Hayes v. Lame Deer High School District

specially concurs.

¶21 I specially concur in our opinion. L write separately, first, because I believe that the dissent’s criticism of the procedural component of our opinion is unfounded and, second, because I have my own rationale for concluding that § 20-6-320(6), MCA1 is unconstitutional beyond a reasonable doubt. In sum, I believe that we are correct in addressing this issue; I believe that we are correct in holding the statute unconstitutional; and, finally, I believe that the Legislature can amend the statute to cure its constitutional infirmities by articulating reasonably clear and definite standards, objective criteria and ascertainable limits to guide the county superintendent’s exercise of discretion in territory transfer cases.

I.

¶22 First, there is the contention that the constitutional issue is being raised for the first time on appeal contrary to our general rule that dictates we not address issues and theories unless first raised in the trial court. There are at least two sound legal reasons which militate against following the usual rule in this case.

¶23 As noted by the Court, there is a “substantial rights” exception to the general rule. In Matter of N.B. (1980), 190 Mont. 319, 323, 620 P.2d 1228, 1231, we stated:

*212This Court reserves to itself the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law. We reject the State’s argument that this appeal should be dismissed for failure to raise these issues for the first time on appeal if the alleged District Court error affects the substantial rights of a litigant. [Citation omitted.]

This exception to the no-review rule is discretionary, and we interpret “substantial rights” narrowly. Reno v. Erickstein (1984), 209 Mont. 36, 42, 679 P.2d 1204, 1207. Notwithstanding, I believe that this case fits within the exception.

¶24 Public education and how school districts are drawn, administered, and financed implicate broad public concerns — concerns that are the subject of continuing, intense, popular, and legislative scrutiny statewide. Moreover, as part II of this separate opinion demonstrates, these same matters significantly impact the rights of educational opportunity guaranteed under Article X, Section 1 of the Montana Constitution and, thus, the substantial rights2 of the litigants here.

¶25 Additionally, this case is one of three school district territory transfer cases presently before this Court. See In re the Petition to Transfer Territory from Belgrade Elementary and High School District No. 44 to Monforton Elementary District No. 27 and Bozeman High School District No. 7, No. 99-687; Belgrade Elementary and High School District No. 44 v. Alan and Cindy Morris, Bozeman Elementary and High School District No. 7 and Gallatin County Superintendent of Schools Jill Richards, No. 99-395. In these latter two cases, the unconstitutional delegation issue was raised and briefed below. And, while it might be argued that, to avoid the criticism of the dissent, we should address this issue in one of those two cases, the fact remains that if the statute is unconstitutional for one case, it is unconstitutional for all cases. In practical terms, it simply does not matter which case serves as the vehicle to articulate the dispositive rule of law which governs all three. Moreover, since the instant case was *213the first of the three to advance through the opinion writing stage, (and the only one orally argued), it makes good sense to give the Legislature as much lead time as possible in which to consider and adopt amendments to the statute, if that body chooses to do so.

II.

¶26 That said, I turn next to the substance of the statute at issue.

¶27 Section 20-6-320, MCA (1993), allows territory comprising a high school district to be transferred from one contiguous district to another. Subsection (1) of the statute provides certain specific criteria as to the territory to be transferred, as to the territory remaining and as to the receiving district. Subsection (2) provides certain information that must be included in the transfer petition and for a $50 (now $100) filing fee. Like those in subsection (1), these requirements are black and white and require no exercise of discretion. Under subsection (3), a petition that meets the statutory criteria specified in subsection (1) and contains the information required by subsection (2) is valid; one that does not meet these criteria or contain this information is invalid.

¶28 Subsections (3), (4) and (5) set out how the county superintendent is to proceed procedurally after a valid petition is filed. Subsections (7) and (8) also contain other procedural requirements. None of these procedural requirements are at issue here.

¶29 As noted by the majority, subsection (6) of the statute presents the constitutional infirmity. This subsection provides:

Within 30 days after the hearing, the county superintendent shall, after considering the testimony and exhibits presented at the hearing, issue findings of fact, conclusions of law, and an order. The county superintendent shall grant or deny the requested transfer of territory. The decision must be based on the effects that the transfer would have on those residing in the territory proposed for transfer as well as those residing in the remaining territory of the high school district.

Section 20-6-320(6), MCA (1993) (emphasis added).

¶30 Subsection (6) completely fails to provide any objective legislative standard, policy, instruction, criteria, or requirements as to what sort of “effects” are to guide the county superintendent in exercising his or her power to grant the petition to transfer or to deny the petition. There is no legislative direction as to what “effects” the county superintendent, at a minimum, is to consider. For example, is he or she to consider the effect of the transfer on educational opportunity *214and quality; on property taxes; on taxable valuation; on fiscal stability and bonding capacity; on student transportation; on plant capacity; on class size; on student, teacher and staff morale; on sports and extracurricular activities; on local control; on racial, cultural, social, economic and demographic diversity or homogeneity; on district geography and on the communities and infrastructure of the transferring and receiving districts? Is he or she to consider all of the above, some of the above, none of the above? Is he or she to consider other “effects” instead of or in addition to the above?

¶31 Moreover, the statute fails to provide any legislative direction as to how, substantively, the county superintendent is to evaluate the types of “effects” that transfer might implicate. Which “effects” are important; which are less important; under what criteria are competing “effects” to be balanced; and are there certain “effects” that must exist — or may not exist — before a transfer petition can be granted or denied? Is some sort of cost-benefit-burden analysis appropriate or necessary? Is the county superintendent required to determine whether the relief sought by the petitioners could be accomplished by some mechanism short of disturbing existing school district boundaries so as to avoid the consequent “effects” of transfer on the tax base and operations of both districts?

¶32 ' The statute does not set out who — the petitioners or the opponents of transfer — bears the burden of proof of the “effects.” The statute simply provides that a majority of the resident electors in territory that is part of a district may petition to transfer the territory in which they reside to another district. Aside from there being no definition as to what constitutes “territory” — i.e., is it some percent of the total territory in the district or can it be one family’s lot or farm? — the statute fails to specify whether this “majority’ has any obligation to actually offer evidence or prove any “effects.” The statute does not articulate a standard of proof. Are the “effects” — assuming some obligation of proof — to be demonstrated by a preponderance of the evidence; by clear and convincing evidence; or by some other standard?

¶33 In short, one cannot read subsection (6) without being reminded of the old fast-food commercial:

Customer: “What’s in the chicken sandwich?”

Counter person: “Parts.”

Customer: “What kind of parts?”

Counter person: “Parts is parts.”

*215In context, the same question can be asked: What’s in this statute? Unfortunately, the answer is the same: “Effects is effects.”

¶34 Under this statute, the Legislature has effectively given the county superintendent carte blanche to make virtually any decision he or she wishes. In default of specifying legislative standards, one locally-elected official has been statutorily granted free reign to transfer “territory” — whatever that is — from one school district to another (or to deny a transfer) so long as the decision is based on the “effects” of the transfer. There is no apparent legislative concern as to the significance, relevance or legitimacy of those “effects” — only that there be some. The statute delegates completely unfettered discretion to the administrative official whether to transfer or to not transfer territory. The statute completely fails to set out any reasonably clear and ascertainable limits, objective criteria or clear and definite legislative standards to control the county superintendent’s exercise of discretion and decision-making authority.

¶35 As a result, this scheme allows, if not encourages, arbitrary and capricious decisions based on political expediency instead of on considerations emphasizing thoughtful and fiscally responsible school district administration and, most importantly, insuring the best educational opportunity for the students affected. By virtue of the non-existence of legislative criteria as to the nature and significance of the “effects” the county superintendent is to consider, these statutes promote litigation between school districts with the attendant non-educationally related cost and expense that no school district in this State can realistically afford.

¶36 There being no formal “parties” to school district territory transfer disputes, the “forum” for these sorts of proceedings constitutes little more than a public hearing before the county superintendent. Such a format is better suited to exchanges of opinions and rhetoric by any resident, taxpayer or district representative that wants a say, than to the receipt from knowledgeable witnesses of relevant, probative testimony and hard evidence on the “effects” of the transfer on each district.

¶37 Moreover, this scheme defies any meaningful review of the county superintendent’s determination because there are no legislative standards against which to judge his or her decision. So long as the county superintendent’s decision is based on the “effects” of the transfer, who is to say that the county superintendent is right or wrong? One “effect” is as good or as bad as another “effect.” One dis*216trict’s beneficial “effect” is the other district’s detrimental “effect.” “Effects” may be important or they may be trivial. The “effects” may impact many district residents or they may be personal only to the petitioners. But, so what? “Effects is effects.”

¶38 If logic and common sense do not condemn such a perverse statutory scheme, the law does. Thus, it is to this law that I now turn.

III.

¶39 In Read v. Stephens (1948), 121 Mont. 508, 512, 193 P.2d 626, 628, we held that “[t]he power exercised by the administrative boards or officials in changing the boundaries of school districts is usually termed legislative power ...” We also concluded that the statutory language permitting the county superintendent to grant a transfer petition “if he deem it advisable and for the best interest of the territory proposed to be transferred or included” delegated to the country superintendent of schools and to the board of county commissioners “a full measure of discretionary power in creating and changing the boundaries of school districts.” Read, 121 Mont. at 513, 193 P.2d at 629. Unfortunately, however, we did not directly address the issue framed in the case at bar — i.e., whether the statutory language accorded with the constitutional requirement that delegation of authority to an administrative officer by the Legislature must be accompanied with objective, clear and ascertainable standards on how that authority should be exercised.3

¶40 As the Court’s opinion notes, however, this issue was addressed in Bacus v. Lake County (1960), 138 Mont. 69, 79-80, 354 P.2d 1056, 1061-62, wherein we declared unconstitutional a statute that delegated to county and district boards of health the power to enact rules and regulations “pertaining to the prevention of disease and the promotion of public health.”

¶41 Citing the “Separation of Powers” provision, Article IV, Section 1 of the 1889 Montana Constitution (virtually identical to Article III, Section 1 of the 1972 Montana Constitution), we stated:

When the legislature confers authority upon an administrative agency it must lay down the policy or reasons behind the statute and also prescribe standards and guides for the grant of power

*217which has been made to the administrative agency. The rule has been stated as follows:

“The law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. In other words, in order to avoid the pure delegation of legislative power by the creation of an administrative agency, the legislature must set limits on such agency’s power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency; or if those limits are too broad, its attempt to delegate is a nullity.

“* * * On the other hand, a statute is complete and validly delegates administrative authority when nothing with respect to a determination of what is the law is left to the administrative agency, and its provisions are sufficiently clear, definite, and certain to enable the agency to know its rights and obligations.”

Bacus, 138 Mont. at 78-79, 354 P.2d at 1061 (emphasis in original) (quoting 73 C. J.S. Public Administrative Bodies and Procedure § 29 at 324-25).

¶42 We observed that the statutory language at issue in Bacus was not sufficiently definite to lay down proper standards for the guidance of the administrative agency and that the Legislature’s intention could not be discerned from the language which it used in delegating rule-making authority to the boards. We also pointed out that “the validity of a statute is determined by what may be done under it not what has been done under it.” Bacus, 138 Mont. at 79, 354 P.2d at 1061 (citation omitted).

¶43 Finally, citing State v. Stark (1935), 100 Mont. 365, 371, 52 P.2d 890, 892, we stated:

“Delegation of power to determine who are within the operation of the law is not a delegation of legislative power. * * * But it is essential that the Legislature shall fix some standard by which the officer or board to whom the power is delegated may be governed, and not left to be controlled by caprice.”

*218We agree with this statement of the law and go further by saying that the standard must not be so broad that the officer or board will have unascertainable limits within which to act. The statute in the case at bar is too broad to prescribe with reasonable clarity the limits within which the officer or board may act.

Bacus, 138 Mont. at 81, 354 P.2d at 1062.

¶44 We have continued to follow the Bacus Court’s reasoning in other cases where the Legislature has too broadly delegated its authority to administrative agencies. See Plath v. Hi-Ball Contractors, Inc. (1961), 139 Mont. 263, 362 P.2d 1021 (declaring unconstitutional a statute which delegated to city-county planning boards complete discretion in the development of master plans for the contiguous unincorporated area within a 12-mile radius of the city); Douglas v. Judge (1977), 174 Mont. 32, 568 P.2d 530 (holding unconstitutional a statute authorizing the Department of Natural Resources to make loans to farmers and ranchers who proposed “worthwhile” renewable resource development programs); In the Matter of Savings & Loan Activities (1979), 182 Mont. 361, 597 P.2d 84 (declaring unconstitutional a statute granting the Department of Business Regulation the power to approve or disapprove applications for the merger of savings and loan associations); Shannon v. City of Forsyth (1983), 205 Mont. 111, 666 P.2d 750 (holding that a zoning ordinance requiring the approval of 80% of landowners residing within 300 feet of a particular property before a variance may be granted, was an unconstitutional delegation of legislative authority); White v. State (1988), 233 Mont. 81, 759 P.2d 971 (declaring that the Legislature unconstitutionally delegated authority to the Science and Technology Development Board).

¶45 White even more dramatically points up the constitutional infirmities in the school district territory transfer statute at bar. In White, the legislation at issue actually set out a whole list of criteria to be used by the Science and Technology Development Board in making technology investments. These considerations included:

(1) Technology investments may be made from money in the technology development account only upon a favorable determination by the board of:

(a) the relevance of the proposed technology development project to the purposes of this part;

(b) the prospects for collaboration on the project between public and private sectors of the state’s economy in mineral technology, *219agricultural technology, forestry technology, biotechnology, microelectronics and computer sciences, energy technology, information sciences, and materials science;

(c) the prospects for achieving commercial success in general and for creating significant numbers of new jobs in the state in particular;

(d) the quality of the specific product and business development methodology proposed;

(e) the suitability of any proposed milestone for evaluating progress of technology development project results; and

(f) the availability of matching funds required under 90-3-301(2). (2) In this evaluation process, the board shall consider the investment’s:

(a) job creation potential;

(b) potential benefit for existing industry;

(c) potential for creating new industry; and

(d) involvement of existing institutional research strength or whether it involves a newly targeted technology area with development potential.

White, 233 Mont. at 89-90, 759 P.2d at 976.

¶46 Notwithstanding, even with this detail we held that these considerations did not rise to the level of objective criteria, but were more akin to general policy considerations underlying the entire technology investment program. The legislation was constitutionally deficient4 because “[n]o legislatively defined ‘policy, standard or rule’ [was] effectively given” and because the bill failed to"’prescribe with reasonable clarity the limits of power delegated.’" White, 233 Mont. at 90, 759 P.2d at 976 (citation omitted).

¶47 If the detailed list of considerations set out in the legislation at issue in White was not sufficiently definite and clear enough to pass constitutional muster for legislative delegation of authority purposes, how much further then from the permissible standard is the school district territory transfer statute at issue in the case sub judice? The answer is self-evident. This statute permits the administrative official to grant or deny a petition merely “based on the effects *220that the transfer would have on those residing in the territory proposed for transfer as well as those residing in the remaining territory of the high school district.” Section 20-6-320(6), MCA. In fact, it is difficult to imagine broader discretionary language. Purely and simply, in enacting subsection (6), the Legislature failed to prescribe any objective policy, standard, or rule of decision to limit the county superintendent’s exercise of discretion. See White, 233 Mont. at 90, 759 P.2d at 976. Moreover, subsection (6) of § 20-6-320, MCA, is so broad that the county superintendent has no reasonably clear and ascertainable limits within which to act. See Bacus, 138 Mont. at 81, 354 P.2d at 1062.

¶48 Under this statute, the county superintendent can make his or her decision for a good reason, for a bad reason, or for no reason at all. Provided his or her decision is based on the “effects” of the transfer on the residents of the territories involved and assuming he or she says his or her decision is based on the “effects,” legally it matters not what or how he or she decides. This is so, because there is no objective, clear and certain legislative direction as to what “effects” he or she is to consider and as to how he or she is to judge the significance, relevance and legitimacy of those “effects” as to the losing and gaining districts.

¶49 Moreover, any judicial review of his or her decision — our appellate review included — is necessarily little more than an exercise in the judiciary substituting its judgment for that of the county superintendent’s. Since the statute fails to include any objective, legislative policy, standard, or rule of decision as to what “effects” are to be considered, reviewing courts have no basis for determining whether the county superintendent met or missed the mark. There is no yardstick by which to determine whether his or her decision was arbitrary or capricious; wrong or right.

¶50 In short, the county superintendent’s decision may have no real meat in it at all. It might well be made up of little more than beaks and claws and gizzards and eyeballs. But, under this statute, that’s all right because “Parts is parts,” and “Effects is effects.”

¶51 The language of the territory transfer statute at issue cannot pass the test of constitutionality under either Article III, Section 1, or Article V, Section 1 of the Montana Constitution. For that reason, I agree that § 20-6-320(6), MCA, is unconstitutional beyond a reasonable doubt.

¶52 I concur.