DA 20-0012

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 216

POPLAR ELEMENTARY SCHOOL DISTRICT NO. 9,

 Petitioner and Appellant,

 v.

FROID ELEMENTARY SCHOOL DISTRICT NO. 65,

 Respondent and Appellee.

APPEAL FROM: District Court of the Fifteenth Judicial District,

In and For the County of Roosevelt, Cause No. DV 18-82

Honorable David J. Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elizabeth A. Kaleva, Elizabeth O’Halloran, Kaleva Law Office, Missoula, 

Montana

For Appellee:

Jeff A Weldon, Kyle A. Moen, Felt Martin PC, Billings, Montana

For Intervenor:

Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Civil Bureau 

Chief, Aislinn W. Brown, Assistant Attorney General, Helena, Montana

Submitted on Briefs: June 24, 2020

 Decided: August 25, 2020

Filed:

__________________________________________

Clerk

cir-641.—if

08/25/2020

Case Number: DA 20-0012
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Poplar Elementary School District No. 9 (“Poplar”) appeals the order of the 

Fifteenth Judicial District Court, Roosevelt County, affirming the Acting Roosevelt County 

Superintendent of School’s (“Acting Superintendent”) grant of a territory transfer from 

Poplar to Froid Elementary School District No. 65 (“Froid”) pursuant to § 20-6-105, MCA 

(the “territory transfer statute”). Poplar asserts that the Acting Superintendent’s decision

constituted an abuse of discretion and that the District Court erred in affirming it. Poplar 

further contends that the territory transfer statute is unconstitutional, both facially and as

applied to Poplar. We conclude that the Acting Superintendent did not abuse her 

discretion; that Poplar’s facial constitutional challenge is barred by the doctrines of 

collateral estoppel and res judicata; and that its as-applied challenge fails because a school 

district does not have a constitutional right to due process. We accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 This case arises from an ongoing dispute over the transfer of territory from 

Poplar to Froid. See In re the Pet. to Transfer Territory from Poplar Elementary 

Sch. Dist. No. 9 to Froid Elementary Sch. Dist. No. 65, 2015 MT 278, 381 Mont. 145, 

364 P.3d 1222 (“Poplar I”). The territory in question (“Transfer Territory”) includes 

127,689.3 acres located in Poplar. The Transfer Territory is contiguous to Froid and is 

already part of Froid High School District 65E. As of the filing of the petition at issue, 

there were eleven school-age children living in the Transfer Territory. 

¶3 In 2013, Froid’s Board of Trustees, along with a group of registered electors in 

Roosevelt County, petitioned the Roosevelt County Superintendent of Schools to transfer 
3

the Transfer Territory. Poplar I, ¶ 3. Poplar opposed the transfer. Poplar I, ¶ 3. The 

county superintendent appointed a deputy superintendent, Paul Huber, to hear and decide 

the petition as required by the territory transfer statute. Poplar I, ¶ 3. 

¶4 In June 2013, after a hearing, Huber issued his findings of fact, conclusions of law, 

and order approving the territory transfer. Poplar I, ¶ 8. Poplar appealed to the 

district court, and both parties filed cross-motions for summary judgment. Poplar I, ¶ 8. 

Poplar contended that: (1) the territory transfer statute is an unconstitutional delegation of 

legislative authority; (2) the county superintendent violated Poplar’s due process rights by 

appointing Huber as deputy; (3) Huber violated Poplar’s due process rights by, among 

other things, admitting unsworn statements; and (4) Huber’s decision to transfer territory 

from Poplar to Froid was an abuse of discretion. Poplar I, ¶ 8. 

¶5 The district court, Judge John McKeon presiding, ruled in favor of Froid with 

respect to Poplar’s facial constitutional challenge. In a detailed analysis, the court rejected 

Poplar’s argument that the statute fails to prescribe “any objective policy, standard, or 

rule of guidance” to appropriately limit a county superintendent’s discretion in granting or 

denying a transfer petition. Applying the presumption of constitutionality and rules of 

statutory construction, the court held the statute constitutional as a matter of law. The 

district court also rejected Poplar’s as-applied constitutional challenges.

¶6 The district court agreed with Poplar, however, that Huber’s failure to administer 

oaths to numerous witnesses constituted an abuse of discretion, awarded 

summary judgment to Poplar, and vacated Huber’s findings of fact, conclusions of law, 

and order transferring the territory to Froid. Poplar I, ¶ 9. 
4

¶7 Froid appealed the latter rulings to this Court. Poplar I, ¶ 9. Poplar did not 

cross-appeal the ruling on the constitutionality of the territory transfer statute. We held 

that the district court erred in resolving the question whether § 20-6-105, MCA, required 

sworn testimony because Poplar failed to object at the transfer hearing to Huber’s 

allowance of unsworn testimony and thus failed to preserve the challenge for appeal. 

Poplar I, ¶¶ 19-20. We accordingly reversed and remanded for “further proceedings in 

review of the county superintendent’s decision[.]” Poplar I, ¶ 21. 

¶8 On remand, the district court ruled that certain of Huber’s findings and conclusions

were unsupported by the record and thus that Huber abused his discretion in approving the 

territory transfer. Froid appealed to this Court but voluntarily dismissed the appeal in 

September 2016. See In re Pet. to Transfer Territory from Poplar Elementary

Sch. Dist. No. 9 to Froid Elementary Sch. Dist. No. 65, DA 16-0413. 

¶9 On November 20, 2017, Froid filed a new petition to transfer the Transfer Territory. 

This time, the county superintendent appointed Jayne Mitchell as Acting Superintendent

to preside over the hearing on Froid’s petition. The Acting Superintendent held a hearing 

on August 9, 2018, and issued her Findings of Fact, Conclusions of Law, and Order 

approving the transfer two months later. Poplar appealed to the District Court, 

Judge David Cybulski presiding, arguing that the Acting Superintendent abused her 

discretion in applying the transfer statute. Poplar also raised a facial constitutional 

challenge to the transfer statute identical to the one it raised before Judge McKeon, as well 

as an as-applied constitutional challenge. On December 9, 2019, the District Court issued 

its Order on Petition for Judicial Review affirming the Acting Superintendent’s decision. 
5

Poplar appeals. The Attorney General intervened for the limited purpose of defending the 

constitutionality of the territory transfer statute.

STANDARDS OF REVIEW

¶10 A district court reviews a county superintendent’s decision regarding a territory 

transfer petition for an abuse of discretion. In the Matter of Pet. to Transfer Territory from 

Dutton/Brady K-12 Sch. Dist. No. 28C to Conrad High Sch. and Elementary Dist. No. 10, 

2011 MT 152, ¶ 7, 361 Mont. 103, 259 P.3d 751 (“Dutton”) (citing § 20-6-105(9), MCA). 

An abuse of discretion occurs when a tribunal acts arbitrarily, without employment of 

conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. 

Dutton, ¶ 7 (citation omitted). 

¶11 This Court’s review of constitutional questions is plenary. Williams v.

Bd. of Cty. Comm’rs, 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. We review a district 

court’s conclusions of law, including the constitutionality of a statute, for correctness. 

Williams, ¶ 23. 

DISCUSSION

¶12 1. Did the District Court correctly determine that the Acting Superintendent did not 

abuse her discretion in granting Froid’s petition to transfer the Transfer Territory?

¶13 Section 20-6-105(6), MCA, sets forth criteria that a county superintendent must 

consider in determining whether to grant or deny a petition for transfer of territory from 

one school district to another. In relevant part, the superintendent must weigh the effect 

that the proposed transfer will have on the following factors:
6

(a) the educational opportunity for the students in the receiving and 

transferring districts, including but not limited to:

(i) class size;

(ii) ability to maintain demographic diversity;

(iii) local control;

(iv) parental involvement; and 

(v) the capability of the receiving district to provide educational services;

(b) student transportation, including but not limited to:

(i) safety;

(ii) cost; and

(iii) travel time of students;

(c) the economic viability of the proposed new districts, including but not 

limited to:

(i) the existence of a significant burden on the taxpayers of the district from 

which the territory will be transferred;

(ii) the significance of any loss in state funding for the students in both the 

receiving and transferring districts;

(iii) the viability of the future bonding capacity of the receiving and 

transferring districts, including but not limited to the ability of the receiving 

district and the transferring district to meet minimum bonding requirements;

(iv) the ability of the receiving district and the transferring district to maintain 

sufficient reserves[.]

Section 20-6-105(6), MCA. “If, based on a preponderance of the evidence, the county 

superintendent determines that the evidence on the effects described in subsection (6) 

supports a conclusion that a transfer of the territory is in the best and collective interest of 

students in the receiving and transferring districts and does not negatively impact the ability 

of the districts to serve those students, the county superintendent shall grant the transfer.” 

Section 20-6-105(8), MCA.

¶14 Here, the Acting Superintendent made specific findings with respect to each effect 

described in the territory transfer statute and concluded that, “[b]ased upon a 

preponderance of the evidence, the evidence of the effects described in 

[§ 20-6-105(6), MCA,] supports a conclusion that the transfer of the Territory is [in] the 
7

best and collective interest of the students in the receiving and transferring districts and 

does not negatively affect the ability of the districts to serve those students.” 

¶15 Poplar contends that under the plain language of the transfer statute, the finding of 

“any negative impact at all” on either Poplar or Froid should preclude the transfer. It asserts 

that the Acting Superintendent ignored evidence of multiple negative impacts on 

Poplar and Froid and thus that her decision to grant the transfer constitutes an abuse of 

discretion. Specifically, Poplar contends that the hearing evidence demonstrated that the 

proposed transfer will result in a significant tax burden on Poplar residents and in a loss in 

funding for its students; that the Acting Superintendent impermissibly considered evidence 

of other funding to offset these financial burdens; and that, contrary to the 

Acting Superintendent’s determination, the transfer would not positively impact 

transportation for Froid. We address each contention in turn.

Tax burden

¶16 “[T]he burden imposed on taxpayers within the district from which the territory will 

transfer is a factor the [county superintendent] must consider[]” in applying 

§ 20-6-105(6), MCA. Dutton, ¶ 15. The Acting Superintendent made the following 

relevant findings with respect to the potential tax burden of the proposed territory transfer: 

32. The current taxable value of the Transfer Territory is $2,246,517. 

Transferring the Territory would shift the taxable value of the Territory from 

[Poplar] to [Froid].

34. The taxes assessed, based on Poplar’s adopted base budget millage, 

generates [sic] $411,000 for [Poplar].

35. The Transfer could affect the residential property tax payers in [Poplar] 

but not in a material or significant way. The tax increase would amount to 
8

$24.29 on a house valued at $100,000 or on a $50,000 house there would be 

an increase of $12.

36. The proposed transfer represents a decrease in [Poplar’s] bonding 

capacity by 15.47% and a corresponding increase in [Froid’s] bonding 

capacity. Poplar’s bonding capacity would still remain viable even after the 

transfer.

Based on these findings, the Acting Superintendent concluded that the “burden on the 

taxpayers of the Poplar School District is negligible, . . . that the bonding capacity of both 

districts i[s] not significantly affected, and that Poplar School District will be able to 

maintain sufficient reserves.” 

¶17 Poplar asserts that this determination “minimized” or “ignored” testimony from the 

August 2018 territory transfer hearing suggesting that the transfer would cause a 26% loss 

in Poplar’s taxable valuation, a 36.6% tax increase for Poplar taxpayers, and a reduction in 

Poplar’s bonding capacity of up to 27%1—all relevant considerations under the territory 

transfer statute. Relying on our holding in Dutton, Poplar argues that these factors 

“gravitate[] against approval” of the territory transfer petition.

¶18 In Dutton, ¶ 6, a territory transfer panel denied Conrad High School and Elementary

Districts’ (“Conrad”) petition to transfer to Conrad territory from Dutton-Brady K-12 

 

1 Poplar asserts that the Acting Superintendent overlooked the territory transfer’s full impact on 

its bonding capacity. Specifically, it points to testimony from Froid Superintendent Ken Taylor 

that a bonded project related only to the elementary district would reduce Poplar’s bonding 

capacity by 27%. The Acting Superintendent’s findings mention a 15.47% reduction in bonding 

capacity, a figure that includes Poplar’s High School District. As Froid correctly notes, however, 

the Acting Superintendent is charged with considering the viability of the districts’ future bonding 

capacity. She heard testimony that Poplar had no bonded debt as of 2018 and that it can bond 

100% of its bonding capacity. The Acting Superintendent’s finding was based on the testimony

and evidence presented and does not demonstrate an abuse of discretion in light of the entire 

record. 
9

School District (“Dutton-Brady”). The panel determined that the transfer was not in the 

collective best interests of the Conrad and Dutton-Brady students based in part on the 

43% reduction in Dutton-Brady’s taxable value and a 50% increase in taxes for 

Dutton-Brady landowners. Dutton, ¶¶ 11-12. The district court affirmed, noting that the 

panel “considered the evidence of the transfer’s effects, as provided in 

§ 20-6-105(6), MCA, and ‘acted with reason, consideration, and an understanding of 

[its statutory] obligation[.]’” Dutton, ¶ 13. The court further concluded that the tax 

implications for Dutton-Brady were substantial and, standing alone, supported the panel’s 

conclusion. Dutton, ¶ 13. We affirmed the district court’s review, reasoning that the 

“panel, in accordance with § 20-6-105, MCA, carefully evaluated the effects of the 

proposed transfer and made its decision based upon the best and collective interests of all 

students involved.” Dutton, ¶ 15. 

¶19 Poplar asserts that because the territory transfer at issue will impose a significant 

tax burden on Poplar taxpayers comparable to that in Dutton, the Acting Superintendent 

should have denied the transfer request like the panel did in that case. But as Froid points 

out, our holding in Dutton does not establish a threshold at which point a tax burden 

becomes unreasonable or requires the denial of a territory transfer petition. Rather, the 

specific figures and percentages referenced in Dutton demonstrated the panel’s careful 

consideration of the economic viability of the proposed transfer in accordance with its 

statutory obligation. As we explained, “[a]lthough Conrad Schools may disagree with the 

panel’s findings and conclusions, nothing in the record before us indicates the panel acted 

arbitrarily or capriciously in issuing its decision.” Dutton, ¶ 15. 
10

¶20 Although the Acting Superintendent reached an outcome different from that in 

Dutton, she employed the same “careful[] evaluat[ion]” in applying the criteria of 

§ 20-6-105(6), MCA. The Acting Superintendent’s findings and conclusions with respect 

to the territory transfer’s tax burden find substantial support in the testimony of multiple 

witnesses at the territory transfer petition hearing. Froid Superintendent Ken Taylor 

testified that, for Poplar taxpayers, the transfer would add $24.29 of “additional taxation 

per year” to a house valued at $100,000; $12 of additional taxation per year to a house 

valued at $50,000; $48.58 of additional taxation per year to a house valued at $200,000,

and so forth. Taylor based his testimony on over twenty pages of data he compiled from 

the Office of Public Instruction in preparation for the hearing. Poplar School District Board

chairperson Deborah McGowan testified that, based on conversations she had with four or 

five neighbors, even a $25 per year tax increase would “significant[ly] burden” roughly 

half of Poplar taxpayers, but then conceded on cross-examination that she did not discuss 

“specific numbers” with any of the individuals. And Poplar Superintendent Dan Schmidt

testified that the transfer would burden Poplar taxpayers, but provided no support for this 

assertion other than “I just don’t see that being a reasonable amount[,]” and admitted that 

$25 was not a significant amount to him personally. 

¶21 We conclude that despite the presentation of evidence to the contrary, the record 

does not reflect that the Acting Superintendent acted arbitrarily or capriciously when she 

concluded that the territory transfer would not impose a significant tax burden on Poplar 

taxpayers. Her decision was supported by a preponderance of the evidence presented at 

the hearing, see Dutton, ¶ 15, and thus did not constitute an abuse of discretion. 
11

Impact Aid

¶22 The Acting Superintendent determined that Poplar’s access to Federal Impact Aid 

and state guaranteed tax base (“GTB”) funding would alleviate any tax revenue loss the 

territory transfer may cause. She made the following relevant findings:

13. The loss of state funding for the students in [Froid and Poplar] is minimal. 

The amount of general fund money, the impact aid, the GTB, allocated by 

the Montana Office of Public Instruction is based upon the number of 

students. Because the number of students in each district will be the same[,] 

these funds allocated by the Montana Office of Public Instruction will remain 

the same.

33. The Transfer would cause no loss of state or federal funding to [Poplar].

37. [Poplar] maintains operating reserves in its General Fund, 

Transportation, and Retirement Fund. [Poplar] also had $5,889,519 in 

end fund balance for SY 2017[;] of that amount $3,383,060 is in its 

Impact Aid Fund. [Poplar] anticipates receiving approximately the same 

amount of Impact Aid Funds in the current fiscal year. Even with losing the 

Transfer Territory, state and federal funding would permit [Poplar] to 

maintain sufficient reserves given the reserves[’] current balances and how 

[Poplar] is funded.

¶23 Poplar contends that the availability of federal funding falls outside the scope of 

§ 20-6-105(6), MCA, and that the Acting Superintendent abused her discretion in 

considering it. But as Froid points out, the territory transfer statute does not limit the county 

superintendent’s analysis to those criteria expressly listed in the territory transfer statute. 

The statute’s plain language directs the superintendent to consider the impact that the 

proposed transfer would have on “the economic viability of the proposed new districts, 

including but not limited to” significant taxpayer burden, loss in state funding for students, 

viability of future bonding capacity, ability to maintain sufficient reserves, and the 

cumulative effect of other transfers of territory in the previous eight years on the 
12

transferring district’s taxable value. Section 20-6-105(6)(c), MCA (emphasis added). The 

statute did not preclude the Acting Superintendent from considering all available funding

in assessing economic viability.

¶24 Poplar next argues that “it is undisputed that GTB funding would not alleviate the 

loss of tax revenue in the other funds sensitive to increases and decreases in taxable 

valuation[]”—namely, Poplar’s transportation and the bus depreciation funds. Ken Taylor 

testified, however, that the land transfer would not impact the bus depreciation fund. And

Deborah McGowan agreed that any anticipated loss in funding would not negatively 

impact the students. But even assuming that GTB funding could not be used to offset any 

actual loss of tax revenue in the transportation or bus depreciation funds, Taylor testified

that Federal Impact Aid money, on the other hand, “can be used for pretty much anything 

that you would like it to be used for.” And both he and Dan Schmidt testified that the 

transfer would not impact the availability of Federal Impact Aid funding. 

¶25 For these reasons, we are unpersuaded that the Acting Superintendent abused her 

discretion by considering Poplar’s receipt of Federal Impact Aid and GTB funding in her 

analysis. 

Transportation

¶26 Section 20-6-105(6)(b), MCA, directs the county superintendent to consider the 

potential impact a proposed territory transfer will have on student transportation, including 

but not limited to safety, cost, and travel time of students. Here, the Acting Superintendent 

made the following findings with respect to transportation:
13

16. Currently the students in the [t]ransfer area are transported to Froid by 

buses belonging to [Froid].

17. Froid has transported children from the eastern half of the transfer area 

since 1963 to Froid.

18. Froid has transported children from the western half of the transfer area 

to Froid since 1994.

19. Froid has newer buses and the drivers are experienced.

20. The eastern boundary of the transfer are[a] is eight miles from Froid and 

the western boundary is 16 miles from Poplar.

28. Poplar does not provide transportation services to some portions of the 

Transfer Territory while Froid is currently providing transportation services 

to most of the elementary-age students in the Transfer Territory. Most

students residing in the Transfer Territory have a shorter and safer route to 

Froid than to Poplar. Froid is able to continue to serve the Transfer Territory 

with a minimum duplication and cost to the taxpayers. 

29. The proposed transfer will improve the safety of student transportation 

because Froid would be able to send buses into any part of the 

Transfer Territory as needed to serve particular students which is not 

currently possible.

On appeal, Poplar asserts that the Acting Superintendent’s “heavy reliance” on the 

“transportation safety issues” was erroneous and that these issues “do not gravitate in favor 

of either Froid or Poplar” because of the “sheer size” of the Transfer Territory. 

We disagree. 

¶27 The Acting Superintendent’s determination regarding these issues finds ample 

support in the record. For example, Martin Qualley, a life-long resident of the 

Transfer Territory who has driven a school bus for Froid since 1989, testified that Froid 

has “safely and efficiently” transported children from the Transfer Territory for “up to 55 

years.” He also testified that nine of the eleven elementary-age students living in the 
14

Transfer Territory attended Froid, while the remaining two attended Poplar, and that Froid 

lies closer to the Transfer Territory’s eastern border than Poplar does to its western border. 

Both Poplar Superintendent Schmidt and Froid Superintendent Taylor corroborated this 

testimony. 

¶28 Poplar emphasizes testimony by Schmidt and Deborah McGowan that the eleven 

students in question live in a concentrated area of the Transfer Territory, but it is unclear 

how or whether this fact shows that granting the transfer would have a negative impact on

the safety, cost, or travel time of transporting students to Froid from the Transfer Territory. 

The Acting Superintendent carefully considered the testimony presented on the effect on 

student transportation as required under the territory transfer statute. She did not abuse her 

discretion when concluding that the impact on student transportation weighed in favor of 

granting the territory transfer.

¶29 In conclusion, the Acting Superintendent’s decision to grant the transfer petition 

was supported by testimony presented at the August 2018 hearing. The District Court 

correctly determined that the Acting Superintendent did not abuse her discretion. 

¶30 2. Whether the Court should consider Poplar’s argument that the territory transfer 

statute is facially unconstitutional?

¶31 Poplar contends that the territory transfer statute is unconstitutionally vague on its 

face. Froid and the Attorney General contend that Poplar’s argument is barred by the 

doctrines of collateral estoppel and res judicata because Judge McKeon resolved the 

identical challenge during the 2013 territory transfer petition litigation. 
15

¶32 “Collateral estoppel, or issue preclusion, bars the reopening of an issue that has been 

litigated and determined in a prior suit.” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 

331 Mont. 281, 130 P.3d 1267 (citation omitted). Res judicata, or claim preclusion, bars 

the relitigation of a claim that the party asserting the claim already has had an opportunity 

to litigate. Baltrusch, ¶ 15 (citation omitted). “This includes claims that were or 

could have been litigated in the first action.” Adams v. Two Rivers Apts., LLLP, 

2019 MT 157, ¶ 8, 396 Mont. 315, 444 P.3d 415 (citation omitted). 

¶33 Collateral estoppel applies if: (1) the identical issue raised was previously decided 

in a prior adjudication; (2) a final judgment on the merits was issued in the prior 

adjudication; (3) the party against whom the plea is asserted was a party or in privity with 

a party to the prior adjudication; and (4) the party against whom preclusion is now asserted 

was afforded a full and fair opportunity to litigate the issue. Adams, ¶ 9 (citation omitted). 

¶34 The first collateral estoppel element requires that the issue in the instant case be 

identical to the issue in the prior case. Planned Parenthood v. State, 2015 MT 31, ¶ 13, 

378 Mont. 151, 342 P.3d 684 (citation omitted). In other words, the precise question 

involved in the second case must have been raised and determined in the former case. 

Planned Parenthood, ¶ 13 (citation omitted). We compare the pleadings, evidence and 

circumstances surrounding the two actions to determine whether the issues are identical. 

Baltrusch, ¶ 25 (citation omitted). 

¶35 In litigating the 2013 territory transfer petition, Poplar raised the identical issue of 

the territory transfer statute’s facial validity, arguing, as it does here, that it did not provide 

reasonably clear and definite standards, objective criteria, and ascertainable limits to guide 
16

the acting superintendent in making the transfer decision. That case involved identical 

circumstances—Froid’s petition to acquire the same Transfer Territory from Poplar and 

Poplar’s opposition to the transfer. The first element of collateral estoppel is satisfied. 

¶36 The second element also is met. In determining whether there has been a final 

judgment on the merits, we must look to see “if the issue was actually litigated and 

adjudged as shown on the face of the judgment.” Gibbs v. Altenhofen, 2014 MT 200, ¶ 23, 

376 Mont. 61, 330 P.3d 458 (citation omitted). The prior decision must have been 

“adequately deliberated and firm, even if not final in the sense of forming a basis for a 

judgment already entered[.]” Baltrusch, ¶ 22 (quoting Restatement Second of Judgments, 

§ 12, cmt. g (1982)); see also Gibbs, ¶ 23 (court adequately deliberated its decision where 

it heard parties on the issues in briefing and at a summary judgment hearing, and supported 

its decision with a 10-page opinion).

¶37 In denying Poplar’s identical argument and upholding the constitutionality of the 

territory transfer statute, Judge McKeon “adequately deliberated” his decision. As in 

Gibbs, ¶ 23, he based his determination on briefing by the parties and a summary judgment 

hearing and devoted seven pages of his order to addressing the territory transfer statute’s 

constitutionality. Poplar had the opportunity to appeal the decision to uphold the territory 

transfer statute’s constitutionality but declined to do so. The decision in the prior 

adjudication—the 2013 territory transfer petition litigation—was final.

¶38 The third and fourth elements of collateral estoppel similarly are satisfied. Poplar 

was a party to the 2013 transfer petition case and was afforded a full and fair opportunity 

to litigate the issue of the territory transfer statute’s constitutional validity. It chose for 
17

whatever reason not to appeal Judge McKeon’s decision upholding the statute’s 

constitutionality. Thus, under the doctrine of collateral estoppel, Poplar is precluded from 

asserting its facial constitutional challenge to § 20-6-105, MCA. 

¶39 Likewise, we conclude that res judicata bars Poplar’s facial constitutional challenge

to the territory transfer statute. Res judicata applies if the five following elements have 

been satisfied: (1) the parties or their privies are the same; (2) the subject matter of the 

present and past actions is the same; (3) the issues are the same and relate to the same 

subject matter; (4) the capacities of the persons are the same in reference to the subject 

matter and to the issues; and (5) a final judgment has been entered on the merits in the first 

action. Adams, ¶ 8 (citation omitted). 

¶40 Poplar and Froid were parties to the 2013 territory transfer petition litigation. Like 

the present case, the 2013 case involved Froid’s petition to acquire the Transfer Territory 

from Poplar, which Poplar opposed. Additionally, the issues are the same and relate to the 

same subject matter: Poplar argues that the Transfer Territory should not be transferred to 

Froid in part because § 20-6-105, MCA, is facially unconstitutional. Finally, 

“summary judgment is a final judgment on the merits for purposes of claim preclusion.” 

Gibbs, ¶ 13 (citation omitted). As set forth above, Judge McKeon awarded summary

judgment to Froid on this very issue, upholding the territory transfer statute’s constitutional 

validity. Accordingly, all five elements of res judicata are satisfied, precluding Poplar’s 

claim that § 20-6-105, MCA, is unconstitutional on its face.

2

 

2 Poplar asserts that the finality element is not satisfied for purposes of collateral estoppel or 

res judicata. Its arguments sidestep the well-settled requirements for finality under both doctrines 
18

¶41 3. Whether the territory transfer statute is unconstitutional as applied to Poplar?

¶42 Poplar asserts that the District Court violated its due process rights by impermissibly 

relying on the fact that tax-exempt tribal lands make up the Transfer Territory and that 

Poplar receives significant federal funding to mitigate the effect of the transfer. But as the 

Attorney General points out, Poplar—a political subdivision of the State—does not possess 

a due process right. See, e.g., The Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 

390, 804 P.2d 376, 379 (1991) (“State agencies have never been included under the 

umbrella of the right to due process[,]” which “were designed to protect people from 

governmental abuses[]” and not “to protect the government from the people.”).

CONCLUSION

¶43 The Acting Superintendent did not abuse her discretion in granting Froid’s territory 

transfer petition. The order of the District Court is affirmed. 

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE

 

and are not well-taken. See, e.g., Tungsten Holdings, Inc. v. Kimberlin, 2000 MT 24, ¶ 36, 

298 Mont. 176, 994 P.2d 1114 (party’s failure to cross-appeal summary judgment ruling in prior 

case barred relitigation of that claim in subsequent proceeding under claim preclusion); 

Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ¶ 26, 366 Mont. 78, 285 P.3d 494 (“[W]e have held 

that summary judgment is a final judgment on the merits for purposes of claim preclusion.”); 

Gibbs, ¶ 23 (issue preclusion applies where summary judgment determination in prior action was 

subject to appeal and party declined to exercise right to appeal).