In re Poplar Elem. v. Froid Elem., 2015 MT 278 (Sept. 17, 2015) (Rice. J.; Shea, J., dissenting) (4-1, rev’d)
Issue: Whether the district court erred in holding the county superintendent abused his discretion by receiving unsworn statements as evidence in the territory transfer hearing.
Short Answer: Yes.
Reversed and remanded
Facts: In March 2013, Froid’s board of trustees and a group of Roosevelt County electors petitioned the Roosevelt County school superintendent to transfer territory from the Poplar school district to the Froid school district. Poplar opposed the transfer. By statute, the county superintendent was required to hold a hearing on the petition. She appointed Paul Huber to act as deputy superintendent to hold the hearing and decide the petition. Poplar and Froid retained counsel.
Prior to the hearing, Huber wrote to counsel to confirm the procedure that would be followed at the hearing. Interested parties would be allowed to speak, counsel could make opening and closing statements, and would have the opportunity to cross-examine witnesses. However, those who spoke would not be placed under oath. Poplar did not object.
The hearing was held April 23, 2013, on the record. Huber heard testimony from 21 people. Some were cross-examined but none were placed under oath. Poplar did not object. The parties submitted proposed findings and conclusions. Poplar did not object to the unsworn testimony in its post-hearing submissions.
Huber issued findings, conclusions and an order approving the transfer in June 2013. Poplar appealed to the district court and the matter was submitted on cross-motions for summary judgment. The parties argued the constitutionality of the territory transfer statute, the constitutionality of appointing Huber as deputy, and whether Huber’s decision was an abuse of discretion. Additionally, Poplar argued its due process rights were violated because Huber did not allow sufficient time for discovery, subpoena of witnesses, or cross-examination, and because he admitted unsworn statements. Froid argued that the parties were allowed to cross-examine witnesses, and Poplar had not preserved the other claims because it failed to object at the hearing.
Procedural Posture & Holding: The district court agreed that Poplar waived many of its due process arguments, but also held that because the territory transfer statute requires statements to be made under oath, Huber’s failure to do so was an abuse of discretion that could not be waived. The district court granted summary judgment to Poplar and vacated Huber’s decision, remanding for a new hearing. Froid appeals, and the Supreme Court reverses.
Reasoning: The district court failed to properly distinguish waiver from a litigant’s burden to preserve an issue for review. The initial inquiry is whether an issue has been preserved for review. Unless an exception is provided by statute, or plain error is established, a reviewing court may consider only those issues that are properly presented for its review.
If an issue is properly preserved, the reviewing court may then consider the preserved issue, such as whether the defense of waiver has been established. A claim may be properly preserved for review and nonetheless waived by the party asserting error. The term “forfeiture” is more properly used in connection to the preservation of an issue, as it is the failure to timely assert a right, whereas “waiver” is the intentional relinquishment of abandonment of a known right.
Preservation depends on the different standards of the Montana Administrative Procedure Act (MAPA) versus the common law. Under MAPA, a party may only obtain judicial review of issues that were raised before the agency, unless the party establishes good cause for it failure to raise the issue. Under the common law, a party cannot raise an issue for the first time on appeal unless the reviewing court accepts plain error review. Thus, under MAPA, Poplar would have had to established good cause, while under the common law, Poplar would have had to establish plain error and the district court would have had to agree to exercise discretionary review.
Under the statutes, proceedings before county superintendents of school are excluded from MAPA. Therefore, the common law governs the issue of whether Poplar’s claim was properly preserved. Plain error review is to be used sparingly. Even if the district court’s decision is viewed as an implied exercise of plain error review, it was error. The issue here is a procedural question under the statute, and nothing in the record indicates a miscarriage of justice or fundamental unfairness. Poplar’s claim was not properly raised and the district court should not have reached the merits of the issue.
Justice Shea’s Dissent: Justice Shea agrees that Poplar failed to preserve the issue and that it does not warrant plain error review. However, he would affirm summary judgment on the grounds that the county superintendent had no authority to recuse herself and appoint Huber in her stead. Although Poplar did not object to Huber’s appointment during the territory transfer hearing, it did raise the issue in its summary judgment briefing before the district court. A lack of statutory authority to assume jurisdiction renders any rulings void.