                                            No. 05-722

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 264N

                                                  _____________________________________


ADAM EREKSON and MATTHEW EREKSON,

              Plaintiffs and Appellants,

         v.

BILLINGS HIGH SCHOOL DISTRICT NUMBER
2, YELLOWSTONE COUNTY, DAVE WILLIAMS,
and MARK SULSER,

              Defendants and Respondents.

                                                  _____________________________________


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DV 04-286,
                     The Honorable Russell C. Fagg, Presiding Judge.


COUNSEL OF RECORD:

              For Appellants:

                     Matthew L. Erekson, Attorney at Law, Billings, Montana

              For Respondents:

                     Mary E. Duncan and Lawrence R. Martin, Felt, Martin, Frazier, Jacobs &
                     Rapkoch, P.C., Billings, Montana

                                                  _____________________________________

                                                          Submitted on Briefs: August 16, 2006

                                                                    Decided: October 17, 2006
Filed:

                    ____________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed

as a public document with the Clerk of the Supreme Court and its case title, Supreme

Court cause number and disposition shall be included in this Court’s quarterly list of

noncitable cases published in the Pacific Reporter and Montana Reports.

¶2    The Ereksons, Adam and his father Matthew, filed a complaint in the Thirteenth

Judicial District Court, Yellowstone County, alleging the defendants (1) discriminated

against Adam on the basis of his religion by not allowing him--a member of the varsity

football team--any play time in any football game during his senior year of high school

and by cutting him from the high school basketball team; and (2) withheld public records

relating to the Ereksons’ discrimination claims.       The District Court granted the

defendants’ motions for summary judgment. We affirm.

¶3    The issues are whether the District Court erred as a matter of law in granting

summary judgment to the defendants on the discrimination claims and on the claim of

withholding public records.

¶4    Summary judgment is proper when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c). We

review a district court's grant or denial of a summary judgment motion de novo. If, after

a de novo review, we determine that a district court's legal conclusions are correct, we

will affirm. On the other hand, if we conclude the district court's legal rulings are



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incorrect, we will reverse. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 4, 327

Mont. 99, ¶ 4, 113 P.3d 275, ¶ 4.

¶5     Ereksons first argue that the District Court erred when it dismissed their claim of

religious discrimination under federal law, because the requirement to exhaust

administrative remedies under the Montana Human Rights Act does not apply to a federal

discrimination claim. Ereksons did not make this argument to the District Court, and we

do not address issues raised for the first time on appeal. See, e.g., Nielson v. Brocksmith,

2004 MT 259, ¶ 18, 323 Mont. 98, ¶ 18, 99 P.3d 181, ¶ 18 (citation omitted).

¶6     Ereksons next argue that their state discrimination claims in their amended

complaint should not have been dismissed. In their argument on these claims, Ereksons

mischaracterize the situation by stating that the claims were dismissed on res judicata

grounds.

¶7     In granting summary judgment on the discrimination claims in the amended

complaint, the District Court noted Ereksons did not file an administrative complaint with

the Montana Human Rights Board (MHRB) until after the deadline for filing such a claim

had run. Because the Ereksons had failed to first take their claims to the MHRB within

the time allowed, the court determined they had no actionable claim in court. The

District Court was correct. See Hash v. U.S. West Communications Services, 268 Mont.

326, 331-32, 886 P.2d 442, 445-46 (1994).

¶8     The Ereksons’ third argument on appeal is that the District Court erred in granting

the defendants summary judgment on their claim for failure to produce documents

constituting public records. Based on the affidavits and exhibits filed in support of the

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defendants’ motion for summary judgment, the District Court determined the defendants

had fully complied with the requirement that they turn over all public documents. The

court determined that, to the extent documents had not been produced, Ereksons were

asking for documents which did not exist, were within the attorney-client privilege or

were not public records because they involved matters of individual privacy. After

reviewing the affidavits and exhibits submitted in support of--and in opposition to--the

motion for summary judgment, we conclude the District Court was correct. Ereksons

have established no genuine issue of material fact relating to their claim based on

withholding of public documents, and the defendants are entitled to judgment as a matter

of law.

¶9    Affirmed.

                                               /S/ KARLA M. GRAY


We Concur:

/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON




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