Barrett v. State

416 Mont. 226

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.

No. DA 22-0586.

Submitted on Briefs August 16, 2023.

Decided April 26, 2024.

2024 MT 86.

416 Mont. 226.

—P.3d—

Appeal from the District Court of Gallatin County.

Eighteenth Judicial District Court, Cause No. DV-21-581B.

Honorable Rienne H. McElyea, Judge.

The district court’s summary judgment rulings that plaintiffs had standing was proper because plaintiffs included individual students and organizations who would be directly injured by the challenged bills infringing on protected rights and interests; the district court’s summary judgment rulings that HB 349, HB 112 and SB 319 were unconstitutional was affirmed because HB 112 was found to unconstitutionally target and interfere with university athletics, which are under the Board of Regents’ constitutional authority and HB 349 and SB 319 were held to unconstitutionally infringe on the Board of Regents’ authority over internal university affairs.

JUSTICE GUSTAFSON, joined by JUSTICE McKINNON, disagreeing with the District Court Judgment as to attorney fees:

CHIEF JUSTICE MIKE McGRATH, joined by JUSTICE BAKER, concurred with the Opinion as to Issues One and Two and agreeing with the District Court decision as to Issue Three, attorney fees.

JUSTICE SHEA, concurred with the Opinion as to Issues 1 and 2, and affirmed the District Court’s decision as to Issue 3, attorney fees:

JUSTICE RICE dissented, joined by JUSTICE SANDEFUR.

JUSTICE SANDEFUR dissented in part.

For Appellants: Austin Knudsen, Montana Attorney General, Michael D. Russell, Assistant Attorney General, Helena; Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings.

For Appellees: James H. Goetz, Jeffrey J. Tierney, Goetz, Geddes & Bardner, P.C., Bozeman; Raphael Graybill, Graybill Law Firm, P.C., Great Falls.

For Amici Five Female Athletes: Justin M. Oliveira, Attorney at Law, Billings; Cody S. Barnett, Alliance Defending Freedom, Lansdowne, Virginia.

JUSTICE 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 crossmotion for summary judgment, declared HB 349, HB 112, and § 2 of SB 319 unconstitutional, and denied the Plaintiffs’ request for attorney fees in its 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.

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.

¶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 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...