No. 80-43 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,
VS. SYLVIA C. WARDEN, Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial ~istrict, In and for the County of Yellowstone. Honorable Edward Dussault,Judgepresiding. Counsel of Record: For Appellant: Stephens Law Firm,Billings, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Harold F. Hanser, CountyAttorney, Billings,Montana

Submitted on briefs: October 23, 1980 Decided:March 23, 1981 Filed: 

## MAR

## 231981

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is from an order of the District Court, Thirteenth Judicial District, Yellowstone County, affirming the conviction of defendant Sylvia C. Warden in the Justice Court, Billings Township, of the offense of abuse of a school teacher. For the reasons following,we dismiss the appeal. OnApril 12, 1974, a complaint was filed in the Justice Court, Billings Township, YellowstoneCounty,Montana, alleging that Sylvia C. Warden had onMarch 29, 1974,purposely
or knowingly insulted a school teacher, Lynette Little, on school grounds in that county by calling the teacher an abusive and vulgar name, "a son of a b--", in violation of then section 75-6110, R.C.M. 1947,now section 20-4-303, MCA

# .Defendantwas found guilty upon trial by jury on May 23, 1974. The Justice Court assessed a fine of $50. On May 24, 1974, the defendant filed a written notice of appeal and provided a cash bond in the amount of $50. The appeal was submitted to the Thirteenth Judicial District Court,Yellowstone County, Montana, upon stipulated facts. From the stipulation, it appears that Sylvia C. Warden was a resident of Yellowstone County,Montana and had a school-aged daughter named Miracle Stapp. At the time of the alleged criminal conduct, the 13-year-old daughter was a student at Lewis and Clark Junior High School in ~illings. The alleged violation occurred during the course of an argumentbetween the defendant, as the parent of Miracle Stapp, and her counselor in that school, Lynette Little. There was a confrontationbetween the two over the alleged treatment of the daughter by Lynette Little regarding judgmentsshe had made concerning the daughter's clothing and apparel. Itwas agreed that the name had been called, that thematter had occurred on school grounds,and that Lynette Little was a teacher. The appeal was submitted to the DistrictCourt
on the sole issue that now section 20-4-303,MCA, was unconstitutional as it was applied to the defendant within the factual context agreed to. The notice of appealwas filed May 24, 1974. The stipulation of facts isundated, but bears a blank for signature in themonth of April 1975. The court on February 10, 1976, issued a briefing schedule order which provided that the matter should become submitted to the court for ruling onMarch 1, 1976. On December 10, 1976, the district judge issued his order sustaining the constitutionality of the sectionand dismissing the appeal from the Justice Court. The JusticeCourtdocket reveals that on December 14, 1976, "[tlhe appeal bond in the amount of $50.00 returned to JusticeCourt and applied to the fine imposed by a trial by jury held in JusticeCourt." Apparently a copy of the District Court order dismissing the appealwas not served upon counsel for the defendant. He learned of its existence on October 3, 1979,and filed notice of appeal to this Court on behalf of the defendant on October 25, 1979. At the time the notice of appeal to this Courtwas filed, the judgment of the Justice Court had been executed in that the fine levied against the defendant had been received and paid. There is no use in our setting out the constitutional arguments upon which the defendant bases her appeal. In thelong lapse of time since the incident here occurred, the young high schoolerhas presumptively grown intoyoung womanhood, the teacher may no longer be amember of the school system at the present time, and the fine levied upon the defendant has long sincebeen paid and deposited in the public treasury. We have no power to order its return. The judgment is executed. A question is moot when any action the courtmay take will have no affect on the parties to the action. Lord v. City of Tucson (1969),10Ariz.App. 54, 455 las

### ltl P.2d 

### B. The appeal is dismissed asmoot. Each party shall bear their own costs.

We Concur:



## ------------- 

# 74*&&-4 --

Justices This cause was submitted prior to January 5, 1981.Mr. Justice Daniel J. Shea dissenting: Procedurally,this is a strange case. Ihave my doubts that it isproperly here on appeal because Ido not believe that it is an appeal from a final judgment of guilt in DistrictCourt. The District Court, after deciding the constitutional issue against the defendant,
never held a trial on the merits to determine defendant's guilt or innocence. Because an appeal from a justice court conviction entitles a defendant to a trial de novo in District Court, the District Court had no right to dismiss the Justice court appeal after it decided the constitutional issue. Therefore, the appealwhich comes to
us from the District Court, does not come from a final judgment in DistrictCourt. Nor do Iagree that the case should be dismissed as moot; nor do I agree that the reasons given formootness
are grounds at all to dismiss for mootness. The reasons given for mootness are rather nonsensical: the age of the young girl now, and the fact that the school teacher may no longer be a teacher,has nothing to do with the issue placed before us by the parties to this appeal. They have asked us to determine whether section 20-4-303, MCA, is constitutional within the context of its application to defendant. Furthermore, to invoke the mootness doctrine on the ground that the fine money (depositedas an appeal bond to DistrictCourt) has been converted by the JusticeCourt into the public treasury and that we are powerless to order its return, is unjust to the extreme. The effect of this holding is that an appeal can be cut off if a judge fails to notify counsel of the ruling made and if the money -5-levied against the defendant can be deposited tothe treasurybefore the defendant learns of the adverse ruling. That is strange and inequitable law. It'spotential for harm isobvious. Nor do I believe that thisCourt or any court of proper jurisdiction, ispowerless toorder the return of themoney. The factis, the State, through its agents, (here, the District Court and JusticeCourt) acted improperly. Does themajority opinion mean that these courts cannot undo what they have done? If it does mean this, courts arepowerless torectifywrongs of their own making--again, another strange legal doctrine. Once the constitutional questionwas submitted tothe District Court and decided, that courthas no right to dismiss the appeal and ineffect let the justice court judgment become operative. Rather, once the District Court ruled against defendant, he should have set the case forjury trial
on themerits, ordetermined if defendant would waive a jury trial and try the case tothejudge on themerits. But, the District Court did neither. It follows that if the District Court had no right to dismiss the appeal, the Justice Court had no right toapply themoney tothe payment of the fine. Both court actions
were illegal. This illegalaction iscompounded by the failure of the District Court togive notice todefense counsel of its ruling on the constitutionalquestion and of its dismissal of the appeal. There isno question here that it was the District Court, by its failuretonotify defendant of the decision and dismissal, deprived defendant of her abilitytoprotect herself. To thisproblem, themajority simply decides the case ismoot because the finehas made itsway into the public coffers and thatwe are powerless to order its return. If a court does not have the power to rectify such awrong it should not long continue to function
as a court of justice. I am also satisfied that if the defendant got a favorable ruling from this Court on the constitutional question (assuming this case to be here properly on appeal), this Court has the power to order the money to be repaid to defendant and the District Court also has suchpower. If the appropriate county official failed or refused to pay back the money, I have no doubt that a writ of mandate would lie against that county officer to compel payment of the money to defendant. Even with these procedural problems underlined, I must admit that the record in this case reeks of a failure of defendant and her counsel to diligently pursue the matter. In District Court, almost three years elapsed between the time of the ruling (December10, 1976) and the time defense counsel claims to have firstheard of the adverse ruling dismissing the appeal (October 3, 1979). This case is hardly worthy of this Court's time in deciding the narrow constitutional question presented,when it is clear that neither defense counselnar his client were interested enough in the case to find out for themselveswhether
or not the District Court had ruled. A failure to make inquiry for almost three years shows a complete lack of diligence in pursuing the case. Although Ido not say that laches does apply in such a situation,there is no doubt that a good argument can be made. Nonetheless, Ido feelwe are committing an injustice by holding that the case ismoot, and we have compounded that injusticeby the grounds used