No. 85-512 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

RONALD D. RAKER and ANDREA D. BAKER, Plaintiffs and Appellants,

GERALDINE BINK, and theMillLevy for SCHOOL DISTRICT NO. 97, Defendants and Respondents.

APPEAL FROM: DistrictCourt of theEighth JudicialDistrict, In and for theCounty of Cascade, The Honorable John McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Alexander & Baucus; Ward E. Taleff, Great Falls, Montana

For Respondent: Jardine, Stephenson, Blewett & Weaver; Lon T. Holden, Great Falls, Montana PatrickL. Paul, County Attorney, Great Falls, Montana

Submitted on Briefs: July 10, 1986 Decided: October 9, 1986 

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### .'9&Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Ronald andAndrea Baker appeal an order from the Cascade County District Court denying their petition to invalidate the election and mill levy held in School DistrictNo. 97 in April, 1984. Appellants ask whether it can be said to a mathematical certainty that irregularities in the election had no effect

on the election results, while the respondents phrase the issueas one ofmootness. We affirm. On April 3, 1984, an election was held in School District No. 97 in the City of Sun River, Montana. The voters were to select three trustees to the School Board and to approve or disapprove a mill levy. Respondent Geraldine Bink was seeking a one-year term as a trustee and her opponent was Stanley Reeverts. Appellant Ronald Baker was seeking election to a three-year term on the Board. Bink received 105votes in the election toReevert's 97, for an eight vote margin of victory. The mill levy was approved by a similar eight vote margin. Ronald Baker lost hisbid for a seaton theBoard by 60votes. On April 9, 1984,the Bakers filed a complaint with the Cascade County DistrictCourt challenging thevalidity of the entire election. The complaint was dismissed without prejudice onApril 23, 1984. On August 20, 1984, the Bakers filed a petition contesting the election of Bink and the passage of themill levypursuant to § 13-36-101,MCA. They contended that Bink received illegal votes in the election and gave two reasons for theircontention. First, theBakers argued that several voters did not meet the residency requirements asmandated by Montana law. Second,the Bakers argued that several absentee ballots were tainted due toimproper distribution and ta-bulation of the ballots by election officials. A trial was held before the District Court on May 13, 1985, one month after Geraldine Bink's one-year term as a school board trustee had expired. The court upheld the election as to both Bink and the mill levy finding that: (1) no candidate returned as elected participated in the irregularitiesalleged by the Bakers; (2) the number of contested votes would not affect the outcome of the elective position soughtby Mr. Baker; (3) there was no evidence that anyone other than the proper person voted on the absentee ballots, nor was there any evidence to show that any absentee ballot envelope had been openedby someone other than the election judges; (4) that whatever voting irregularities occurred did not stem from any corrupt or illegal purpose but were caused by election officials or third parties and had no effect on the election results. The School District argues the issue of mootness. We have repeatedly held that we will not pass upon moot questions. Adkins v. City of Livingston (1948), 121 Mont. 528, 194P.2d 238. In State ex rel. Miller v. Murray (1979), 183 Mont. 499, 503, 600 P.2d 1174, 1176,we stated that "a moot question is one which existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy." The Bakers rely on S 13-36-101,MCA, in their argument. The statute reads as follows: An elector may contest the right of any person to any nomination or election to public office for which the elector has the right to vote, for any of the following causes:(1) on the ground of a deliberate, serious, and material violation of any provision of the law relating to nominationsor elections;

(2) whenever the person whose right is contested was not, at the time of the election,eligible to suchoffice;

(3) on account of illegal votes or an erroneous or fraudulent count or canvass ofvotes. The remedy in the event illegalvotes havebeen counted is stated in 5 13-36-212,MCA: If, in any case of a contest on the ground of illegalvotes, it appears that a person other than the one returnedhas the highest number of legal votes after the illegal votes have been eliminated, the court must declare such person nominated orelected, as the casemay be. We believe that questions as to the validity of the election aremoot. Our reasoning is that due to thepassage of time,an actual controversyno longer existsand no remedy for the situation ispossible. Mrs. Bink's one-year term of office expired in May 1985 and therefore, she cannot be ousted fromanoffice she no longerholds. As to the sufficiency of the evidence, appellants did not prove to the District Court's satisfaction that illegal or fraudulent votes had been tallied. We discussed the burden of proof in an election contest in Martin v. State Highway Commission (1939), 107 Mont. 603, 614, 88 P.2d 41,

"It is a rule of well-nigh uniform recognition that, after an election has been held, a party will not be permitted to challenge itunlesshe can showthat a different result would have been reached but for the conditions of which he complains." The Bakers, neither of whom testified at trial, were unable to prove that Bink had received any illegal votes or
was involved inany election irregularities. Honest mistakesofpublic officials shouldnotbe permitted todisenfranchise duly qualified electors. State ex rel. Van Horn v. Zyon

(1946),119Mont. 212, 173 P.2d 891. It isadmitted that the election officials could have been more prudent in following the procedure for absentee voting. Evidence was presented that severalballotswere distributed to acquaintancesof the absenteevoters and that ballotswere counted even though the signatures on the absentee application envelopes and the ballots themselves were not in their proper places. However, the number of contested ballots would not have affected the electionof the trustee position soughtby Mr. Baker sincehe lost by some 60 votes. Further, the evidence supports the finding that theabsenteeballotswere opened by the election judgesand no one else. Lastly, we find sufficient evidence to support the District Court's finding that whatever voting irregularities occurred were caused by election officials or third parties and had no effect on Bink's election or the mill levy election. Affirmed.

We concur:

fi I Justice 

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