No. 01-856 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 310N 

ALLISON CHAPMAN, 

Plaintiff and Appellant, 

v. 

STATE OF MONTANA, CHOUTEAU COUNTY 

SHERIFF'S DEPARTMENT, CHOUTEAU COUNTY 

JUSTICE OF THE PEACE HELEN THORNTON, 

CHOUTEAU COUNTY JUSTICE OF THE PEACE 

SUSAN SPENCER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

District Court of the Twelfth Judicial District, 

In and for the County of Chouteau, 

The Honorable David Cybulski, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allison Chapman (pro se), Geraldine, Montana 

For Respondents: 

Hon. Mike McGrath, Attorney General; Pamela D. Bucy, 

Assistant Attorney General, Helena, Montana 

Allin H. Cheetham, Chouteau County Attorney, Fort Benton, Montana 

 Submitted on Briefs: August 29, 2002 

Decided: December 13, 2002 

Filed: 

__________________________________________ 

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court. 
3 

¶1 Pursuant to Section I, Paragraph 3(c), of the Montana Supreme 

Court 1996 Internal Operating Rules, the following decision shall 

not be cited as precedent but shall be filed as a public document 

with the Clerk of the Supreme Court and shall be reported by case 

title, Supreme Court cause number, and result, to the State 

Reporter Publishing Company and to West Group in the quarterly 

table of noncitable cases issued by this Court. 

¶2 The Appellant, Allison Chapman, filed a complaint against the 

State of Montana, the Chouteau County Sheriff’s Department, and two 

Chouteau County Justices of the Peace on February 15, 2001, in the 

Eighth Judicial District Court for Cascade County. She alleged 

that the Defendants’ practice of imposing bail was 

unconstitutional. The State filed a motion to change venue and 

venue was changed to the Twelfth Judicial District Court for 

Chouteau County on March 26, 2001. On November 13, 2001, the 

Twelfth Judicial District Court dismissed Chapman’s complaint and 

she appeals both the change of venue and the dismissal of her 

claim. We affirm the judgments of both District Courts. 

¶3 Chapman raises two issues on appeal. We restate the issues as 

follows: 

¶4 1. Did the Eighth Judicial District Court err when it ordered 

that venue be changed to the Twelfth Judicial District Court for 

Chouteau County? 

¶5 2. Did the Twelfth Judicial District Court err when it 

dismissed Chapman’s complaint based on lack of standing? 
4 

¶6 On May 22, 2000, Allison Chapman was arrested in Chouteau 

County by officer Vern Burdick of the Chouteau County Sheriff’s 

Department for failing to provide proof of liability insurance, 

disorderly conduct and careless driving. No bail was imposed by 

officer Burdick during Chapman’s two hour detention at the 

sheriff’s office. Neither did Justice of the Peace Helen Thornton 

impose bail and Chapman was released on her own recognizance. 

¶7 On February 15, 2001, Chapman filed a complaint in the 

District Court for the Eighth Judicial District in Cascade County 

in which she named the State of Montana, the Chouteau County 

Sheriff’s Department, Chouteau County Justice of the Peace Susan 

Spencer, and Chouteau County Justice of the Peace Helen Thornton as 

defendants. The complaint asked that the court declare the 

Defendants’ practice of demanding bail for non-jailable offenses 

pursuant to § 46-9-302, MCA, was unconstitutional and that § 46-9-

302, MCA, violated her constitutional right to due process of law. 

 Although neither the JP court nor the Sheriff’s Department imposed 

bail on Chapman, she argued that the events of May 22, 2000, were a 

“very close call” and required that the court declare that the 

Defendants’ practice of bail imposition in her case, and similar 

cases, would be unconstitutional. 

¶8 The Chouteau County Sheriff’s Department, Justice of the Peace 

Thornton and Justice of the Peace Spencer were served with the 

complaint on February 21, 2001. Chouteau County Attorney, Allin 

Cheetham, filed a motion to dismiss on behalf of the defendants. 

The motion was not supported with a brief and was denied without 
5 

consideration of the merits of Chapman’s allegations. Cheetham did 

not file a motion to change venue. 

¶9 The State of Montana was served with Chapman’s complaint 

through the Attorney General’s office on March 6, 2001. The State 

filed timely motions to change venue and to 
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dismiss Chapman’s complaint on March 16, 2001. Both motions were 

supported by briefs. Judge McKittrick, of the Eighth Judicial 

District Court, granted the State’s motion for a change of venue 

and ordered that venue be changed from the Eighth Judicial District 

Court to the Twelfth Judicial District Court. 

¶10 Following the change of venue, Chapman filed a motion to 

substitute Twelfth Judicial District Court Judge John Warner 

because of alleged bias. Judge David Cybulski, judge for the 

Fifteenth Judicial District Court, accepted jurisdiction in place 

of Judge Warner. On November 13, 2001, Judge Cybulski granted the 

State’s motion to dismiss for lack of standing and Chapman’s 

failure to demonstrate how § 46-9-302, MCA, deprived any person of 

liberty without due process. 

STANDARD OF REVIEW 

¶11 The standard of review with regard to a district court’s 

decision to change venue is whether the district court’s 

conclusions of law are correct. Wentz v. Montana Power Co. (1996), 

280 Mont. 14, 17, 928 P.2d 237, 238. This Court reviews a district 

court’s decision regarding standing to determine whether the 

district court’s conclusions of law are correct. See Ludwig v. 

Spoklie (1996), 280 Mont. 315, 318, 930 P.2d 56, 58. 

DISCUSSION 

ISSUE 1 

¶12 Did the Eighth Judicial District Court err when it ordered 

that venue be changed to the Twelfth Judicial District Court for 

Chouteau County? 
7 

¶13 Chapman maintains that the Eighth Judicial District Court was 

precluded from considering the State’s motion to change venue to 

the Twelfth Judicial District Court, because the State waived its 

right to change venue when it failed to request a change of venue 

in its first appearance. 

¶14 A defendant is permitted to move for a change in venue when 

the plaintiff brings his or her action in an improper county. 

Section 25-2-114, MCA. M.R.Civ.P, Rule 12(b)(ii), provides that: 

“If the county designated in the complaint is not the proper county 

for trial of the action, the defendant must at the time of the 

defendant’s first appearance request by motion that the trial be 

had in the proper county.” The proper venue for a suit brought by 

a Montana resident against the State is the county where the 

plaintiff resides, the county where the claim arose, or Lewis and 

Clark County. Section 25-2-126(1), MCA. The proper venue for an 

action against a political subdivision is the county in which the 

claim arose or any county where the political subdivision is 

located. Section 25-2-126(2), MCA. When a plaintiff brings an 

action against multiple defendants, a county that is the proper 

venue for one defendant is proper for all of the defendants. 

Section 25-2-117, MCA. However, if an action against multiple 

defendants is not brought in the proper county, any of the named 

defendants may request that the court move the action to the proper 

venue. Section 25-2-117, MCA. 

¶15 The Chouteau County Sheriff’s Department, Justice of the Peace 

Thornton, and Justice of the Peace Spencer were all served by 
8 

Chapman on February 21, 2001, and appeared before the Eighth 

Judicial District Court on February 26, 2001, without raising an 

objection to venue. The State of Montana was not served until 

March 6, 2001. It made a timely first appearance on March 16, 

2001, by filing a motion to dismiss and a motion to change venue, 

which were both supported by briefs. In support of its motion to 

change venue, the State correctly identified the proper venue for 

Chapman’s action against the State to be the county where the claim 

arose, Chouteau County, the county where Chapman resided, Chouteau 

County, or Lewis and Clark County. It further contended that the 

proper venue for the remaining three defendants was the county in 

which the claim arose, Chouteau County, or the county where the 

political subdivision was located, Chouteau County. The State 

maintained that under no circumstances was Cascade County the 

proper place for trial and, therefore, a change of venue to 

Chouteau County was necessary. 

¶16 The State of Montana complied with M.R.Civ.P, Rule 12(b)(ii), 

when it requested a change of venue to the proper county in its 

first appearance before the court on March 16, 2001. Furthermore, 

the State was permitted to move for a change of venue for the other 

defendants pursuant to § 25-2-117, MCA. We conclude the Eighth 

Judicial District Court was correct when it granted the State’s 

motion for a change of venue and transferred Chapman’s claim to the 

Twelfth Judicial District Court in Chouteau County. 

ISSUE 2 

¶17 Did the Twelfth Judicial District Court err when it dismissed 

Chapman’s complaint based on lack of standing? 
9 

¶18 Chapman contends that she has standing to sue because she was 

arrested, held for two hours for offenses that are not normally 

jailable, and threatened with the imposition of bail. Chapman 

asserts she has standing to sue despite the fact that no bail was 

imposed in her case. She contends that because the State is 

capable of imposing illegal bail in the future, her claim is not 

moot pursuant to Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct 705, 35 

L.Ed.2d 147. 

¶19 In Roe v. Wade, 410 U.S. at 124, 93 S.Ct at 712, the United 

States Supreme Court held that there was no doubt a case and 

controversy existed and Roe had standing to sue when she originally 

challenged Texas’ abortion laws. However, due to the nature of a 

pregnancy and its gestation period, the injury Roe suffered when 

she brought her original suit, the inability to obtain a safe and 

legal abortion, no longer existed. Roe, 410 U.S. at 125, 93 S.Ct 

at 713. The Court found that Roe was capable of becoming pregnant 

again and that Texas law would prevent her from legally and safely 

obtaining an abortion in the future. Roe, 410 U.S. at 125, 93 S.Ct 

at 713. Therefore, the Court concluded that her case or 

controversy was capable of repetition, yet evading review, and was 

not moot even though she was not pregnant at the time. Roe, 410 

U.S. at 125, 93 S.Ct at 713. 

¶20 Roe v. Wade is not applicable to the present case. Neither 

the Sheriff’s Department nor the Justice of the Peace required 

Chapman to post bail. Unlike Roe, who was injured by the Texas 

law, Chapman has suffered no injury. It is undisputed that she was 

released on her own recognizance on May 22, 2001, and no bail was 
10 

imposed. Therefore, we conclude that Chapman’s reliance upon Roe 

v. Wade to establish standing in this case is misplaced. 

Furthermore, Chapman’s argument is based on mootness, rather than 

standing. The District Court concluded she lacked standing; it did 

not conclude that her claim was moot. Consequently, based upon the 

issues and arguments raised on appeal, we conclude that the 

District Court did not err when it held that Chapman lacked 

standing. 

¶21 We affirm both the order to change venue issued by the Eighth 

Judicial District Court and the order dismissing Chapman’s 

complaint issued by the Twelfth Judicial District Court. 

/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ JIM RICE 
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Justice James C. Nelson dissents. 

¶22 I dissent from the Court's decision on Issue 1. I disagree that the 

State's motion to change venue was timely filed and I would reverse on the venue issue and 

remand to the Eighth Judicial District Court without reaching the standing issue, Issue 2. 

¶23 The change of venue motion is improperly decided based on the record here. After 

the three county defendants had been served, but prior to the State being served, the County 

Attorney appeared on behalf of all four defendants by filing a motion to dismiss. Two 

grounds for dismissal were raised: (a) failure to state a claim and (b) immunity. Clearly, in 

failing to seek a change of venue, this appearance waived improper venue as to the county 

defendants under Rule 12(b)(ii), M.R.Civ.P. 

¶24 This appearance also waived the venue objection for the State, 

even though it had not been served, inasmuch as a voluntary general 

appearance by a defendant is a waiver of the issuance or service of 

the summons. Spencer v. Ukra (1991), 246 Mont. 430, 433, 804 P.2d 

380, 382. There is no dispute that the County Attorney’s motion 

was a general appearance. See Lords v. Newman (1984), 212 Mont. 

359, 361, 688 P.2d 290, 292; Spencer, 246 Mont. at 434-35, 804 P.2d 

at 383-84. Under § 7-4-2716(3), MCA, the County Attorney must 

"defend all suits brought against the state." Therefore, the County 

Attorney was properly representing the State at the time he made 

his motion and general appearance and regardless of whether the 

Attorney General would have preferred, after the fact, that not be 

the case. 
12 

¶25 We have wrongly decided the venue issue. Chapman is entitled 

to have his standing motion ruled upon by the proper trial court. 

¶26 I dissent. 

/S/ JAMES C. NELSON 

Justices Jim Regnier and W. William Leaphart join in the foregoing 

dissent. 

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART