file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm




                                                                No. 99-687

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 348

                                                             303 Mont. 249

                                                              16 P. 3d 1000



                                          IN RE THE PETITIONS TO TRANSFER

                                  TERRITORY FROM BELGRADE ELEMENTARY

                                      AND HIGH SCHOOL DISTRICTS NO. 44 TO

                                  MONFORTON ELEMENTARY DISTRICT NO. 27

                                 AND BOZEMAN HIGH SCHOOL DISTRICT NO. 7.

                        APPEAL FROM: District Court of the Eighteenth Judicial District,

                                                In and for the County of Gallatin,

                                    The Honorable Thomas A. Olson, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                              Michael W. Dahlem, Attorney at Law, Whitefish, Montana

                                                            For Respondent:

                      Susan B. Swimley, Gallatin Chief Deputy County Attorney, Bozeman

                         Montana (Respondent Gallatin County Superintendent of Schools)



file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm (1 of 4)4/2/2007 1:52:56 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm

                                   Brad and Heidi Haderlie, Pro Se, Bozeman, Montana

                                               Submitted on Briefs: April 13, 2000
                                                  Decided: December 21, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Jim Regnier delivered the opinion of the Court.

¶1 Belgrade Elementary and High School District No. 44 ("Belgrade School District")
appeals from the Order entered by the Eighteenth Judicial District Court, Gallatin County,
affirming the decisions of the Gallatin County Superintendent of Schools which granted
transfers of territory from Belgrade School District. Belgrade School District contends that
the District Court erred when it concluded that §§ 20-6-213(5) and -320(5), MCA, the
statutes which confer authority to county superintendents of schools to grant or deny
petitions to transfer territory among school districts, are constitutional. We reverse.

                                                          BACKGROUND

¶2 On August 28, 1998, Brad and Heide Haderlie submitted two petitions to Gallatin
County Superintendent of Schools Jill Richards requesting that Richards allow the transfer
of their property from Belgrade Elementary School District No. 44 to Monforton
Elementary School District No. 27, and from Belgrade High School District No. 44 to
Bozeman High School District No. 7. The Gallatin County Superintendent held a hearing
on the Haderlies' petitions on September 21, 1998, and subsequently granted their
petitions for transfer by order dated October 21, 1998.

¶3 On November 17, 1998, Belgrade School District filed a petition in the Eighteenth
Judicial District Court, Gallatin County, seeking judicial review of the Gallatin County
Superintendent's decision. The District Court held oral argument on Belgrade School
District's petition on August 23, 1999. On October 13, 1999, the court issued an Order
denying Belgrade School District's petition and affirming the decision of the Gallatin
County Superintendent of Schools. Belgrade School District appeals.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm (2 of 4)4/2/2007 1:52:56 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm



                                                  STANDARD OF REVIEW

¶4 Our review of issues involving constitutional law is plenary. State v. Bedwell, 1999 MT
206, ¶ 4, 295 Mont. 476, ¶ 4, 985 P.2d 150, ¶ 4. When the constitutionality of a statute is
challenged, we begin with the presumption that the statute is constitutional, and the party
attacking it has the burden of proving it unconstitutional. Connery v. Liberty Northwest
Ins. Corp., 1998 MT 125, ¶ 9, 289 Mont. 94, ¶ 9, 960 P.2d 288, ¶ 9. A statute will be
"upheld on review except when proven to be unconstitutional beyond a reasonable doubt."
Montanans for Responsible Use of the Sch. Trust v. State ex rel. Bd. of Land Comm'rs,
1999 MT 263, ¶ 11, 296 Mont. 402, ¶ 11, 989 P.2d 800, ¶ 11.

                                                             DISCUSSION

¶5 Whether the District Court erred when it concluded that §§ 20-6-213(5) and -320(5),
MCA, the statutes which confer authority to county superintendents of schools to grant or
deny petitions to transfer territory among school districts, are constitutional?

¶6 We have previously held that §§ 20-6-213(5) and -320(5), MCA, are unconstitutional
delegations of legislative authority. Hayes v. Lame Deer High Sch. Dist., 2000 MT 342,
¶ 20 (Dec. 19, 2000), (holding that the statutory precursor to § 20-6-320(5), MCA, is
unconstitutional); Belgrade Elementary and High Sch. Dist. No. 44 v. Morris, 2000 MT
342, ¶ 8 (holding that § 20-6-213(5), MCA, is unconstitutional).

¶7 Belgrade School District also contends that the District Court erred when it concluded
that the Gallatin County Superintendent's decision complied with the requirements of §§
20-6-213(5) and -320(5), MCA. This contention is mooted by our decision that the statutes
pursuant to which the superintendent reached her decision are unconstitutional.

¶8 Reversed.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                        /S/ J. A. TURNAGE

                                                      /S/ KARLA M. GRAY

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm (3 of 4)4/2/2007 1:52:56 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm




                                                    /S/ JAMES C. NELSON

                                              /S/ W. WILLIAM LEAPHART

                                               /S/ WILLIAM E. HUNT, SR.

                                               /S/ TERRY N. TRIEWEILER




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-687%20Opinion.htm (4 of 4)4/2/2007 1:52:56 PM
