YO. 84-343 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

SCHOOL DISTRICT NO. 4, FORSYTH, 

MONTANA, 

Petitioner and Appellant, 

BOARD OF PERSONNEL APPEALS, and 

FORSYTH EDUCATION ASSOCIATION, NEA, 

NEA, 

Respondents and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles E. Erdmann, Helena, Montana 

For Respondent: 

Hilley & Loring, Great Falls, Montana 

James E. Gardner, Bd. of Personnel Appeals, Helena, 

Montana 

Submitted on Briefs: Nov. 20, 1984 

Decided: January 2, 1985 

Filed: 11.l ,? - 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the order of the District Court 

of the Sixteenth Judicial District, Rosebud County, granting 

the respondent's, Forsyth Education Association, motion to 

dismiss on the basis the petition filed was moot. 

Appellant School District No. 4, Forsyth, Montana, 

(School District) challenges the District Court's dismissal 

and its appeal from part of an order of the Board of 

Personnel Appeals. 

One issue is raised for consideration: Did the 

District Court err in dismissing count I of the School 

District's complaint for a declaratory judgment. 

Respondent, Forsyth Education Association, affiliated 

with the Montana Education Association and National Education 

Association, (Association) is the exclusive bargaining agent 

for the professional employees of the appellant, School 

District. The collective bargaining agreement between the 

parties expired July 1, 1381. While negotiating a new 

contract for the 1981-82 academic year, the School District 

paid its teachers at the same rate it had paid them in 

1980-81, and did not advance to them the amounts provided in 

the expired collective bargaining agreement. 

The Association believed the failure to advance 

teachers on the salary schedule contained in the expired 

collective bargaining agreement constituted a unilateral 

change in wages and a refusal to bargain in good faith. The 

School District argued it was maintaining status quo during 

negotiations. 

The Association filed an unfair labor practice charge 

with the Board of Personnel Appeals (BPA) on October 13, 
1981. On May 17, 1982, the BPA examiner found there had been 

no violation of the Public Employees Bargaining Act. In the 

meantime, a new contract was negotiated for the 1982-83 

academic year. The teachers were paid at a new salary level 

and received retroactive pay, at that new level, to the 

beginning of the 1981-82 school year. 

The Association filed exceptions to the BPA hearing 

examiner's proposed order. The BPA adopted its examiner's 

findings of fact, but concluded there had been a violation. 

The BPA ordered an amendment to the examiner's proposed 

order. 

The School. District filed exceptions and the matter was 

again argued before the BPA. In September of 1983, the BPA 

voted unanimously to affirm the amended order, finding an 

unfair labor practice based on the unilateral change in 

salaries. The appellant, School District petitioned the 

District Court for judicial review of the order and for 

declaratory judgment alleging: 

1. In count I the BPA erred in finding an unfair labor 

practice; and 

2. In count I1 the BPA, at the time it issued its 

administrative decision, was unlawfully constituted and its 

decision was therefore void. 

The Association filed a motion to dismiss count I of 

the petition for declaratory judgment on the grounds the 

School District had failed to state a claim upon which relief 

could be granted and on the ground of mootness. The 

Association argued that since the teachers had received 

retroactive pay at the new salary levels, neither the 

teachers nor the Association received any financial benefit 

and the School District experienced no financial detriment 
when the examiner issued the amended order in May 1983. 

Nothing would be gained or lost from the judicial review of 

the order. Therefore, the issue was moot. 

The District Court granted the Association's motion to 

dismiss the appeal as being moot. From that order, the 

School District appeals. 

The appellant School District argues the action was not 

moot and the District Court had jurisdiction to review the 

final order of the BPA. The appellant notes that underlying 

the motion to dismiss, the general rule is courts view such 

motions with disfavor and will grant them only when the 

complaint and the accompanying allegations show upon their 

face some insuperable barrier to relief, citing Buttrell v. 

McBride Land and Livestock (1976), 170 Mont. 296, 553 P.2d 

407; Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679. In 

reading the above cases, we find neither applicable in that 

Wheeler, supra, was decided on a disqualification of a judge 

in the time for filing the disqualification therein, and 

Buttrell, supra, was decided on the failure of the plaintiff 

to state a claim in its complaint. 

Appellant argues the question of whether a civil case 

has become moot is not, as argued by respondent, a simple 

issue. Appellant contends in this particular case an appeal 

from an administrative agency's final decision is involved, a 

decision which was settled prior to the administrative 

decision by the adoption by the parties of a collective 

bargaining agreement for 1981-82 contract. 

Appellant argues one important factor to be taken into 

consideration in determining the mootness of a case is what 

the United States Supreme Court has called on a number of 

occasions the "capable of repetition, yet evading review" 
doctrine. This doctrine is limited to a situation where two 

elements are combined: (1) the challenged action was in its 

duration too short to be fully litigated prior to the 

cessation or expiration; and (2) there was a reasonable 

expectation the same complaining party would be subjected to 

the same action again. Sosna v. Iowa (1975), 419 U.S. 393, 

95 S.Ct. 553, 42 L.Ed.2d 532. 

Considering the cases cited by both parties, we do not 

find a sufficient substantial interest to invoke the above 

doctrine. The BPA's finding that, in the absence of an 

"impasse," the School District must continue to pay the 

salaries of expired collective bargaining contracts pending 

agreement on a successful contract, does not warrant further 

action by this Court. Here the School District had already 

budgeted at least the amount in the expired contract for 

salaries and it suffers no loss. 

While the appellant School District argued the BPA had 

ordered it to automatically grant teachers' wage increases 

under the terms of the expired contract, we find no such 

ruling by the BPA in its order. It simply ordered that, in 

absence of an "impasse," the provisions of the expired 

contract may not be unilaterally changed by the employer. 

The decision of the District Court is affirmed. 
We concur: 

Chief Justice 
Mr. Chief Justice Frank I. Haswell, dissenting: 

I respectfully dissent. 

Here the orders of the Board of Personnel Appeals 

provided in substance (1) that the Forsyth School. District 

committed an unfair labor practice when it declined to pay an 

increased wage scale under an expired collective bargainjng 

agreement and (2) to "cease and desist" from denying automatic step wage increments under an expired collective bargaining agreement. The majority have denied judicial review of 

the order on the basis of mootness because a new collective 

bargaining agreement has been negotiated. 

Mootness is a matter of judicial policy, not constitutional law. See RLR v. State (Alaska 1971), 487 P.2d 27, 45. 

This case falls squarely within those cases in which the 

United States Supreme Court has granted review under the 

principle that they tend to be "capable of repetition, yet 

evading review." Roe v. Wade (19731, 410 U.S. 113, 125, 93 

S.Ct. 705, 713, 35 L.Ed.2d 147, 1.61, and its progeny. The 

question of whether a Montana school district must pay increased wage increments under an expired wage contract pending negot.iation a~d settlement of a new contract will recur 

time and again in school districts throughout Montana until 

it is authoritatjvely and finally answered. by this Court. 

The majority have denied this Court review of this question 

on the merits. 

Two cases have particular application to the case at 

bar. In City of Albuquerque v. Campos (N.M. 1974), 525 P.2d 

848, 851, the New Mexico Supreme Court held that settlement 

of a city labor dispute did not render questions moot that 

were of great public importance and likely to recur. Another 

analogous case is Bd. of Ed. of Danville Etc. v. Danville Ed. 
Ass'n (Il.1.App. 1978), 376 N.E.2d 430. There the Illinois 

appellate court found a education association's appeal from a 

judgment granting a school board's request to enjoin association members from striking and picketing would not be dismissed as moot on the ground that parties had executed a new 

contract and settled their differences, since the question 

involved overriding public importance. 

I would review this question on the merits and. provide 

a final and authoritative answer.