Barrett v. State, 547 P.3d 630

Background:

Plaintiffs (students, student organizations, faculty, faculty governance bodies, ex-regents, MFPE and others) challenged four 2021 Montana statutes affecting the Montana University System (MUS): HB 349, HB 112, SB 319 §2, and HB 102 (some counts later resolved in separate cases).
HB 349 limited university discipline/recognition/funding authority over student speech and organizations; HB 112 ("Save Women’s Sports Act") barred "students of the male sex" from women’s sports; SB 319 §2 required opt-in funding for politically active student organizations.
Plaintiffs sued the State, Governor, and Attorney General seeking declaratory and injunctive relief and attorney fees under the private attorney general doctrine; District Court found Plaintiffs had standing and declared HB 349, HB 112 (as applied to higher ed), and SB 319 §2 unconstitutional, enjoining enforcement.
On appeal the State contested standing and defended HB 112 on the merits; it did not defend HB 349 or SB 319 §2 on appeal, which the Court treated as conceded unconstitutional.
The Supreme Court (majority) affirmed standing and the unconstitutionality of the three challenged provisions as infringing the Board of Regents’ Article X, §9 authority; there was no majority on award of attorney fees under the private attorney general doctrine, so the District Court’s denial stands.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Standing to challenge HB 349, HB 112, SB 319 §2	University community members and organizations suffer concrete, particularized injuries (discrimination risk, exclusion from athletics, loss of funding/speech restrictions) and thus have constitutional and prudential standing	Only the Board of Regents is the proper party to vindicate Article X, §9; others lack individualized injury	Court: Plaintiffs have both constitutional and prudential standing; individualized injuries and redressability satisfied; prudential limits do not bar suit
2. Whether HB 112 infringes Board of Regents’ Article X, §9 authority	HB 112 intrudes into MUS internal governance (athletics) and conflicts with Board policy/authority over athletics and national athletic-association compliance	Legislature argues HB 112 is a valid exercise of legislative power and applies statewide (not an exclusive Board domain); Board had not (in some respects) acted	Court: HB 112 (as applied to MUS) unconstitutionally infringes the Board’s constitutional authority; Legislature cannot micromanage MUS affairs
3. Award of attorney fees under private attorney general doctrine	Plaintiffs: vindicated important constitutional interests; private enforcement necessary; fees appropriate (Montrust factors met); District Court erred by importing §25-10-711 frivolous/bad-faith test	State: equitable considerations weigh against fees; Board could have (and did in part) litigate; courts should be cautious awarding fees against the State	No majority: two justices would award fees (finding Montrust factors & legislative bad faith); a plurality would affirm denial (finding private enforcement not shown/other equities); District Court denial remains binding

Key Cases Cited

Bd. of Regents of Higher Educ. of Mont. v. State, 2022 MT 128, 409 Mont. 96, 512 P.3d 748 (Mont. 2022) (confirmed Board’s constitutional authority over MUS and that legislative incursions can be unconstitutional)
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (established constitutional standing elements: injury-in-fact, causation, redressability)
Warth v. Seldin, 422 U.S. 490 (1975) (standing inquiry: whether plaintiff is entitled to have court decide the merits)
Missoula City-County Air Pollution Control Bd. v. Bd. of Env’t Rev., 282 Mont. 255, 937 P.2d 463 (1997) (prudential standing and aggrieved-party analysis in administrative context)
W. Tradition P’ship v. Att’y Gen. of Mont., 2012 MT 271, 367 Mont. 112, 291 P.3d 545 (Mont. 2012) (private attorney general doctrine discussion; considered statutory bad-faith/frivolousness as a guidepost)
Montrust v. State (Montanans for the Responsible Use of the School Trust), 1999 MT 263, 296 Mont. 402, 989 P.2d 800 (1999) (adopted three-factor private attorney general test used in Montana jurisprudence)
Serrano v. Priest, 569 P.2d 1303 (Cal. 1977) (source for the private attorney general doctrine three-part inquiry)