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,Judge presiding. 

Counsel of Record: 

For Appellant: 

Stephens Law Firm, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Submitted on briefs: October 23, 1980 

Decided: March 23, 1981 

Filed: 

MAR 2 3 1981 

Clerk 
Mr. 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. 

On April 12, 1974, a complaint was filed in the Justice 

Court, Billings Township, Yellowstone County, Montana, 

alleging that Sylvia C. Warden had on March 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 . 

Defendant was 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 

argument between the defendant, as the parent of Miracle 

Stapp, and her counselor in that school, Lynette Little. 

There was a confrontation between the two over the alleged 

treatment of the daughter by Lynette Little regarding judgments 
she had made concerning the daughter's clothing and apparel. 

It was agreed that the name had been called, that the matter 

had occurred on school grounds, and that Lynette Little was 

a teacher. The appeal was submitted to the District Court 

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 appeal was filed May 24, 1974. The 

stipulation of facts is undated, but bears a blank for 

signature in the month 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 on March 1, 1976. On December 10, 1976, the district 

judge issued his order sustaining the constitutionality of 

the section and dismissing the appeal from the Justice 

Court. 

The Justice Court docket reveals that on December 14, 

1976, "[tlhe appeal bond in the amount of $50.00 returned to 

Justice Court and applied to the fine imposed by a trial by 

jury held in Justice Court." 

Apparently a copy of the District Court order dismissing 

the appeal was 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 Court was 

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 the 
long lapse of time since the incident here occurred, the 

young high schooler has presumptively grown into young 

womanhood, the teacher may no longer be a member of the 

school system at the present time, and the fine levied upon 

the defendant has long since been 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 court may take will have no affect on the parties to the 

action. Lord v. City of Tucson (1969), 10 Ariz.App. 54, 455 

l as ltl 

P.2d B. 

The appeal is dismissed as moot. 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. I have my 

doubts that it is properly here on appeal because I do 

not believe that it is an appeal from a final judgment 

of guilt in District Court. 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 appeal which comes to 

us from the District Court, does not come from a final 

judgment in District Court. 

Nor do I agree that the case should be dismissed as 

moot; nor do I agree that the reasons given for mootness 

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 (deposited as an appeal bond 

to District Court) has been converted by the Justice Court 

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 to the 

treasury before the defendant learns of the adverse ruling. 

That is strange and inequitable law. It's potential for 

harm is obvious. 

Nor do I believe that this Court or any court of 

proper jurisdiction, is powerless to order the return of 

the money. The fact is, the State, through its agents, 

(here, the District Court and Justice Court) acted improperly. 

Does the majority opinion mean that these courts cannot undo 

what they have done? If it does mean this, courts are powerless to rectify wrongs of their own making--again, another 

strange legal doctrine. 

Once the constitutional question was submitted to the 

District Court and decided, that court has no right to 

dismiss the appeal and in effect let the justice court judgment 

become operative. Rather, once the District Court ruled 

against defendant, he should have set the case for jury trial 

on the merits, or determined if defendant would waive a 

jury trial and try the case to the judge on the merits. 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 to apply 

the money to the payment of the fine. Both court actions 

were illegal. This illegal action is compounded by the 

failure of the District Court to give notice to defense 

counsel of its ruling on the constitutional question and of 

its dismissal of the appeal. There is no question here that 

it was the District Court, by its failure to notify defendant 

of the decision and dismissal, deprived defendant of her 

ability to protect herself. To this problem, the majority 

simply decides the case is moot because the fine has made its 
way into the public coffers and that we are powerless to 

order its return. If a court does not have the power to 

rectify such a wrong 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 such power. 

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 (December 10, 1976) and 

the time defense counsel claims to have first heard 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 themselves whether 

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 I do not say 

that laches does apply in such a situation, there is no 

doubt that a good argument can be made. 

Nonetheless, I do feel we are committing an injustice 

by holding that the case is moot, and we have compounded 

that injustice by the grounds used