No. 85-512 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

RONALD D. RAKER and ANDREA D. 

BAKER, 

Plaintiffs and Appellants, 

GERALDINE BINK, and the Mill Levy 

for SCHOOL DISTRICT NO. 97, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County 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 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Submitted on Briefs: July 10, 1986 

Decided: October 9, 1986 

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Filed: .'9& 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Ronald and Andrea Baker appeal an order from the Cascade 

County District Court denying their petition to invalidate 

the election and mill levy held in School District No. 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 

issue as one of mootness. 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 105 votes in the election to Reevert's 97, 

for an eight vote margin of victory. The mill levy was 

approved by a similar eight vote margin. Ronald Baker lost 

his bid for a seat on the Board by 60 votes. 

On April 9, 1984, the Bakers filed a complaint with the 

Cascade County District Court challenging the validity of the 

entire election. The complaint was dismissed without 

prejudice on April 23, 1984. On August 20, 1984, the Bakers 

filed a petition contesting the election of Bink and the 

passage of the mill levy pursuant to § 13-36-101, MCA. They 

contended that Bink received illegal votes in the election 

and gave two reasons for their contention. First, the Bakers 

argued that several voters did not meet the residency 

requirements as mandated by Montana law. Second, the Bakers 

argued that several absentee ballots were tainted due to 
improper 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 irregularities alleged by the Bakers; 

(2) the number of contested votes would not affect the 

outcome of the elective position sought by 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 opened by 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, 194 P.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 

nominations or elections; 

(2) whenever the person whose right is 

contested was not, at the time of the 

election, eligible to such office; 

(3) on account of illegal votes or an 

erroneous or fraudulent count or canvass 

of votes. 

The remedy in the event illegal votes have been counted 

is stated in 5 13-36-212, MCA: 

If, in any case of a contest on the 

ground of illegal votes, it appears that 

a person other than the one returned has 

the highest number of legal votes after 

the illegal votes have been eliminated, 

the court must declare such person 

nominated or elected, as the case may be. 

We believe that questions as to the validity of the 

election are moot. Our reasoning is that due to the passage 

of time, an actual controversy no longer exists and no remedy 

for the situation is possible. Mrs. Bink's one-year term of 

office expired in May 1985 and therefore, she cannot be 

ousted from an office she no longer holds. 

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 it unless he can show that 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 in any election irregularities. Honest mistakes 
of public officials should not be permitted to disenfranchise 

duly qualified electors. State ex rel. Van Horn v. Zyon 

(1946), 119 Mont. 212, 173 P.2d 891. It is admitted that the 

election officials could have been more prudent in following 

the procedure for absentee voting. Evidence was presented 

that several ballots were distributed to acquaintances of the 

absentee voters and that ballots were 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 

election of the trustee position sought by Mr. Baker since he 

lost by some 60 votes. Further, the evidence supports the 

finding that the absentee ballots were opened by the election 

judges and 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: 

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