Precedents Cited
1) Mootness and the public interest exception
The Court anchored justiciability in a line of Montana cases defining mootness and its exceptions:
-
Progressive Direct Ins. Co. v. Stuivenga — cited for the proposition that Montana courts’ judicial power is limited
to justiciable controversies and that justiciability doctrines (including mootness) have distinct rules. This framed mootness as
a threshold inquiry.
-
Ramon v. Short — supplied the working definition of mootness and articulated the three-part test for the
public interest exception: (1) public importance; (2) likelihood of recurrence; (3) guidance for public officers.
-
Gateway Opencut Mining Action Grp. v. Bd. of Cnty. Comm'rs — reinforced the mootness definition (effective relief
no longer possible) and supported the public interest exception framework.
-
Havre Daily News, LLC v. City of Havre — emphasized that mootness must be resolved before the merits, and was also
used (along with other cases) to describe the “capable of repetition, yet evading review” exception.
-
In re Big Foot Dumpsters & Containers, LLC — provided the “capable of repetition, yet evading review” test
requiring the same complaining party to face the action again; the Court used it to reject that exception here because Zayne
had graduated.
-
Walker v. State — supported the Court’s willingness to decide constitutional issues of broad public concern to
avoid repetitive litigation and to provide guidance where “problems will repeat themselves.”
Notably, the Court’s mootness analysis is heavily informed by the practical litigation dynamics of athletic eligibility disputes—
a theme developed through MHSA-specific cases (below).
2) MHSA eligibility disputes and why they evade review
-
J.M. v. Mont. High Sch. Ass'n — a cornerstone case. It recognized the time constraints inherent in sports seasons
and litigation and warned that mechanical mootness would “effectively deny the remedy of appeal.” Hert invokes J.M. both to justify
reaching the merits and to reaffirm constitutional protection once sports are offered.
-
Van Troba v. Mont. State Univ. — referenced J.M. to illustrate that dismissing as moot can deny entities (there, in
an analogous context) a meaningful opportunity to have rules validated and can let disputes “evade review altogether.”
-
Grabow v. Mont. High School Ass'n, 2000 MT 159 (Grabow I) — the Court noted that it previously dismissed a Semester
Rule challenge as “completely moot,” highlighting the recurrence problem: the same Semester Rule returns to the Court decades later.
Justice Nelson’s dissent in Grabow I (quoted) underscored that these constitutional issues are important and structurally evade review.
-
Grabow v. Mont. High Sch. Ass'n, 2002 MT 242 (Grabow II) — supplied two key propositions: (a) MHSA decisions must
comply with the constitution; and (b) students may “immediately seek judicial review” after MHSA’s final decision. Hert used Grabow II
to reject the District Court’s conclusion that judicial review was unavailable.
3) Extracurricular participation as constitutionally protected (though not fundamental)
-
State ex rel. Bartmess v. Bd. of Trs. of Sch. Dist. No. 1 — provided the doctrinal bridge: extracurricular activities
are part of the educational process; participation is not a fundamental right, but is subject to constitutional protection. Hert relies
on Bartmess to reject the District Court’s “privilege/contract” framing.
-
J.M. v. Mont. High Sch. Ass'n — reaffirmed: “once interscholastic sports are offered, they acquire the protection
from an unconstitutional deprivation.” Hert treats this as settled Montana constitutional law applicable to MHSA eligibility decisions.
4) Due process content and the need for a reviewable record
-
Morrissey v. Brewer — supplied the flexible, context-dependent nature of due process: it “calls for such procedural
protections as the particular situation demands.” Hert uses Morrissey to justify tailoring minimum process to MHSA’s discretionary waiver
determinations and the need for judicial-reviewable documentation.
-
State v. West — cited to support a fact-specific due process inquiry.
5) State action (Justice Rice’s concurrence)
Justice Rice’s concurrence addresses an issue the majority did not need to fully litigate: whether MHSA is a “state actor” such that
constitutional due process applies. He relied on:
-
Valley Christian Sch. v. Mont. High Sch. Ass'n — noted MHSA previously conceded it met criteria of a “state actor”
for purposes of an appeal, supporting application of constitutional constraints.
-
Nat'l Collegiate Athletic Ass'n v. Tarkanian — explained the general “dichotomy” between state action and private conduct,
and contrasted the NCAA (multi-state membership, generally not a state actor) with a single-state association potentially treated differently.
-
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n — central to the concurrence: “pervasive entwinement” can transform
a nominally private athletic association into state action for constitutional purposes.
-
Goble v. Mont. State Fund — cited for the government-action framing of due process (procedural and substantive).
-
Blum v. Yaretsky and Jackson v. Metropolitan Edison Co. — described federal state-action tests:
“fairly attributable to the State” and “close nexus.”
-
Marsh v. State of Ala. — the classic “company town” example of private actors performing traditionally exclusive public functions.
While the majority opinion proceeds directly to the due process holding, the concurrence strengthens the analytical foundation for treating MHSA
as constitutionally constrained—an issue likely to recur if MHSA or similarly situated bodies contest state-actor status in future cases.
Legal Reasoning
1) Justiciability: why declaratory relief keeps the controversy “live” in the public interest sense
The Court accepted that the season’s end and graduation eliminated any practical ability to order Zayne into games already completed.
But it refused to treat that practical limit as a reason to avoid decision altogether. Applying Ramon v. Short,
the Court found:
-
Public importance: Eligibility decisions affect educational opportunities statewide; extracurriculars are part of the educational process,
and once offered, participation is protected against unconstitutional deprivation.
-
Recurrence: The Court cited the long history of MHSA eligibility litigation, including recurring Semester Rule disputes (e.g., Grabow I).
-
Guidance: Without a Supreme Court directive, the same due process and reviewability problems will repeat, producing inconsistent district court handling and
practical denial of appellate remedies.
The Court’s approach reflects a structural insight: the sports-season clock can defeat normal appellate review. Rather than stretching the “capable of repetition” exception
beyond its requirement that the same complaining party recur, the Court used the public interest exception to address systemic procedural rules.
2) The protected interest: rejecting “privilege/contract” as the governing frame
The District Court had concluded there is “no constitutional right” to extracurricular sports and treated participation as a privilege or contractual interest.
The Supreme Court corrected this by reiterating Montana law: the interest is not “fundamental,” but it is constitutionally protected once offered.
This is a critical doctrinal distinction because due process analysis depends not on whether the interest is fundamental, but whether the government (or state actor)
is depriving a person of a protected interest without constitutionally sufficient procedure.
3) Immediate judicial review and the necessity of a reviewable record
Citing Grabow II, the Court reaffirmed that students may seek judicial review after MHSA’s final conclusion and that MHSA must comply with the constitution.
But Hert adds an operational requirement to make that judicial review meaningful: MHSA must provide enough documentation for a court to review what it did and why.
The Court reasoned that where MHSA denies eligibility (particularly when applying discretionary waiver criteria), a student cannot fairly seek judicial review if MHSA:
(a) does not clearly identify the issue; (b) does not disclose the evidence it relied upon; and (c) issues no timely written explanation that can be evaluated against
constitutional standards. Without these, judicial review becomes illusory—“fly blind”—which effectively undermines the very immediacy Grabow II endorses.
4) The minimum procedural due process rule announced
Drawing on Morrissey v. Brewer (flexibility) and a fact-specific approach (State v. West), the Court held that in discretionary waiver decisions
affecting the protected interest in offered extracurricular participation, due process requires at minimum:
- Notice of the issues to be decided;
- A meaningful opportunity to be heard;
-
A record and written decision sufficient to permit judicial review.
Applying that standard, the Court found MHSA’s process constitutionally insufficient because MHSA did not directly notify the Herts of ineligibility; did not directly
inform Zayne which rule made him ineligible prior to the appeal hearing; did not provide the documents/evidence it relied on; did not state reasons at the hearing; and did
not provide the Herts a written final decision (only a brief letter to the principal announcing denial).
5) Remedy calibration: declaratory relief without reopening the substantive eligibility call
The Court explicitly limited relief: it did not re-adjudicate MHSA’s substantive application of the Semester Rule to Zayne, did not invalidate the Semester Rule, and did not
grant individualized relief restoring participation. Instead, it ordered prospective clarification through declaratory judgment so that future eligibility/waiver determinations
are accompanied by constitutionally adequate procedure and a reviewable record.
Impact
1) Operational changes for MHSA eligibility and waiver proceedings
Hert’s most immediate effect is procedural: MHSA must implement practices that reliably produce:
(a) direct and timely notice to affected students/parents; (b) disclosure of the issue(s) and evidence; and (c) a timely written decision that can be reviewed by a court.
In practice, this pushes MHSA toward standardized written determinations (even if brief) and basic recordkeeping for appeals.
2) Strengthening judicial review and reducing “black box” discretion
The Court’s insistence on a written, reviewable decision converts “immediate judicial review” from a formal right into a functional one.
Future litigants can challenge whether MHSA applied Rule 5.3’s discretionary criteria consistently and constitutionally, and courts will have a record to evaluate claims
of arbitrariness or procedural unfairness.
3) Doctrinal stabilization of extracurricular protections in Montana
While Bartmess and J.M. recognized constitutional protection in participation once offered, Hert clarifies what that protection entails
procedurally in MHSA waiver contexts. This may influence not only MHSA matters but also school-district extracurricular decisions where eligibility is determined by policy
and discretionary exceptions.
4) Mootness jurisprudence in the sports-eligibility context
By expressly applying the public interest exception and explaining why the “capable of repetition” exception fails when the same student has graduated, Hert provides
a roadmap for future appellate review of time-limited student eligibility disputes. Litigants can more confidently seek declaratory relief for systemic procedural defects
even when individualized seasons have ended.
5) State-actor litigation posture (from the concurrence)
Justice Rice’s concurrence signals that if MHSA (or similar associations) attempt to avoid constitutional scrutiny by emphasizing private status, Montana courts have a robust
analytical pathway—via Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n and the association’s entwinement with public schools—to treat the body as
a state actor. This may deter state-action defenses or shape how MHSA structures governance and documentation going forward.