No. 01-633
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 242
ROB GRABOW,
Petitioner and Appellant,
v.
THE MONTANA HIGH SCHOOL ASSOCIATION,
a nonprofit corporation, LIVINGSTON HIGH SCHOOL
DISTRICT NO. 1, LIVINGSTON HIGH SCHOOL
DISTRICT NO 1 SCHOOL BOARD, and PARK HIGH SCHOOL,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen M. Frankino, Hughes, Kellner, Sullivan & Alke, Helena, Montana
For Respondent Montana High School Association:
Jock O. Anderson, Gough, Shanahan, Johnson & Waterman, Helena, Montana
For Respondent Livingston School District:
Laurence R. Martin, Felt, Martin, Frazier, Jacobs & Rapkoch, Billings, Montana
For Amicus Superintendent of Public Instruction:
Jeffrey A. Weldon, Office of Public Instruction, Helena, Montana
For Amicus Montana School Boards Association:
Elizabeth A. Kaleva, Montana School Boards Association, Helena, Montana
Argued and Submitted: May 9, 2002
Decided: November 4, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Rob Grabow sought a declaratory judgment and injunctive relief
against the Montana High School Association (the “MHSA”) in the
First Judicial District Court, Lewis and Clark County. The court
denied Grabow’s request, and he immediately appealed. We granted
his request for a preliminary injunction by our Order dated
December 23, 1999. On the merits of his appeal, we declared one
issue moot but remanded to the District Court on the others. On
remand, the District Court ruled against Grabow. Grabow appeals
and we affirm.
¶2 The following issues are dispositive of this appeal:
¶3 1. Did our Order of December 23, 1999, entitle Grabow to
attorney’s fees?
¶4 2. May the Livingston School District contract with the MHSA
to consent to be bound by the MHSA’s rules?
BACKGROUND
¶5 For purposes of this appeal, we will summarize the facts,
which we more fully set forth in Grabow v. Montana High Sch. Ass’n,
2000 MT 159, ¶¶ 6-13, 300 Mont. 227, ¶¶ 6-13, 3 P.3d 650, ¶¶ 6-13.
¶6 Grabow enrolled at Park High School in Livingston, Montana, in
the fall of 1999. After he enrolled, the MHSA informed Grabow that
he could not participate in basketball because of its semester
rule. The semester rule essentially states that students each have
eight consecutive semesters within which they may participate in
MHSA contests. Grabow, the MHSA determined, did not meet this
requirement.
2
¶7 The MHSA is a nonprofit association that has existed since
1921. It supervises, regulates and administers interscholastic
activities between its member high schools. Delegates from the
member schools meet each year to conduct the business of the MHSA,
which a staff and seven member Board of Control then administer.
The MHSA classifies schools into four classifications; each of
which, along with the Montana School Boards Association, Office of
Public Instruction and Governor, elects one member of the Board of
Control.
¶8 All public and private high schools in Montana that the
Montana Board of Public Education accredits may join the MHSA.
Membership is voluntary and has consisted of 182 public and private
schools during the relevant times of this appeal. Park High
School, which Grabow attended, is a member of the MHSA. The Board
of Trustees (the “Board”) for the school district in which Park
High School is located meets each year to consider and vote on
whether to rejoin the MHSA. Each year, the Board renews its
membership by signing a membership form.
¶9 Before the MHSA’s annual meeting, the Board receives and
considers any proposed changes to the MHSA’s rules and regulations.
The Board then instructs its representative on how to vote. As a
member of the MHSA, the Livingston School District also had the
power to submit proposed changes at the MHSA’s annual meeting.
¶10 Grabow filed a complaint with the District Court seeking
relief from the MHSA’s decision to declare him ineligible to play
basketball. The District Court ruled against Grabow, and Grabow
3
appealed. On appeal, we dismissed portions of Grabow’s appeal as
moot. We remanded, however, Grabow’s claims that he was entitled
to attorney’s fees and that the Board had unlawfully delegated its
discretionary functions to the MHSA. The District Court ruled
against Grabow on both issues. Grabow now appeals.
STANDARD OF REVIEW
¶11 When reviewing a district court's conclusions of law, we
determine whether they are correct. See Montanans for the
Responsible Use of the School Trust v. State ex rel. Board of Land
Comm'rs, 1999 MT 263, ¶ 11, 296 Mont. 402, ¶ 11, 989 P.2d 800, ¶
11; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470,
474-75, 803 P.2d 601, 603.
ISSUE ONE
¶12 Did our Order of December 23, 1999, entitle Grabow to
attorney’s fees?
¶13 Grabow argues that our December 23, 1999, Order, which granted
him a preliminary and permanent injunction, entitles him to
attorney’s fees under 42 U.S.C. § 1988 and the private attorney
general doctrine. We disagree.
¶14 To receive attorney’s fees under § 1988, a party must prevail
in an action to enforce 42 U.S.C. § 1983. See 42 U.S.C. § 1988.
The District Court concluded that Grabow had not “prevailed” in
this case for purposes of § 1988 because he had not received a
final judgment in his favor. Although Grabow cites several cases
that support his argument that receiving injunctive relief amounts
to prevailing under § 1988, his claim still must fail. Even if an
4
award of injunctive relief amounts to prevailing under § 1988, our
order granting him that injunctive relief had nothing to do with §
1983.
¶15 Although Grabow alleges that his Complaint clearly set forth a
§ 1983 claim, it carried no reference to § 1983 or § 1988.
Instead, his Complaint cited only the Montana Constitution and
Montana case law. Grabow nevertheless argues that, although his
Complaint contained no reference to § 1983 or § 1988, the parties
extensively briefed and argued the issue of attorney’s fees under §
1988 before the District Court. The District Court, however,
consistently ruled against him. He thus clearly cannot claim that
he “prevailed” there.
¶16 As for our Order granting him injunctive relief, we never
cited § 1983, § 1988 or any other federal law. Instead, we cited
exclusively Montana law, like Grabow did in his Complaint. We thus
conclude that Grabow did not prevail under § 1983 and, therefore,
is not entitled to attorney’s fees under § 1988.
¶17 Without a specific contractual or statutory grant, Montana law
typically does not entitle the prevailing party to an award of
attorney fees. See Foy v. Anderson (1978), 176 Mont. 507, 511, 580
P.2d 114, 116. Courts have created exceptions to this rule,
including the private attorney general exception. See School
Trust, ¶ 67. Grabow asserts that our Order entitles him to
attorney’s fees under the three-part test that we set forth in
School Trust. That case, however, involved a controversy in which
the party seeking attorney’s fees had prevailed on the merits
5
before the district court, which we later affirmed. We will not
address the issue of attorney’s fees until a party reaches a final
determination of the underlying controversy in their favor. See
Dreyer v. Board of Trustees (1981), 193 Mont. 95, 99, 630 P.2d 226,
228.
¶18 Here, the District Court neither issued a preliminary
injunction nor reached the merits of Grabow’s claim. In our Order
on Grabow’s petition, we granted an injunction in favor of Grabow
but noted only that Grabow had shown a likelihood of prevailing on
the merits of his appeal. On appeal, we decided that Grabow’s
constitutional argument had become moot.
¶19 Grabow cites several non-Montana cases supporting his argument
that he prevailed in this matter. None, however, bear on the
private attorney general exception as established under Montana
law. We have clearly held that awarding attorney’s fees without a
determination of the merits against the other party “violates the
most fundamental right of due process – the right to appear and be
heard on the merits of their adversaries’ complaint.” See Dreyer,
193 Mont. at 101, 630 P.2d at 229.
¶20 Because our Order did not involve § 1983 and never reached the
merits of Grabow’s claim, we conclude that it does not entitle
Grabow to attorney’s fees.
ISSUE TWO
¶21 May the Livingston School District contract with the MHSA to
consent to be bound by the MHSA’s rules?
6
¶22 The Montana Constitution vests school board trustees with the
power to supervise and control the schools in their district. See
Mont. Const. Art. X, § 8. The Montana Code, in turn, authorizes
trustees to adopt policies and perform any duties necessary to
carry out their legal requirements. See generally §§ 20-3-323 & -
324, MCA. The pivotal question in this appeal is what powers do
trustees have regarding interscholastic athletics.
¶23 The difficulty in answering this question arises in that the
Montana Legislature provides only a single reference to
extracurricular activities. Section 20-5-201(3), MCA, allows
school trustees to exclude students from participating in “school
activities” as a sanction for violating school duties. Grabow
interprets this code section to mean that the board of trustees has
the exclusive power to decide a student’s eligibility to
participate in extracurricular activities. We disagree.
¶24 Section 20-5-201, MCA, enumerates certain duties to which a
pupil must adhere. If a student violates these duties, that code
section sets forth sanctions to which a pupil may become subject.
The subsection that Grabow relies on, subsection (3), states that
“[i]n addition to the sanctions prescribed in this section, the
trustees of a high school district may deny a high school pupil the
honor of participating . . . in school activities.” Grabow argues
that this language entitles only trustees to preclude students from
participating in school activities.
¶25 The scope of this subsection, however, is more limited than
that. Under subsection (3), a trustee may only take action when an
7
“incident or infraction causing the consideration has been
investigated and the trustees have determined that the high school
pupil was involved in the incident or infraction.” Section 20-5-
201(3), MCA. Here, no one alleges that Grabow committed an
incident or infraction. Section 20-5-201(3), MCA, is simply not
applicable to this matter. As we noted above, the Montana Code is
otherwise silent as to the enforcement of eligibility rules.
¶26 Students clearly have the right to participate in
extracurricular activities. See Moran v. School Dist. No. 7,
Yellowstone County (D. Mont. 1972), 350 F.Supp. 1180, 1184. That
right to participate in extracurricular activities is a right that
is subject to constitutional protection. See State ex rel.
Bartmess v. Board of Trustees of Sch. Dist. No. 1 (1986), 223 Mont.
269, 275, 726 P.2d 801, 805. Some entity or group of entities,
therefore, must implicitly have the power to govern the various
aspects of extracurricular activities, of which interscholastic
sports is a part.
¶27 Grabow argues, however, that the Board unlawfully delegates
the authority to govern interscholastic activities by violating a
student’s right to administrative appeal. The Board allegedly does
this by binding itself to the MHSA’s rules and decisions. Grabow
points out that § 20-3-210, MCA, states that the county
superintendent “shall hear and decide all matters of controversy .
. . as a result of decisions of the trustees.” Under the MHSA’s
structure, however, students have no mechanism of administrative
appeal from an MHSA decision. Grabow contends that the Board thus
8
divests students of their right to review by leaving final decision
making authority with the MHSA. Because the legislature never
granted school boards the power to delegate decision making
authority to the MHSA, Grabow asserts that this delegation is
unlawful.
¶28 Other jurisdictions are split on the issue of whether a
voluntary membership in a high school athletic association is an
unlawful delegation of authority. Compare Quimby v. School Dist.
No. 21 of Pinal County (Ariz. Ct. App. 1969), 455 P.2d 1019
(concluding that becoming a member of an association was not a
delegation of governmental power) with Bunger v. Iowa High Sch.
Athletic Ass’n (Iowa 1972), 197 N.W.2d 555 (concluding that
membership was a delegation of power). Ultimately, we find the
Quimby line of reasoning more persuasive. We conclude that becoming
a member of the MHSA is not an unlawful delegation of a
governmental power.
¶29 Competitive interscholastic athletics requires rules for
competition. See Quimby, 455 P.2d at 1021. The MHSA establishes
its rules through the vote of its members. If a school board
disagrees with any of the rules, it may refuse to participate in
the MHSA. Accordingly, the school district makes the rules of the
association its own by participating. See Quimby, 455 P.2d at
1021-22; Anderson v. South Dakota High Sch. Activities Ass’n (S.D.
1976), 247 N.W.2d 481, 484.
¶30 We acknowledge that a school district would undoubtedly have a
difficult time finding other schools against which to compete if it
9
decided to withdraw from the MHSA. Such a consequence, however,
does not render membership in the MHSA involuntary. Instead, it
simply highlights the nature of organized athletics.
Interscholastic competition would simply not exist unless some
independent entity serves as a neutral arbiter to establish and
monitor eligibility rules and the ground rules for play. While the
consequences may weigh on a district’s decision to withdraw from
the MHSA, the district still remains free to do so.
¶31 While school districts may adopt the MHSA’s eligibility rules
as their own, enforcement of these rules is a unique power derived
through mutual agreement that no individual school board possesses.
School boards have no power of supervision or control over schools
outside their own school district. See Mont. Const. Art. X, § 8
(stating that supervision and control by trustees exist “in each
school district” (emphasis added)). The Helena School Board, for
instance, could not enforce eligibility rules on students in Park
High School in Livingston. School boards thus must establish a
neutral referee. In reality, eligibility rules do not exist to
ensure that a district’s own students meet certain requirements.
Such rules ensure that the students of a competing district abide
by the rules.
¶32 The MHSA is thus exercising a power over students that
individual school boards never had. Therefore, although the Board
adopted the MHSA rules as their own, the MHSA’s decision to exclude
Grabow from participating in basketball, in effect, was not the
Board’s own decision. The other school districts effectively made
10
the decision. Section 20-3-210, MCA, only applies to “matters of
controversy arising in the county.” (emphasis added). Therefore,
Grabow has no right to administrative appeal of MHSA decisions
under § 20-3-210, MCA.
¶33 To remedy this lack of administrative review, Grabow suggests
that we order the Office of Public Instruction (the “OPI”) to
review all of the MHSA’s decisions regarding eligibility. No
authority, however, empowers the OPI to review decisions made by
the MHSA. Without a specific legislative mandate, we will not
create an additional level of administrative review. “[T]o the
extent that there is an error and to the extent that the statute
does not accurately reflect the Legislature's clearly expressed
intention, it is appropriate that the Legislature correct the
problem, not the courts.” George v. Montana Bd. of Pardons, 2001
MT 163, ¶ 20, 306 Mont. 115, ¶ 20, 30 P.3d 1065, ¶ 20 (citing State
v. Goebel, 2001 MT 73, ¶ 23, 305 Mont. 53, ¶ 23, 31 P.3d 335, ¶
23).
¶34 While the MHSA may not be accountable to the OPI, any
decisions made by the MHSA still must comply with the constitution.
Simply creating an additional level of administrative review will
not ensure this. Adding additional levels of review instead may
work to a student’s detriment.
¶35 An aggrieved student cannot seek judicial review of an
administrative decision until the student has exhausted his or her
administrative remedies. See § 2-4-702, MCA. This rule allows
administrative agencies to make a factual record and to correct any
11
errors within their specific expertise before a court interferes.
See Bitterroot River Protection Ass'n v. Bitterroot Conservation
Dist., 2002 MT 66, ¶ 22, 309 Mont. 207, ¶ 22, 45 P.3d 24, ¶ 22. We
do this in the interest of both judicial economy and agency
efficiency. See Bitterroot, ¶ 22. If we required a student to
navigate through additional levels of administrative review,
however, the athletic season in which the student wished to play
would likely pass.
¶36 As the system functions now, students may immediately seek
judicial review after the MHSA has reached a final conclusion.
Grabow, for instance, got what he ultimately sought by directly
seeking judicial review: an injunction that allowed him to play
basketball. In reaching our conclusion in this matter, we wish to
emphasize that we neither endorse nor criticize the function of the
MHSA or its eligibility rules. The sole issue before us was
whether the Livingston School District could contract with the MHSA
and thus be bound by its rules; we conclude that it can.
¶37 Affirmed.
/S/ JIM REGNIER
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
12
Justice Jim Rice specially concurring.
¶38 I concur with the Court’s holding herein, although not with
the entirety of the rationale set forth in the discussion of Issue
2.
¶39 I agree with the Court’s conclusion that MHSA exerts a unique
power derived through mutual agreement of the districts, which no
individual school board possesses. I cannot draw from that
conclusion, however, that the decision to exclude Grabow was made
by “the other school districts” and did not implicate the Board of
Trustees for Grabow’s own school. Although a single school
district cannot make interscholastic decisions by itself, that
district nonetheless remains responsible for its decision to
subject its own students to the rules of the Association, and
therefore, cannot escape the consequences of decisions made
pursuant to those rules. As the District Court found, “[w]hen Park
High School submitted its annual dues remittance to the MHSA, it
adopted all of the rules and regulations of the MHSA as its own.”
Therefore, I cannot agree with the rationale that all of the other
school districts were implicated in the decision to exclude Grabow,
but that the Livingston School District was excused from
responsibility for that decision.
¶40 Such a conclusion raises the question of whether the District
extinguished Grabow’s right of appeal to the county and state
superintendents by its delegation of rule enforcement to MHSA.
Grabow contends that a decision to exclude him from athletic
participation is appealable to the county and state superintendents
13
pursuant to § 20-3-210, MCA (1997), but that this right was
extinguished by his District’s participation in MHSA.
¶41 First, it should be remembered that Grabow did not seek such
an appeal in this case and, therefore, he should not be heard to
complain that such an appeal had been denied or extinguished. On
appeal to this Court, he has simply asserted that because “MHSA is
not referenced in any statute . . . there is no appeals process,”
and therefore, he was forced to file for relief directly in the
District Court. However, he did not test the provisions of § 20-3-
210, MCA, by requesting review of MHSA’s decision by the county
superintendent. He did not assert the loss of an appeal in his
complaint filed in District Court, and consequently, the issue was
not addressed by the District Court in its findings of fact and
conclusions of law entered on November 24, 1999. It was not until
March 30, 2001, following this Court’s remand after the first
appeal, that Grabow asserted, in his argument for summary judgment,
that his appeal rights to the county superintendent had been
extinguished by his District’s delegation to MHSA.
¶42 Further, given the nature of Grabow’s claims, the District
Court was the only appropriate forum in which to proceed. Grabow
had asked MHSA to consider his constitutional right to participate
based upon Kaptein v. Conrad School District (1997), 281 Mont.
152, 931 P.2d 1311, and when MHSA declined to do so, he filed a
complaint in the District Court, the gravamen of which was
constitutional relief. The courts are the only forum in which
Grabow could pursue adjudication of the constitutional issue he was
14
raising. The constitutional issues could not have been properly
resolved by the school board or by the county superintendent of
schools. As we held in Brisendine v. State, Dept. of Commerce
(1992), 253 Mont. 361, 366, 833 P.2d 1019, 1021-22:
Generally, we have held that before a party can seek
declaratory relief, he must exhaust all administrative
remedies. Mitchell v. Town of West Yellowstone (1988),
235 Mont. 104, 108, 765 P.2d 745, 747-48. However, the
exhaustive doctrine does not apply when constitutional
issues are raised. Mitchell, 765 P.2d at 748. Thus,
when a party raises a bona fide constitutional claim, he
has a right to resort to declaratory judgment, rather
than submitting himself to an ordinance or rule he deems
unconstitutional. Mitchell, 765 P.2d at 748. Our
reasoning is based upon the lack of authority in
administrative agencies to determine constitutional
issues. Mitchell, 765 P.2d at 748. Such decisions rest
within the exclusive jurisdiction of the courts.
Mitchell, 765 P.2d at 748.
¶43 For the reasons set forth herein, I concur in the Court’s
decision that Grabow’s appeal rights were not denied and that the
district’s membership in MHSA was not an unlawful delegation of a
governmental power.
/S/ JIM RICE
15
Justice W. William Leaphart dissenting.
¶44 I dissent as to issue number two: “May the Livingston School
District contract with the MHSA to consent to be bound by the
MHSA’s rules?”
¶45 The Court, through legal artifice, concludes that the School
District has not unconstitutionally delegated its authority to
govern interscholastic activity because, in participating in the
MHSA, the School Board makes the rules of the Association its own.
I submit that this result may be practical, but it is,
nonetheless, a legal fiction.
¶46 The Supreme Court of Iowa addressed a very similar issue in
Bunger v. Iowa High School Athletic Ass’n (Iowa 1972), 197 N.W.2d
555. At issue in Bunger was a “Good Conduct” rule of the Iowa High
School Association (the “Association”). The Association was an
unincorporated association in charge of boys’ athletic events
throughout the State of Iowa. Member schools agreed to abide by
the constitution and bylaws of the Association. In an effort to
address the use of alcoholic beverages by athletes, the Association
adopted what was known as the “Good Conduct” rule, which, in turn
contained the “beer rule.” The “Good Conduct” rule was challenged
by a young athlete who was suspended from playing football for a
period of six weeks for being in an automobile containing a case of
beer.
¶47 The Iowa Court began its analysis by noting that the
legislature provided for school districts to be under the control
of directors. The legislature further provided that the affairs of
16
each school were to be conducted by the directors and that the
board “shall make rules for its own government and that of the . .
. pupils . . . and require the performance of duties . . . imposed
by law and the rules.” Bunger, 197 N.W.2d at 559.
¶48 The question before the court was thus posed as follows: Can
a school board re-delegate its rule-making power regarding pupils
to some other organization? The court held that the legislature
had delegated rule-making to the boards, and the general principle
is “that while a public board or body may authorize performance of
ministerial or administrative functions by others, it cannot re-
delegate matters of judgment or discretion.” Bunger, 197 N.W.2d
at 560. The court recited the general principle of law expressed
in the maxim “delegates non potest delegare,” that a delegated
power may not be further delegated by the person to whom such power
is delegated.
¶49 Like the Montana High School Association, the Iowa Association
contended that the “Good Conduct” rule was actually a rule of each
individual board, in that each board agreed to abide by the rules
when it joined the Association. “By joining the association, IHSAA
says, each board promulgate[d] IHSAA’s rules as its own.” Bunger,
197 N.W.2d at 561. The Iowa court rejected this argument as being
inconsistent with the realities of the situation. “Bearing in mind
that a school board cannot re-delegate its rule-making power, how
can we say that a school which votes against a proposed rule has
itself promulgated that rule?” Id. The court reasoned that the
schools have no choice as to the rules it will accept. “It must
17
take them all and abdicate its nondelegable responsibility to
select the rules it wishes to have.” Id.
¶50 The court further noted that a school which becomes
dissatisfied with a rule has no power to repeal the rule. “To say
the school can withdraw from IHSAA is no answer. If it leaves IHSAA
voluntarily, or involuntarily for violating the rule, its boys’
interscholastic athletic program is at an end . . . . Its hands
are tied. The power is actually in the association, not each school
board where the statute places it.” Bunger, 197 N.W.2d at 561.
¶51 The Iowa Court then discussed the fact that Iowa (unlike
Montana) has a statute which authorizes schools to belong to
qualifying organizations and participate in interscholastic
activities sponsored by such organizations. Despite this statutory
recognition of organizations such as the Iowa High School Athletic
Association, the court concluded that the statute could not be
“stretched to mean that schools may turn over their statutory rule-
making authority to such organizations.” Bunger, 197 N.W.2d at
562.
¶52 Finally, the Iowa Association argued that the statutes allowed
the Association to promulgate rules if approved by the state
department of public instruction. The court rejected this
contention holding that the law required the state board of public
instruction to adopt rules concerning eligibility for
interscholastic contests. “Moreover, since promulgation of
eligibility rules involves judgment and discretion, . . . the
State Board cannot re-delegate its rule-making authority . . . any
18
more than a school board can re-delegate its rule-making authority
. . . .” Bunger, 197 N.W.2d at 563.
¶53 In conclusion, the Iowa Court held:
The rule before us is, in fact, a rule of IHSAA and not
of the Waverly-Shell Rock Board of Education or of the
State Board. Neither of the latter public bodies could
re-delegate its rule-making authority. We hold that the
rule is invalid for want of authority in IHSAA to
promulgate it.
Bunger, 197 N.W.2d at 563.
¶54 I find the reasoning of the Iowa Supreme Court to be even more
compelling in the present case than in the Iowa situation. In
Montana, the school board trustees derive their power not from
legislation, as in Iowa, but from the state constitution itself.
Article X, Section 8, of the Montana Constitution grants school
board trustees the power to supervise and control the schools in
their district. Further, the Board of Public Education has the
constitutional authority to exercise “general supervision over the
public school system.” Art. X, Sec. 9(3)(a), Mont. Const. The
school boards cannot abdicate their constitutional grants of
authority by re-delegating their authority to control and
supervise, and thereby determine athletic eligibility decisions, to
a voluntary association. Furthermore, it is noteworthy that, in
Iowa, the state law recognized the existence of high school
athletic associations and allowed such associations to make certain
rules subject to approval of the State Board of Public Education.
Unlike the situation in Iowa, there is no legislative recognition
of high school athletic associations in Montana law. Thus the
19
argument for allowing a Montana school board to re-delegate its
rule-making authority to such an association is even more tenuous
than in the Bunger case. The Iowa Supreme Court reaffirmed its
holding in Bunger in Gabrilson v. Flynn that “[i]t is a fundamental
tenet that a school board may not abrogate its power to regulate
the affairs of the district to an agent.” Gabrilson v. Flynn (Iowa
1996), 554 N.W.2d 267, 276.
¶55 I understand the practical need to achieve uniformity of
eligibility requirements for participation in interscholastic
competition. However, that goal cannot be accomplished by
permitting constitutionally created school boards to abdicate their
constitutional responsibilities to “control” and “supervise” in
favor of a private association over which the school boards,
individually, have no control. Uniformity of eligibility rules is
a question that perhaps can be addressed by the Board of Public
Education under its state-wide constitutional power to exercise
“general supervision over the public school system.” Art. X, Sec.
9(3)(a), Mont. Const.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson joins in the foregoing dissent of Justice
Leaphart.
/S/ JAMES C. NELSON
20
Justice James C. Nelson dissents:
¶56 I join Justice Leaphart's dissenting opinion and add the
following.
¶57 Underlying the majority's opinion is the pragmatic
acknowledgment that Montana has no statutory scheme for dealing
with interscholastic sports, rules and rules infractions, or for
the protection of the due process and appeal rights of student
athletes. The MHSA exists because of a complete void in Montana
law. As Justice Leaphart points out, local school boards have,
actually or effectively, unlawfully delegated to the MHSA certain
of their important constitutional and statutory duties and
authority over students and students' sporting activities because
there is no alternative statutory scheme. Our opinion recognizes
this as fact. As the majority candidly concede, "[i]nterscholastic
competition would simply not exist unless some independent entity
serves as a neutral arbiter to establish and monitor eligibility
rules and the ground rules for play."
¶58 However, to suggest, as do the Respondents and Amici and as
does the Court, that membership in the MHSA, being "voluntary," a
school or school district has a viable option to withdraw from the
organization, is preposterous. The fact is that a school district
either plays ball with the MHSA or it doesn't play at all--
literally. It will be the rare board of trustees that pulls out of
the MHSA and, in so doing, forfeits the opportunity for local
students to participate in interscholastic sports and the chance
for some to win scholarships, along with the substantial revenue,
21
support and entertainment that such sporting events and tournaments
provide to the community.
¶59 The bottom line is that the MHSA, like the elephant in the
room, is as much a part of Montana's state and local school
structure and operations as are the students, the teachers, the
administration, the classes, and the extra-curricular activities.
¶60 Yet, despite this pivotal role in Montana's educational
landscape, the MHSA exists and functions totally without
legislative authorization, regulation or oversight. Indeed, the
MHSA--whose raison d'etre is regulating interscholastic sports,
sporting events and student athletes--is accountable to no State
office, to no State agency, to no State officer and to no State
elected official. Although the Governor and Superintendent of
Public Instruction--concededly without any statutory authority--
appoint members to MHSA's Board of Control, these, among the
highest of Montana's elected executive-branch officers, have no
official say in what the MHSA does or how it goes about doing it.
¶61 All of that said, this is not really a criticism of the MHSA.
It is a corollary to the rule "if you build it they will come"
that "if you don't build it, someone else will." The MHSA exists
because Montana has no laws to govern and regulate the
interscholastic sporting activities of Montana's students. Quite
simply, in default of a comprehensive set of laws, a private
organization--the MHSA--filled the breach.
¶62 My only reason for stating the obvious, is that, under Article
X, Section 1 of Montana's Constitution, it is the State's
22
responsibility to provide a basic system of free quality public
elementary and secondary schools and equal educational opportunity
to each person. Arguendo, participation in interscholastic sports
is part of that constitutionally-protected educational opportunity-
-at least we have tacitly so held. See State ex rel. Bartmess v.
Board of Trustees (1986), 223 Mont. 269, 726 P.2d 801; Kaptein v.
Conrad Sch. Dist. (1997), 281 Mont. 152, 931 P.2d 1311. It
follows, then, that it is the State's obligation to enact laws that
will fairly and efficiently govern, regulate and protect student
athletes' rights to participate in this aspect of their education.
Under Article X, Section 1, the Legislature has an affirmative
duty to legislate in this area. Its constitutional obligation
cannot, by inaction, be foisted off onto a private organization.
Yet, that is exactly what has happened.
¶63 In the case at bar, we are dealing with the complete
abrogation by the State of its responsibility to enact laws
regulating publicly funded interscholastic sporting activities,
sponsored by taxpayer financed schools, played in taxpayer financed
facilities, all governed by publicly elected school district
trustees. More to the point, this case involves the complete
abrogation by the State of its responsibility to enact a statutory
hearing and appeals process to protect student athletes who have
constitutional rights to participate in extra-curricular,
interscholastic sporting activities.
¶64 As the majority point out, in the context of infractions of
and enforcement of MHSA's eligibility rules, there is no law except
23
that which MHSA makes for itself. And, short of resort to the
courts, there is no hearings or appeals process to protect student
athletes' constitutional rights of participation except that which
the MHSA chooses to provide.1 The statutes that do exist--§§ 20-5-
201(3), MCA and 20-3-210, MCA--do not work. Even assuming one
could pound the round peg of the student athlete into the square
hole of the existing law, the process is too slow and too
cumbersome.
¶65 Unfortunately, since the existing statutory procedure is
worthless, these sorts of cases, with some non-substantial
deviations, ultimately require students and their parents to hire
counsel and sue for temporary or preliminary injunctive relief in
district courts when the student is deprived of his or her actual
or perceived right to participate in an interscholastic sporting
activity. Typically injunctive relief is granted (if not by the
trial court, by this Court) so the student can play--eligible or
not. By the time the legal proceedings have finally run their
course, the student has graduated (or, at least, has finished the
season), and about all that is left is for this Court to engage in
the essentially meaningless task of affirming or reversing the
trial court, or deciding not to decide the case at all. See J.M. v.
Montana High Sch. Ass’n (1994), 265 Mont. 230, 875 P.2d 1026; M.H.
v. Montana High Sch. Ass’n (1996), 280 Mont. 123, 929 P.2d 239;
1
Which, at least in this case, went forward at Grabow's
personal expense.
24
Grabow v. Montana High Sch. Ass’n, 2000 MT 159, 300 Mont. 227, 3
P.3d 650.
¶66 The long and short of it is that instead of a comprehensive
and workable statutory and administrative scheme to govern
interscholastic sports, sporting activities and student athletes--
including an efficient hearing and appeals procedure--we have an ad
hoc process that (a) forces students and their parents into time
consuming litigation; (b) insures that the student will play under
court order whether or not he or she is actually eligible; (c)
costs the student's parents, and (through their membership dues in
the MHSA) school districts, scarce funds that could and should
otherwise be spent on education; (d) ultimately produces a
meaningless result; and (e) turns the courts into little more than
enablers of the whole dysfunctional system.
¶67 I can understand why the majority chose the course it did. To
do otherwise would undo interscholastic sports--and, thus, life--as
we know it. I cannot join our decision, however. As Justice
Leaphart states, the legal underpinning for the majority opinion is
a fiction. We are merely giving chicken soup to a corpse.
¶68 The Legislature is obligated to fix this mess, not the courts.
I would provide the proper branch of government the opportunity to
do so.
¶69 I dissent.
/S/ JAMES C. NELSON
25
Grabow v. Montana High School Ass'n
Court: Montana Supreme Court
Date filed: 2002-11-04
Citations: 2002 MT 242, 59 P.3d 14, 312 Mont. 92
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