ¶ 10, 390 Mont. 280, 412 P.3d 1048 (citing W. Tradition P’ship, ¶ 9). In that

vein, a prevailing party is generally not entitled to recover its attorney fees, but there are

equitable exceptions to the general rule. Davis, ¶ 10 (citations omitted). One such

equitable exception is the private attorney general doctrine. W. Tradition P’ship, ¶ 13.

“The purpose of the Doctrine is to ‘provide[] an incentive for parties to bring public interest

related litigation that might otherwise be too costly to bring.’” Forward Mont. v. State,

2024 MT 75, ¶ 24, ___ Mont. ___, ___ P.3d ___ (quoting Sunburst Sch. Dist. No. 2 v.

33
Texaco, Inc., 2007 MT 183, ¶ 91, 338 Mont. 259, 165 P.3d 1079). “This doctrine ‘is

normally utilized when the government, for some reason, fails to properly enforce interests

which are significant to its citizens.’” W. Tradition P’ship, ¶ 13 (quoting Montanans for

the Responsible Use of the Sch. Tr. v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263,

¶ 64, 296 Mont. 402, 989 P.2d 800 (Montrust)).

¶55 To determine whether an award of fees under the private AG doctrine is warranted,

“a court must consider the following factors [first adopted by this Court in Montrust,

¶¶ 66-67]: (1) the strength or societal importance of the public policy vindicated by the

litigation, (2) the necessity for private enforcement and the magnitude of the resultant

burden on the plaintiff, (3) the number of people standing to benefit from the decision.”

Burns, ¶ 13 (internal quotation marks and citation omitted). “The court must also consider

whether awarding fees would be unjust under the circumstances.” Burns, ¶ 13 (citing

Bitterroot River Protective Ass’n v. Bitterroot Conservation Dist., 2011 MT 51, ¶ 20, 359

Mont. 393, 251 P.3d 131 (BRPA III)). An award of fees under the private AG doctrine is

available “only in litigation vindicating constitutional interests.” Am. Cancer Soc’y v.

State, 2004 MT 376, ¶ 21, 325 Mont. 70, 103 P.3d 1085 (citing Montrust, ¶ 66).

¶56 In rejecting the Plaintiffs’ private AG doctrine attorney fee claim, the District Court

addressed each of the three Montrust factors, before noting it also looked to § 25-10-711,

MCA, to determine whether the Plaintiffs should be awarded fees under the private AG

doctrine. Section 25-10-711, MCA, is a specific statute allowing an award of costs against

a governmental entity when a suit or defense is found to be frivolous or pursued in bad

faith:

34
 In any civil action brought by or against the state, a political subdivision, or
an agency of the state or a political subdivision, the opposing party, whether
plaintiff or defendant, is entitled to the costs enumerated in 25-10-201 and
reasonable attorney fees as determined by the court if:

(a) the opposing party prevails against the state, political subdivision,
or agency; and

(b) the court finds that the claim or defense of the state, political
subdivision, or agency that brought or defended the action was frivolous or
pursued in bad faith.

Section 25-70-711(1), MCA. In W. Tradition P’ship, we found this statute was “not

dispositive,” but “serves as a guidepost in analyzing a claim for fees under the private

attorney general doctrine.” W. Tradition P’ship, ¶ 18. We further noted that, in Montrust,

“we implied that since the private attorney general doctrine is an equitable exception to the

American Rule, the statute was not controlling.” W. Tradition P’ship, ¶ 18 (citing

Montrust, ¶ 64) (emphasis in original). We then went on to distinguish Montrust as “not a

‘garden variety’ constitutional challenge to a legislative enactment” because it involved

unique issues regarding the State’s breach of fiduciary duties imposed under the Montana

Constitution. W. Tradition P’ship, ¶ 19. In denying fees under the private AG doctrine in

W. Tradition P’Ship, we noted the State mounted a good faith defense to a law prohibiting

corporations from contributing to candidates which “was grounded in constitutional

principles and in an effort to enforce interests the executive deemed equally significant to

its citizens. The Attorney General defended a statute with deep roots in the State’s history,

enacted by initiative of the people to combat corruption that had resulted in the bribery of

state judges and the embarrassment of seeing one of the State’s U.S. Senators unseated for

35
also accepting bribes” and therefore the predicate for an award of fees under the private

AG doctrine was not met. W. Tradition P’ship, ¶ 20 (emphasis added).

¶57 The Plaintiffs ask us to overrule W. Tradition P’ship and its discussion of § 25-10-

711, MCA, as a guidepost which may be used by a court when analyzing a claim for fees

under the private AG doctrine. We do not, at this juncture, find it necessary to overrule W.

Tradition P’ship, but take the opportunity to spotlight its ultimate holding, found two

paragraphs beyond where the District Court cited, and which is unchanged from the private

AG doctrine analysis set forth in Montrust: “the predicate for an award of fees under the

private attorney general doctrine” remains “when the government, for some reason, fails

to properly enforce interests which are significant to its citizens[.]” W. Tradition P’ship,

¶ 20. So, while a court may consider frivolousness or bad faith in analyzing a potential

private AG doctrine award, the three Montrust factors, and the ultimate determination of

whether the government, for some reason,11 failed to properly enforce interests which are

significant to its citizens, remain dispositive to the question of whether an award of fees

under the private AG doctrine is available.12

11
Which could include, among other things, where the governmental agency with authority to
challenge the constitutionality of particular legislation has been threatened, by provision in the
legislation or otherwise, with loss of funding should it challenge the legislation.
12
As stated by the Supreme Court of California in the case we adopted both the Private AG
Doctrine and its resulting three-part inquiry from, “[t]he ‘private attorney general’ theory must be
accepted or rejected on its own merits -- i.e., as a theory rewarding the effectuation of significant
policy -- rather than as a policy-oriented extension of the ‘substantial benefit’ theory burdened
with the limitations of that rationale.” Serrano v. Priest, 569 P.2d 1303, 1314 n.16 (Cal. 1977)
(emphasis added).
36
¶58 With these considerations in mind, we address whether the Plaintiffs should be

entitled to an award of fees under the private AG doctrine in this case. The State provides

no analysis of each Montrust factor in response to the Plaintiffs’ cross-appeal, asserting

that “[e]ven if Plaintiffs can plausibly satisfy each factor, equitable factors must also favor

an award” and contending the equitable considerations weigh in favor of the State. The

Plaintiffs contend they meet each of the Montrust factors and are entitled to private AG

doctrine fees. The District Court held the Plaintiffs met two of the three Montrust factors

below, but determined the Plaintiffs did not meet the “necessity of private enforcement”

prong of the test and then also determined the State’s defense was not made in bad faith.

¶59 Regarding the first Montrust factor, “the strength or societal importance of the

public policy vindicated by the litigation,” Burns, ¶ 13, the District Court found this factor

was met. “It is the vindication of constitutional interests that demonstrates the societal

importance of the litigation.” Burns, ¶ 21. In seeking to vindicate the Montana

Constitution’s explicit grant of authority to the Board of Regents to govern the MUS, the

Plaintiffs have “litigated important public policies that are grounded in Montana’s

Constitution.” Montrust, ¶ 67. The constitutional issues regarding the Board’s authority

raised in this case “implicate the heart of the constitutional purpose of” Article X, § 9.

Burns, ¶ 20. It is abundantly clear the Plaintiffs meet the first private AG doctrine factor.

¶60 Even when important constitutional interests are vindicated by the litigation, we still

look at the second Montrust factor—“the necessity for private enforcement and the

magnitude of the resultant burden on the plaintiff.” Burns, ¶ 13. Under this factor, we

consider whether invoking the private AG doctrine provides an incentive to the parties to

37
bring public interest litigation that would otherwise be too costly to bring. Forward Mont.,

¶ 36; Sunburst, ¶ 91. When litigants are motivated primarily by their own interest and only

coincidentally protect the public interest, attorney fees are inappropriate. Forward Mont.,

¶ 36; Sunburst, ¶ 91.

¶61 In considering the second Montrust factor, the District Court found this factor to

weigh in favor of the State because the “Board of Regents could have initiated an action

asserting its constitutional authority and challenging the bills at issue in this case, thereby

alleviating Plaintiffs’ burden in this matter.” At the outset of our consideration, we note

that protection of the public interest and vindication of citizens’ constitutional rights are at

the heart of, not coincidental to, the litigation. We also find it salient that, once again, the

State provided no analysis on this factor. “‘This Court will not consider unsupported

arguments, locate authorities or formulate arguments for a party in support of positions

taken on appeal.’” Forward Mont., ¶ 38 n.6 (quoting State v. Kearney, 2005 MT 171, ¶ 16,

327 Mont. 485, 115 P.3d 214). The District Court found this uncertainty weighed in favor

of the State because the “Board of Regents could have initiated an action asserting its

constitutional authority and challenging the bills at issue in this case, thereby alleviating

Plaintiffs’ burden in this matter.” We disagree that merely because the Board could have

initiated an action, this factor weighs in favor of the State.13 The District Court’s decision

13
The Plaintiffs in this case noted their case had been in preparation for “a number of weeks,” but
they delayed filing, “hoping that the Board of Regents would, itself, seek to vindicate its
constitutional authority.” It was only after the Board voted to challenge only HB 102 on May 19,
2021, and then filed for original jurisdiction in this Court that the Plaintiffs followed suit by also
seeking original jurisdiction, but seeking to challenge HB 112, HB 349, and SB 319 in addition to
HB 102. In their petition, the Plaintiffs noted they delayed filing waiting for the Board, and then
38
came after the Plaintiffs repeatedly litigated their standing to bring the claims in the face

of the State’s opposition and the court repeatedly found they had standing to bring their

claims. Foreclosing a private AG doctrine award on a hypothetical—that the Board could

file its own action—when the court’s decisions alleviated any potential need for the Board

to file its own action creates an untenable Catch-22. Private parties cannot be forced to

wait indefinitely for a governmental entity to bring a suit which may or may not ever come

when faced with unconstitutional legislation. The District Court’s determination that the

Board could have initiated an action also fails to consider that the Board took no action

over the nearly 1½ year period from the filing of the complaint to the District Court’s

granting Plaintiffs summary judgment—the Board did not seek to be added or substituted

as the party in interest and it did not seek to intervene or otherwise indicate an intention to

bring an action challenging HB 349, HB 112, or SB 319.14 The Board’s failure to initially

challenge the subject legislation for whatever reason and its intervening prolonged inaction

only filed after the Board did. They further noted they “may move to consolidate their Petition
with that of the Regents[.]” After this Court quickly dismissed both petitions for original
jurisdiction on May 26, 2021, see Bd. of Regents v. State, No. OP 21-0246, Order (Mont. May 26,
2021) and Barrett v. State, No. OP 21-0247, Order (Mont. May 26, 2021), the Board filed suit in
district court on May 27, 2021, again challenging only HB 102. It was only after the Board filed
its suit in district court, challenging only HB 102, that these Plaintiffs filed their Complaint in the
District Court. Rather than demonstrating the Board did not act, the record demonstrates that the
Board did act—repeatedly—and “for whatever reason,” only challenged HB 102.
14
It is also noted that on appeal, the Board did not seek to file an amicus brief or otherwise
participate in the appeal.
39
overwhelmingly demonstrate the necessity for private enforcement.15 And, again, the State

did not provide any specific argument regarding this factor.

Since the only governmental entity involved in this case was defending the
statute, private enforcement was necessary. “Although there are within the
executive branch of the government offices and institutions (exemplified by
the Attorney General) whose function it is to represent the general public in
such matters and to ensure proper enforcement, for various reasons the
burden of enforcement is not always adequately carried by those offices and
institutions, rendering some sort of private action imperative.” Serrano, 569
P.2d at 1313. The second factor of Montrust is met.

Forward Mont., ¶ 41 (quoting Serrano, 569 P.2d at 1313). Both the necessity and the

magnitude of the Plaintiffs’ burden—litigating this case against the State and its nearly

unlimited legal resources for over 34 months as of the date of this Opinion while asserting

no monetary damage claims—clearly weigh in favor of the Plaintiffs. See Montrust, ¶ 67.

¶62 While the Chief Justice agrees the first and third Montrust factors weigh in favor of

fees, his agreement with the District Court judgment as to fees (McGrath Concurrence)

notes his concern with the second Montrust factor—the necessity of private enforcement—

being met in this case, McGrath Concurrence, ¶ 78 n.4, and notes the Plaintiffs here filed

suit “a month before HB 112 and SB [319] were set to go into effect.” McGrath

Concurrence, ¶ 80. This is then negatively compared with the Board’s challenge to HB

102, which was “just four days before a main provision of the Bill was set to go into effect.”

McGrath Concurrence, ¶ 80 n.5. Conspicuously absent from this entire discussion is HB

15
Under the District Court’s reasoning, unless the government is precluded from bringing the
constitutional challenge, the second Montrust factor is, in essence, defeated. Contrary to Montrust,
this would effectively eliminate use of the private AG doctrine when the government, for some
reason, fails to properly enforce interests which are significant to its citizens.
40
349, which went into effect on April 15, 2021, over a month before the Board filed either

of its two suits challenging only HB 102. 2021 Mont. Laws ch. 234, § 1. At the time the

Board filed its suits challenging only HB 102, HB 349 was already infringing on the

Board’s constitutionally guaranteed independence and yet the Board did not file suit to

challenge it. And HB 349 was also currently affecting the tens of thousands of Montana

University System students subject to the bill, which this Court found constituted “a

credible threat of ongoing and future injury due to actual discrimination and lack of

recourse,” because the bill “may have the effect of excusing discriminatory conduct or of

depriving students directly of protections the education system had developed and

implemented.” Opinion, ¶ 33. The Board, though capable of asserting its own

constitutional independence as evidenced by its challenge to only HB 102, simply chose

not to “for whatever reason.” The actual student Plaintiffs here, who were threatened with

actual discrimination, cannot be forced to wait indefinitely for the Board to assert its own

independence. The second Montrust factor, in addition to being conceded by the State who

chose not to brief any dispute of this factor, is also clearly met by the facts of the case.

“[A]lthough we have not set a threshold number of people benefitting from the decision to

support attorney fees under the Doctrine, clearly issues of statewide importance are

sufficient to pass muster under the third factor.” Forward Mont., ¶ 42. Tens of thousands

of MUS students were facing the prospect of actual harm and discrimination, the Board did

not act, and the student Plaintiffs here—after waiting “a number of weeks” for the Board

to assert its own constitutional independence—stepped up and challenged unconstitutional

legislation in the face of governmental indifference by the Board. If waiting over a month

41
beyond the time HB 349 came into effect, with no challenge by the Board, is not long

enough to demonstrate the necessity of private enforcement, what would be? Six months?

Must they face a full year of “actual discrimination” with a “lack of recourse” before it is

evident the Board, “for whatever reason,” is not challenging the law? Again, these parties,

who were facing actual harm, cannot be forced to wait indefinitely for a Board challenge

which may never come.

¶63 The District Court found the third Montrust factor, “the number of people standing

to benefit from the decision,” Burns, ¶ 13, was satisfied in this case. We agree. Once

again, the State did not brief any dispute of this factor. As noted by the District Court,

“Montana’s public universities are among the largest and most important public institutions

in this state. This case stands to benefit the more than 40,000 students who presently make

up the Montana University System as well as future students and many thousands of MUS

faculty, employees, and the public at large.” The Plaintiffs choosing to bring this case

against the State has benefitted, and will benefit, the people of this state, who all benefit

when constitutional interests are vindicated.

¶64 With each of the Montrust factors satisfied—and not seriously contested by the

State—in this case, we address the District Court’s reliance on § 25-10-711, MCA, in

denying private AG doctrine fees. The District Court found the State’s defense “was not

frivolous or pursued in bad faith[.]” Once again, frivolousness and bad faith are simply

guideposts along a path to determine whether the ultimate “predicate for an award of fees

under the private attorney general doctrine,” which is “when the government, for some

reason, fails to properly enforce interests which are significant to its citizens,” has been

42
met. W. Tradition P’ship, ¶ 20. Relying solely on a statutory-based determination that

frivolousness and bad faith have not been demonstrated is not proper exercise of discretion

under the private AG doctrine. “The private attorney general doctrine, however, is an

equitable exception to [the American] rule, ‘when the government, for some reason, fails

to properly enforce interests which are significant to its citizens’ and private citizens must

take up litigation to vindicate those interests.” Burns, ¶ 13 (quoting Montrust, ¶ 64). Here,

the Plaintiffs had to take up litigation to vindicate the interests of the university community

and the Board of Regents’ independence and constitutional authority. Under the private

AG doctrine, “it may be considered equitable to award attorneys’ fees” to the Plaintiffs in

such a circumstance. Finke v. State ex rel. McGrath, 2003 MT 48, ¶ 33, 314 Mont. 314,

65 P.3d 576.

¶65 In addition, while we need not make a judicial determination of bad faith in this

case, there are indications where one could question whether the State was not entirely

acting in good faith by defending all of the bills at issue here. One such indication is that

the State did not even brief any merits defense for two of the three challenged bills on

appeal after the District Court declared them unconstitutional. Yet the State, in its zeal to

impose unconstitutional legislative enactments against the Board and the MUS, continued

to assert the Plaintiffs could not even bring the claim against those laws the state concedes

are unconstitutional. The State also failed to contest any of the Montrust factors of the

private AG doctrine, essentially conceding the Plaintiffs were forced to bring their claims

to vindicate constitutional guarantees in the face of State opposition.

43
¶66 Failing to contest any of the Montrust factors, the State hangs its hat on equitable

considerations and its belief the State cannot have fees awarded against it under the private

AG doctrine for unconstitutional legislation. Citing to Finke, the State argues it is

legislatively immune from private AG doctrine fees outside of exceptional circumstances.

Finke, ¶ 34 (citing § 2-9-111, MCA). As noted in Forward Mont., “a reading of the statute

(§ 2-9-111, MCA) mentioned in Finke does not lead to a conclusion that it prohibits

attorney fees against the State.” Forward Mont., ¶ 22. Section 2-9-111(2), MCA, provides

a “governmental entity is immune from suit for a legislative act or omission by its

legislative body, or any member or staff of the legislative body, engaged in legislative

acts.” In Finke, we declined private AG doctrine fees to voters who successfully

challenged a building code law after determining it would be unjust “to force the Counties

[where the plaintiffs resided] to pay for the unconstitutional actions of the Legislature” and

it would be inequitable to impose private AG doctrine fees against the counties “who

neither fashioned nor passed the unconstitutional law[.]” Finke, ¶ 33. In dicta, we also

declined to award the Finke plaintiffs fees against the State, though they “did not

specifically seek attorneys’ fees from the State,” citing to the legislative immunity shield

of § 2-9-111, MCA. Finke, ¶ 34. Finke can be read two ways: (1) fees are unavailable

when a plaintiff does not specifically request them, or (2) it might be understood to draw a

line between enaction and enforcement—with attorney’s fees available against the State

only when it is tasked with enforcing an unconstitutional law. Either way, Finke and its

dicta discussion of § 2-9-111, MCA, raised by the Court apparently sua sponte in that case,

do not provide a categorical bar on private AG doctrine fees being awarded against the

44
government. Here, unlike in Finke, the State alone had the power to enact or to avoid

enacting unconstitutional legislation. In addition, the State did not specifically raise

§ 2-9-111, MCA,16 as a reason to deny private AG doctrine fees below, instead relying on

its assertion it was not acting in bad faith. The private AG doctrine, as an equitable

doctrine, must still be understood to be guided by its underlying purpose, to provide some

compensation to the individuals who take on the burden to vindicate the public good “when

the government, for some reason, fails to properly enforce interests which are significant

to its citizens[.]” W. Tradition P’ship, ¶ 20.

¶67 Forward Mont. and W. Tradition P’ship discussed attorney fees in relation to the

Attorney General’s defense of the law and our hesitancy to interfere with executive

functions of the state. In discussing attorney fees in relation to the Attorney General’s

defense of the law, we looked at whether the Attorney General had defended the law

frivolously or in bad faith as a guidepost. Forward Mont., ¶ 25. We then noted that similar

guidepost consideration is warranted in determining whether fees are proper under the

private AG doctrine when the legislature enacts unconstitutional laws—to look to the

conduct of the legislature in enacting unconstitutional laws. Forward Mont., ¶ 30. Here,

like in Forward Mont., legislative acts are at issue and we similarly use caution so as not

to interfere with proper functioning of the legislative branch.

16
This statute, part of the Montana Tort Claims Act, provides only that the State cannot be held
liable under a tort theory for enacting laws. Legislative immunity does not leave citizens without
judicial recourse against unconstitutional laws. See § 2-9-102, MCA (which allows suits against
the government for acts/omissions committed by government employees acting in course and
scope of employment).
45
¶68 Here, the Legislature was put on notice by legislative services that HB 112 and HB

349 likely violated Article X, § 9 of the Montana Constitution and the Board’s authority.

Despite this, no effort was made to address these concerns and the Legislature willfully

disregarded its constitutional duties and purposely passed unconstitutional legislation. The

circumstances surrounding the passage of SB 319 is similar to that discussed in Forward

Mont., in which the legislature violated the Constitution by adding unrelated amendments

which changed both the subject and purpose of SB 319 onto an already-existing bill during

a free conference committee. See generally Forward Mont., ¶¶ 24-34. While Forward

Mont. discussed only the unconstitutionality and impropriety of §§ 21 and 22 of SB 319,

§ 2, at issue here, was yet another amendment loaded onto SB 319 during that same free

conference committee. To award fees to the plaintiffs who successfully challenged §§ 21

and 22 of SB 319, while denying fees to these Plaintiffs who successfully challenged § 2

of the very same bill, passed under the exact same circumstances we found warranted a fee

award in Forward Mont., as the Chief Justice’s Concurrence would have us do in this case,

would single these Plaintiffs—largely college students and student groups—out for

disparate treatment simply because they vindicated a different constitutional obligation

blatantly disregarded by the Legislature. We would also note that these Plaintiffs did in

fact challenge § 21 of SB 319 in their Complaint, but their challenge to that section was

mooted after Judge Menahan found § 21 unconstitutional in Forward Mont. and the State

did not appeal that determination. The parties who successfully challenged § 21 of SB 319

in the other litigation were awarded attorney fees under the private AG doctrine. Forward

Mont., ¶ 44. While the Chief Justice claims the “proceedings and policies vindicated do

46
not present the same equitable considerations that were present” in Forward Mont.,

McGrath Concurrence, ¶ 71 n.1, such an assertion is unmoored from the factual record.

Once again, § 2 of SB 319, unrelated to the bill’s original subject and purpose, was loaded

onto the bill during the free conference committee, in a move by the Legislature which was

so clearly unconstitutional we determined it demonstrated the bad faith of the Legislature

and necessitated an award of attorney fees to the plaintiffs of Forward Mont. Due to those

actions, this Court concluded that attorney fees were proper “because of the process

through which the unconstitutional sections of this Bill came to be: an obviously unlawful

Bill adopted through willful disregard of constitutional obligations.” Forward Mont., ¶ 20.

The factual record regarding the passage of § 2 of SB 319 is identical to that of §§ 21 and

22 of SB 319—“an obviously unlawful Bill adopted through willful disregard of

constitutional obligations.” Forward Mont., ¶ 20. It is disingenuous to suggest that these

Plaintiffs do not deserve an award of attorney fees for challenging a different section of the

same bill we have already determined warranted fees, merely because they demonstrated

the bill also violated Mont. Const. art. X, § 9(2)(a). And the Chief Justice’s Concurrence

correctly notes that the “point of the private AG doctrine is to reward attorneys who bring

successful public interest litigation that vindicate[s] constitutional interests.” McGrath

Concurrence, ¶ 71 n.1. The Plaintiffs in this case have done just that, vindicating Article

X, § 9’s constitutional guarantee of an independent Board of Regents from three clearly

unconstitutional bills—two of which the State, by not briefing a merits defense on appeal,

concede are unconstitutional infringements of that constitutional guarantee. We simply

note that one of those three bills, SB 319, has already been found by this Court to also

47
violate other constitutional interests, namely “to restrict legislative enactments to those

made known to lawmakers and the public, to prevent legislators and the people from being

misled, and to guard against obfuscation by the Legislature[.]” Forward Mont., ¶ 35. We

found the vindication of these interests in that case was “sufficiently weighty to justify

fees.” Forward Mont., ¶ 35. 17 Successfully vindicating the constitutional independence

of the Board of Regents from a flood of legislation which set out to destroy that

independence is no less weighty an interest than those found in Forward Mont., and, in any

event, our caselaw does not require us to assess the strength or societal importance of a

constitutional interest and decide whether that interest is as important as other

constitutional interests. There can be no serious contention these plaintiffs did not

17
The Attorney General settled an attorney fee issue, and the State paid $825,000 in fees, in a
recent case that may have shown similar equitable considerations as Forward Mont. (although the
basis for fees in the case was under 42 U.S.C. § 1988(b) rather than the private attorney general
doctrine). In Portland GE v. Nw. Corp., No. CV-21-47, 2023 U.S. Dist. LEXIS 100188 (D. Mont.
June 8, 2023), the district court dismissed the attorney fee issue after the
Attorney General settled with plaintiffs. See SET0001056, April 17, 2023 (available at
https://montana.servicenowservices.com/citizen?id=settlements). That case involved two Bills
(SB 265 and SB 266) passed by the 2021 Legislature that were found clearly unconstitutional
under multiple provisions of the United States and Montana Constitutions. See Portland GE,
No. CV-21-47, 2022 U.S. Dist. LEXIS 177849 (D. Mont. Sept. 28, 2022); Portland GE, No. CV
21-47, 2022 U.S. Dist. LEXIS 191119 (D. Mont. Oct. 18, 2022) (adopting magistrate’s findings
and recommendations in full). Specifically, SB 265 was found unconstitutional as applied under
the Contracts Clause of the United States and Montana Constitutions, and SB 266 was found
unconstitutional under the Commerce and Contracts Clauses of the United States Constitution—
partly due to the Bills’ explicit discriminatory purposes. Portland GE, No. CV-21-47, 2022 U.S.
Dist. LEXIS 177849, *7–*8, *85–*88, *92 (D. Mont. Sept. 28, 2022); Portland GE, No. CV
21-47, 2022 U.S. Dist. LEXIS 191119 (D. Mont. Oct. 18, 2022) (adopting magistrate’s findings
and recommendations in full). I make no comment on whether the three Montrust factors would
have been satisfied in that case but only note the similarity of the equitable factors present in that
case, here, and in Forward Mont.
48
successfully bring public interest litigation which vindicated important constitutional

interests.

¶69 Here, we do not assert attorney fees are proper because of the Attorney General’s

defense of the law, which primarily involved repeated challenges to Plaintiffs’ standing.

Rather, attorney fees are proper because of the process through which the unconstitutional

bills came to be: patently unconstitutional bills adopted through willful disregard of

constitutional obligation. See Forward Mont., ¶ 20. “If the [Private AG] Doctrine was

eliminated where the Legislature has willfully disregarded its constitutional duties and

purposefully passed unconstitutional laws, vindicating [] important constitutional rights

through litigation would not be feasible.” Forward Mont., ¶ 24. Assessing fees when

plaintiffs successfully challenge legislation which came about through such

unconstitutional means may serve to deter wrongdoing in the first place. Chief Justice

McGrath’s Concurrence asserts “the evidence is not clear that the Legislature ‘willfully

disregarded its duties,’” regarding Article X, § 9, in the same manner it did regarding

Article V, § 11, in Forward Mont., because Bd. of Regents had not been issued at the time

the challenged bills were passed. McGrath Concurrence, ¶ 75. This Court issued Bd. of

Regents on June 29, 2022. In the present case, the State filed its motion for summary

judgment on July 1, 2022, after Bd. of Regents was decided, and defended each of the three

bills on their merits even though, as the Chief Justice notes, the Board’s authority is clear

after our holding in Bd. of Regents. The State thereafter filed a reply brief, again defending

the bills on their merits in the face of our holding in Bd. of Regents, on August 22, 2022.

And on appeal, the State, though incorrect on this point, asserts it “does not concede that

49
HB 349 and SB 319 are unconstitutional.” And as is readily apparent from the discussion

of Issue Two, above, the State still attempts to defend HB 112 on its merits even though,

as the Chief Justice notes, such a merits defense is foreclosed by Bd. of Regents. Though

the Chief Justice contends the “Attorney General’s defense of the law [was not] in bad

faith,” McGrath Concurrence, ¶ 76, by the Chief Justice’s own logic, it seems apparent the

State’s repeated attempts to defend the challenged bills on their merits—expending the

time and money of the Plaintiffs in this case—after our holding in Bd. of Regents would be

evidence of the State acting in bad faith. In this case, the Plaintiffs have “successfully

litigated issues of importance to all Montanans and incurred significant legal costs.”

Montrust, ¶ 69. Forcing the Plaintiffs to bear the brunt of the significant legal costs

incurred to vindicate the Montana Constitution’s guarantee of an independent Board of

Regents and an MUS free from legislative micromanaging would be a “substantial

injustice.” Montrust, ¶ 69 (quoting Porter v. Porter, 155 Mont. 451, 457, 473 P.2d 538,

541 (1970)). As such, we would conclude the District Court’s denial of private AG

doctrine fees was inappropriate and fees should have been awarded to Plaintiffs.

Justice Gustafson, joined by Justice McKinnon, disagreeing with the District Court

Judgment as to attorney fees

/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON

50
Chief Justice Mike McGrath, joined by Justice Baker, concurring with the Opinion as to

Issues One and Two and agreeing with the District Court decision as to Issue Three,

attorney fees.

¶70 On the cross-appeal, I would affirm the District Court for two reasons: (1) the

equities present in Forward Montana, which weighed in favor of awarding attorney fees,

are not present here, and (2) the District Court did not abuse its discretion in finding under

the second Montrust factor that “it may not have been necessary for Plaintiffs to initiate

this action as the Board could have asserted its own authority.”

¶71 Further, I note that other equitable considerations can be relevant beyond the three

Montrust factors, such as bad faith, that may be used as a guidepost in determining fee

awards. Forward Mont., ¶ 25. In Forward Montana, the predicate for our award of

attorney fees—in addition to the plaintiffs’ showing under the three Montrust factors—was

“the bad faith of the Legislature in enacting unconstitutional laws.” Forward Mont., ¶ 30.1

¶72 Generally, we use caution in awarding fees against the State under the private AG

doctrine so as not to improperly interfere with the separation of powers. Forward Mont.,

1
Justice Gustafson argues that because SB 319, §§ 2 and 21, were other amendments loaded onto
SB 319 during the same free conference committee that we held justified fees in Forward
Montana, fees should at least be justified for Plaintiffs’ challenge of SB 319, §§ 2 and 21, here.
Opinion, ¶ 68. However, Plaintiffs here challenged this section under Article X, Section 9(2)(a),
of the Montana Constitution. They did not raise any claims under Article V, Sections 11(1) and
(3), as the plaintiffs in Forward Montana did. The point of the private AG doctrine is to reward
attorneys who bring successful public interest litigation that vindicate constitutional interests.
Serrano, 569 P.2d at 1313–14. We cannot award fees to Plaintiffs here based on vindication of
Article V, Section 11, interests, when they did not raise or vindicate any claims under Article V,
Section 11. Under the claims Plaintiffs did raise, I would hold the proceedings and policies
vindicated do not present the same equitable considerations that were present in Forward Montana
as discussed further below.

51
¶¶ 19, 25, 30; W. Tradition P’ship, ¶¶ 16–17. In Western Tradition Partnership, where the

only predicate for attorney fees besides the three Montrust factors was the Attorney

General’s defense of a law that we determined to be constitutional, the Attorney General’s

defense of the law did not overcome our caution in awarding fees against the State even

though the United States Supreme Court disagreed with our opinion on the merits.

W. Tradition P’ship, ¶ 20; Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 132 S. Ct.

2490 (2012).2

¶73 It is not uncommon for courts to reference other equitable considerations that could

support the award of fees against the State—whether that be the bad faith of the Attorney

General in defending the law, the bad faith of the Legislature in enacting the law, the State’s

breach of fiduciary duties, or some other. See, e.g., Montrust, ¶¶ 51, 58; W. Tradition

P’ship, ¶ 20; Forward Mont., ¶ 30; compare Burns, ¶ 24 (awarding fees based on a strong

showing under the three Montrust factors alone). The District Court’s reference to

§ 25-10-711, MCA, regarding the award of costs and reasonable attorney fees is a good

example.3

2
Although Western Tradition Partnership clearly made a strong showing under the three Montrust
factors, which may have supported an award of fees on its own, there were other equitable factors
in that case that precluded fees—namely, “equally significant” interests and unique Montana
constitutional principles in defense of the law. W. Tradition P’ship, ¶ 20.
3
While the private AG doctrine is not dependent on § 25-10-711, MCA, for an award of fees, it
can provide a guidepost to courts in ordering such awards. See Forward Mont., ¶ 30. As Serrano
discusses, “[t]he ‘private attorney general’ theory must be accepted or rejected on its own merits—
i.e., as a theory rewarding the effectuation of significant policy.” Serrano, 569 P.2d at 1314 n.16.

52
¶74 Here, there was no showing of the same equitable factors that led to our decision in

Forward Montana. The only instance of possible Legislative bad faith that Justice

Gustafson notes is that Legislative Services put the Legislature on notice that HB 112 and

HB 349 may violate Article X, Section 9, of the Montana Constitution and that the

Legislature made no effort to address these concerns. Opinion, ¶ 68. But the legal review

note that Legislative Services attached to these Bills cited only to Bd. of Regents v. Judge,

168 Mont. 433, 543 P.2d 1323 (1975), and noted that, because of Judge, the Bills “may

raise potential questions about whether this bill conforms with Article X, section (9)(2)(a),

of the Montana Constitution.”

¶75 Judge did not put the Legislature on clear notice that the laws at issue here were

unconstitutional such that we can say the Legislature was acting in bad faith in enacting

them. In Judge, we examined the legislative appropriations power in relation to the

authority granted to the Board of Regents. We held that the Legislature clearly had the

power to appropriate funds to the Montana University System through public operating

funds of the State, and to itemize expenditure of these appropriations. Judge, 168 Mont.

at 446, 449–50, 543 P.2d at 1331–33. Nevertheless, we held that the Legislature could not

do indirectly through its appropriations what it would be impermissible to do directly.

Judge, 168 Mont. at 450, 543 P.2d at 1333. At the time these Bills were passed, the

decision in Board of Regents had not been issued and of course not referenced by the

legislative staff. Here, the evidence is not clear that the Legislature “willfully disregarded

its constitutional duties” with regards to Article X, Section 9, of the Montana Constitution

53
in this case as it did with Article V, Section 11, in Forward Montana. Opinion, ¶ 69;

see Forward Mont., ¶ 24.

¶76 Nor was the Attorney General’s defense of the law in bad faith. The Attorney

General focused most of its appellate arguments on Plaintiffs’ standing, a threshold

jurisdictional requirement. This argument was clearly not outside the bounds of legitimate

argument as it convinced two members of the Court. Cf. W. Tradition P’ship, ¶ 20.

¶77 We also noted in Forward Montana that there are situations where fees may be

awarded against the State where there is no bad faith found to effectuate the purposes of

the private AG doctrine—but this is not that case. Forward Mont., ¶ 30. For such a case,

Plaintiffs would have to make a strong presentation of evidence under the three Montrust

factors alone or discuss other equitable factors that support an award of fees.

See, e.g., Burns, ¶ 24 (awarding attorney fees against county based on the three factors

alone). The District Court did not abuse its discretion in finding that equitable

considerations did not weigh in favor of attorney fees.

¶78 In addition, I would hold that the District Court appropriately determined there was

not an adequate showing under the second Montrust factor to support an award of attorney

fees against the State.4 Even when the plaintiff vindicates important constitutional

interests, “we still look at the necessity for private enforcement.” Forward Mont., ¶ 36.

4
I do not discuss the first or the third Montrust factors here. I agree with the District Court that
these factors are met and with Justice Gustafson that “[t]here can be no serious contention these
plaintiffs did not successfully bring public interest litigation which vindicated important
constitutional interests” under the first Montrust factor. Opinion, ¶ 68. My concern is with the
second Montrust factor and other equitable considerations that Montana courts generally look to

54
¶79 As noted by the District Court, there was an independent entity of State government

here who could have enforced its constitutional authority—the Board of Regents. The

Board is often willing and able to defend its constitutional authority. See, e.g., Bd. of

Regents, ¶ 6. Plaintiffs here did not make the necessary showing that the Board was

unwilling or unable, for whatever reason, to challenge these laws besides a conclusory

argument that Plaintiffs’ lawsuit was necessary because the Board had not yet brought an

action. Other than simply observing that the Board of Regents never got involved in this

case, Justice Gustafson’s resolution of the second Montrust factor fails to examine the

record and provides no authority or analysis to inform its decision. A party is not relieved

from its burden of showing why private enforcement was necessary by merely filing suit

first.

¶80 Plaintiffs filed suit a month before HB 112 and SB 349 were set to go into effect.

Justice Gustafson reasons that because the Board did not intervene or take any other legal

action in the year and a half between filing and summary judgment, private enforcement

was necessary. Opinion, ¶ 61. But that is mere speculation. We could just as easily

speculate that the Board was preparing to challenge the laws when Plaintiffs filed their

lawsuit;5 that the Board decided to watch the lawsuit closely—prepared to intervene or join

in addition to the three Montrust factors that were not presented here. Accord Serrano, 569 P.2d
at 1314 (suggesting three basic factors courts consider in awarding fees under the private AG
doctrine, but in no means precluding other considerations such as those we often look to as
discussed above).
5
For example, the Board of Regents filed suit against HB 102 just four days before a main
provision of the Bill was set to go into effect. Bd. of Regents, ¶¶ 5–6.

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the case as necessary at any point to protect its authority—but decided not to interfere if

Plaintiffs were doing everything the Board would have done, either to save money, to save

itself from political reprisal, or for whatever other reason; and that the Board decided that

“[public] enforcement was [not] necessary” due to Plaintiffs’ quick filing and litigation

skills.

¶81 The Board has shown that it is willing to defend its constitutional authority. It was

not an abuse of discretion for the District Court to find that “it may not have been necessary

for Plaintiffs to initiate this action as the Board could have asserted its own authority,”

when Plaintiffs’ only argument under this factor was that the Attorney General defended

the laws and the Board had not yet sued. The Board may have filed suit if it had been given

the chance, but we do not know because Plaintiffs filed their lawsuit first. Justice

Gustafson’s reasoning here would allow attorney fees even though Plaintiffs made no

showing that their private lawsuit was necessary to vindicate important public policy.

See Forward Mont., ¶ 15.

¶82 While it is “salient” that the State provided no analysis on a factor, thus conceding

it, see Clark, ¶ 14; Opinion, ¶ 61, it does not relieve Plaintiffs of their initial burden to show

that the second Montrust factor is met or their burden on appeal of showing that the District

Court abused its discretion in finding that it was not met. Forward Mont., ¶ 15.

Importantly here, Plaintiffs presented no evidence that this lawsuit was—for whatever

reason—necessary for purposes of the award of fees under the private AG doctrine and

thus did not overcome their initial burden before the District Court.

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¶83 “Necessity” is a strong word and demands more than the speculation offered here.

When the Attorney General is the only public agency involved in a constitutional

challenge, this consideration easily may be satisfied. But when there is an independent

public enforcement entity, especially one that has shown its willingness to protect the

public interest, more is required. We do not overturn a trial court’s discretionary ruling

absent a showing that the court acted arbitrarily or without conscientious judgment.

In re Est. of Burns, 2023 MT 253, ¶ 9, 414 Mont. 365, 540 P.3d 1029. Without any

evidence to substantiate a finding that the Board declined to bring action or even had a

chance to consider it, Plaintiffs have not met their burden on appeal to demonstrate an

abuse of discretion by the District Court.

¶84 I would affirm the District Court on not awarding attorney fees. The equities do not

favor awarding attorney fees, nor have Cross-Appellants demonstrated sufficient necessity

under the second prong of the Montrust factors to support finding an abuse of discretion.

¶85 The lack of a majority on Issue Three necessitates that the District Court order stand.

/S/ MIKE McGRATH

Justice Beth Baker joins in the Opinion of Chief Justice McGrath.

/S/ BETH BAKER

Justice James Jeremiah Shea, concurring with the Opinion as to Issues 1 and 2, and

affirming the District Court’s decision as to Issue 3, attorney fees:

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¶86 I concur with the majority Opinion on Issues One and Two. As to Issue Three,

although I do not fully concur with Chief Justice McGrath’s analysis, under the specific

facts of this case I agree with his assessment that the District Court did not abuse its

discretion by determining that the second Montrust factor was not satisfied because “it may

not have been necessary for Plaintiffs to initiate this action as the Board could have asserted

its own authority.” McGrath Opinion. ¶ 70.

/S/ JAMES JEREMIAH SHEA

Justice Jim Rice, dissenting.

¶87 The Court holds members of the university community are “proper parties” to this

lawsuit and therefore entitled to vindicate the Board of Regents’ authority, even when the

Board itself has not decided to do so. Opinion, ¶ 39. The Court arrives at this conclusion

by reasoning that, as members of the university community, the Plaintiffs have a sufficient

interest in preventing any alleged infringement of the authority of the Board, here by the

Legislature, to maintain this litigation. I disagree with these conclusions and therefore

dissent.

¶88 While standing to bring a claim is a threshold jurisdictional requirement, the inquiry

here is unique, because the basis of the claim itself is a constitutional creation. In contrast

to general litigation, this matter arises from the particulars of Article X, § 9(2)(a), of the

Montana Constitution, which states:

The government and control of the Montana university system is vested in a
board of regents of higher education which shall have full power,

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 responsibility, and authority to supervise, coordinate, manage, and control
the Montana university system and shall supervise and coordinate other
public educational institutions assigned by law.

¶89 This provision provides that “full power, responsibility, and authority” to

“supervise, coordinate, manage, and control” the university system “is vested” in the Board

of Regents. The power and clarity of the plain language of this provision should not be

overlooked; it addresses and vests only the Board with full authority to control the

university system, and no one else. Indeed, no one else—students, faculty, school

presidents and administrators, staff, contractors, or any other person—is even mentioned

by the provision. It exclusively addresses the Board of Regents and exclusively grants the

“full” authority to this singularly referenced entity—the Board—to exclusively govern

educational institutions. In contrast to the text, the Court holds that this “full power” may

be exercised by anyone in “all parts” of the broad and amorphous “university community”

by initiating a lawsuit in the Board’s place, and with its powers.

¶90 The constitutional history of Article X, § 9(2)(a) explains the origins and purpose

of this unequivocal text.1 Prior to adoption of the 1972 Constitutional Convention,

authority over higher education in Montana resided with the Legislature, who maintained

“general control and supervision of the State University . . . [with] powers and duties [as]

1
“The intent of the Framers controls our interpretation of a constitutional provision.” Bd. of
Regents of Higher Educ. of Mont. v. State, 2022 MT 128, ¶ 11, 409 Mont. 96, 512 P.3d 748 (citing
Butte-Silver Bow Local Gov’t v. State, 235 Mont. 398, 768 P.3d 327 (1989)). While “intent must
first be determined from the plain language of the words used,” Bryan v. Yellowstone Cnty. Elem.
Sch. Dist. No. 2, 2002 MT 264, ¶ 23, 312 Mont. 257, 60 P.3d 381, we also may consider the
“circumstances under which the Framers drafted the Constitution, the nature of the subject matter
they faced, and the objective they sought to achieve.” Nelson v. City of Billings, 2018 MT 36,
¶ 14, 390 Mont. 290, 412 P.3d 1058.

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prescribed and regulated by law.” Mont. Const. of 1889, art. XI, § 11. However, the

delegates to the 1972 Constitutional Convention effected a significant governance change,

following their debate about whether authority over the higher education system should

remain with the Legislature or be vested with a separate and autonomous board of regents:

Now, the basic question before us is still the same one that always has been,
and that is, are we going to give to the board of regents the ability to manage
the university system? Are we going to make them a real board of regents,
with the power and the independence of the Legislature and of the
Executive . . . .

Montana Constitutional Convention, Verbatim Transcript, March 13, 1972, Vol. VI,

p. 2127. At the heart of this debate was the proposal to make the Board a “body corporate”

with autonomy and self-regulating authority:

[The proposed provision] generally grants right to the body to govern its own
internal operations, and that should be emphasized. That is what the keys to
all of this is about, the power to govern its own internal operations,
according to the articles of charter or incorporation—in other words, the
grant of power.

Montana Constitutional Convention, Verbatim Transcript, March 11, 1972, Vol. VI,

p. 2053 (emphasis added). This view—that “the power to govern its own internal

operations” should rest with the Board—prevailed at the Convention, resulting in approval

of Article X, § 9(2)(a) to give the Board “full power” to autonomously manage the affairs

of the MUS. This Court has since recognized and upheld the Board’s independent

rulemaking authority. See Sheehy v. Comm’r of Political Practices for Mont., 2020 Mont.

37, ¶¶ 29-31, 399 Mont. 26, 458 P.3d 309 (holding that the Commissioner of Political

Practices did not have jurisdiction to enforce the Ethics Code over independent rulemaking

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bodies like the Board); Bd. of Regents v. Judge, 168 Mont. 433, 454, 543 P.3d 1323, 1335

(1975) (rejecting a condition restricting salary increases for MUS presidents because it

would “den[y] the Regents the power to function effectively by setting its own personnel

policies and determining its own priorities.”).

¶91 Our recent decision in Board of Regents of Higher Education of Montana v. State is

likewise consistent. There, the Board brought a challenge to HB 102, which could have

interfered with the Board’s ability to regulate concealed and open carry of firearms on

MUS campuses, about which the Board had previously adopted policies. Bd. of Regents,

¶¶ 4-5. This Court struck down HB 102 as unconstitutional, reasoning the provision would

“give the Legislature control and supervision over MUS campuses and render the Board

ministerial officers with no true authority other than to effectuate the Legislature’s will.”

Bd. of Regents, ¶ 19 (emphasis added). This was because “[s]uch application directly

contradicts the constitutionally granted powers of the Board and undermines the Board’s

ability to govern the MUS . . . .” Bd. of Regents, ¶ 19. Our holding upheld the critical need

for the Board to exercise its expertise and authority within the sphere of its specialized

governance, as recognized by the 1972 Convention:

Higher education is not simply another state service. The administrative
structure of higher education cannot be considered an ordinary state agency.
The unique character of the college and university stands apart from the
business and usual [sic] of the state.

Montana Constitutional Convention, Verbatim Transcript, March 11, 1972, Vol. VI,

p. 2053. The objective of the Constitutional Convention was to create an autonomous

governing body that could “make long-range plans which are appropriate to the needs of

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higher education and free from short-term political whims.” Montana Constitutional

Convention, Verbatim Transcript, March 11, 1972, Vol. VI, p. 2055.

¶92 However, in the Court’s view, the Board is just one of many intended beneficiaries

of Article X, § 9. I disagree, and draw from the plain language that, more than merely an

intended beneficiary, the Board is the entire subject of the provision, and its autonomous

role is the purpose of the provision. From there, the Court reasons that “[w]hile the Board

of Regents would also have standing to challenge the legislation, that does not mean the

Board is the only proper party who may challenge the legislation . . . .” Opinion, ¶ 39. The

Court thus concludes the Plaintiffs have standing as members of the university community

to enforce the Board’s powers by challenging the Legislature’s adoption of HB 349, HB

112, and SB 319. As we have explained, standing depends on “whether the constitutional

or statutory provision . . . can be understood as granting persons in the plaintiff’s position

a right to judicial relief.” Schoof v. Nesbit, 2014 MT 6, ¶ 21, 373 Mont. 226, 316 P.3d 831

(quoting Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197 (1975)). Nothing within the text of

Article X, § 9(2)(a) or within the constitutional history provides any support whatsoever

for the proposition that members of the expanded and amorphous “university community”

are intended to have any right to act on behalf of the Board, or to exercise its full authority,

including by maintaining a lawsuit on behalf of the Board. In my view, the text of Article

X, § 9(2)(a) and the constitutional history leads to the exactly opposite conclusion—that it

is obvious such standing does not exist. Of course, the Plaintiffs are free to pursue their

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own individual claims regarding any unlawful impact HB 349, HB 112, or SB 319 has had

upon them. However, they are not entitled to act as the Board of Regents.

¶93 In my view, the Court also misunderstands the nature of Article X, § 9(2)(a). This

provision is not about the Board’s relationship with members of the university community,

but rather about the Board’s authority within the State’s governmental structure to govern

the university system autonomously—without interference from others. While members

of the university community may be affected by Board decisions, including when the Board

would decide to litigate or not, they have no standing to step into the Board’s shoes and

exercise the Board’s “full power” on their own behalf. It could be said that the power to

litigate is the power to control, or even to destroy. Decisions about when to litigate or

when to tolerate, when to settle or when to pursue further relief, what trial strategy to

employ, when to confess judgment and when to accept another’s confession, and more, all

can lead to case resolutions that create binding precedents which shape and define the

parameters of the Board’s authority. Such decisions are inherent to the “full power,

responsibility, and authority to supervise, coordinate, manage, and control the Montana

university system,” and necessarily should be made exclusively by the Board itself, not by

an amorphous group of surrogates.

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¶94 In its briefing in the 2022 Board of Regents case, the Board repeatedly described the

authority granted to it by Article X, § 9(2)(a), as “exclusive.”2 The Board there explained

how that exclusive authority must work: “[o]nly one party can have ‘full power’—

otherwise, the power would not be ‘full.’ With respect to the supervision, coordination,

management, and control of the MUS, the Constitution vests that ‘full power’ with the

Board.” Board of Regents Resp. Br., 21-0605, p. 31, filed Mar. 14, 2022 (emphasis added).

The “one party” who is empowered to exclusively act with regard to the university system

is the Board, not the Plaintiffs. The Court’s holding today opens Montana’s courtrooms to

whoever in the broad and amorphous “university community” would desire to utilize the

Board’s exclusive and extensive authority, as if they were the Board, and pursue their own

purposes, thus disbursing the Board’s exclusive authority to others. This could result in

the Board being subjected to and bound by rulings in cases it did not bring and by case

settlements it did not agree to—whether or not they align with the Board’s specific

expertise to provide for the university system’s mission and interests as a whole—and thus

potentially “render the Board ministerial officers” with regard to those matters. Bd. of

Regents, ¶ 19. In my view, this is an improper departure from the plain language of Article

X, § 9(2)(a) and the constitutional history underlying that provision.

2
See Board of Regents’ Resp. Br., 21-0605, p. 1, filed Mar. 14, 2022 (“The Board possesses the
exclusive authority to ensure the health and stability of the MUS.”) (emphasis added); Board of
Regents Resp. Br., 21-0605, p. 29 (“Montana public policy establishes that the Board has ‘full’
and exclusive power to control MUS.”) (emphasis added) (capitalization omitted).

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¶95 In response, the Court contends the Plaintiffs have pursued individual claims “[i]n

this very case.” Opinion, ¶ 38. However, I am referring to either constitutionally-based

or statutorily-based claims Plaintiffs could bring for direct violations of rights in their

individual capacities, not claims premised upon violation of the Board’s constitutional

authority.

¶96 The Court also cites Missoula City-County Air Pollution Control Board v. Board of

Environmental Review, 282 Mont. 255, 937 P.2d 463 (1997), in support of the proposition

that Plaintiffs can properly bring this suit under the Board’s authority, but that case

provides no authority for the claims brought here. In Air Pollution Control Board, the local

air pollution board filed a MAPA-governed petition for judicial review of a decision made

by the State Board of Environmental Review. 282 Mont. at 258, 263, 937 P.2d at 465, 468

(local board’s petition “was brought pursuant to Title 2, Chapter 4, part 7, MCA, ‘Judicial

Review of Contested Cases.’”). In filing the petition, the local board claimed, pursuant to

MAPA, the status of a “‘person’ aggrieved by the State Board’s” order. Air Pollution

Control Board, 282 Mont. at 258, 937 P.2d at 465. Citing the purpose of local boards as

provided by statute, we held the local board satisfied MAPA’s definition of an aggrieved

“person” as that term was defined in § 2-4-102(8), MCA. Air Pollution Control Board,

282 Mont. at 262, 937 P.2d at 467-68. Thus, we concluded the local board had standing

and could participate to challenge the administrative decision as an aggrieved person under

MAPA, just like an individual aggrieved by the State Board’s decision could. Air Pollution

Control Board, 282 Mont. at 262, 937 P.2d at 467-68.

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¶97 Clearly, satisfying the statutory qualifications for participation as an “aggrieved

person” in a MAPA proceeding provides no authority to confer standing under the specific

constitutional provision at issue here. The Board of Regents’ authority is uniquely sourced

and exclusively prescribed in the Constitution: “[t]he government and control of the

Montana university system is vested in a board of regents of higher education which shall

have full power, responsibility, and authority to supervise, coordinate, manage, and

control the Montana university system.” Mont. Const. art. X, § 9(2)(a) (emphasis added).

The decision to create a specialized board itself “recognizes the expertise that those

appointed to positions on the board provide.” Weems v. State, 2023 MT 82, ¶ 40, 412

Mont. 132, 529 P.3d 798. This principle accords with the constitutional history in this case

because, as noted above, the Constitutional Convention specifically recognized “[t]he

unique character of the college and university” and the need for the Board of Regents’

specialized authority. Montana Constitutional Convention, Verbatim Transcript,

March 11, 1972, Vol. VI, p. 2053. The Plaintiffs cannot point to any intention, either

within the text of Article X, § 9, or within the constitutional history leading to its adoption,

to serve as a vehicle for vindicating individual interests. None exists, and therefore we

should not insert those interests within that provision.

¶98 I would hold the Plaintiffs lack threshold standing under Article X, § 9(2)(a) to bring

an action in the exercise of the Board’s exclusive authority, reverse the District Court, and

order dismissal of the action.

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 /S/ JIM RICE

Justice Dirk Sandefur joins in the dissenting Opinion of Justice Rice.

/S/ DIRK M. SANDEFUR

Justice Dirk Sandefur, dissenting in part.

¶99 I first and foremost concur with Justice Rice that the Plaintiffs lacked jurisprudential

standing to challenge the subject legislation as an infringement of the constitutional

authority of the Montana Board of Regents. However, if such threshold standing exists as

determined by the Majority, I further concur that the challenged legislation

unconstitutionally infringes on the constitutional authority of the Montana Board of

Regents for the reasons stated in the Majority Opinion.

/S/ DIRK M. SANDEFUR

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