                              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:

  7 4 * & & - 4
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             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-
l e v i e d a g a i n s t t h e d e f e n d a n t c a n be d e p o s i t e d t o t h e

t r e a s u r y b e f o r e t h e d e f e n d a n t l e a r n s of t h e a d v e r s e r u l i n g .

T h a t i s s t r a n g e and i n e q u i t a b l e law.        It's potential for

harm i s o b v i o u s .

        Nor do I b e l i e v e t h a t t h i s C o u r t o r any c o u r t o f

proper j u r i s d i c t i o n ,   i s p o w e r l e s s t o o r d e r t h e r e t u r n of

t h e money.        The f a c t i s , t h e S t a t e , t h r o u g h i t s a g e n t s ,

( h e r e , t h e D i s t r i c t C o u r t and J u s t i c e C o u r t ) a c t e d i m p r o p e r l y .

Does t h e m a j o r i t y o p i n i o n mean t h a t t h e s e c o u r t s c a n n o t undo

what t h e y have done?              I f i t d o e s mean t h i s , c o u r t s a r e power-

l e s s t o r e c t i f y wrongs of t h e i r own making--again,                      another

strange legal doctrine.

        Once t h e c o n s t i t u t i o n a l q u e s t i o n was s u b m i t t e d t o t h e

D i s t r i c t C o u r t and d e c i d e d , t h a t c o u r t h a s no r i g h t t o

d i s m i s s t h e a p p e a l and i n e f f e c t l e t t h e j u s t i c e c o u r t judgment

become o p e r a t i v e .      R a t h e r , once t h e D i s t r i c t C o u r t r u l e d

a g a i n s t d e f e n d a n t , he s h o u l d have s e t t h e c a s e f o r j u r y t r i a l

on t h e m e r i t s , o r determined i f d e f e n d a n t would waive a

j u r y t r i a l and t r y t h e c a s e t o t h e judge on t h e m e r i t s .                 But,

t h e D i s t r i c t Court d i d n e i t h e r .

        I t f o l l o w s t h a t i f t h e D i s t r i c t C o u r t had no r i g h t t o

d i s m i s s t h e a p p e a l , t h e J u s t i c e C o u r t had no r i g h t t o a p p l y

t h e money t o t h e payment of t h e f i n e .                  Both c o u r t a c t i o n s

were illegal.            T h i s i l l e g a l a c t i o n i s compounded by t h e

f a i l u r e of t h e D i s t r i c t Court t o g i v e n o t i c e t o defense

c o u n s e l of i t s r u l i n g on t h e c o n s t i t u t i o n a l q u e s t i o n and o f

i t s d i s m i s s a l of t h e a p p e a l .     There i s no q u e s t i o n h e r e t h a t

it was t h e D i s t r i c t C o u r t , by i t s f a i l u r e t o n o t i f y d e f e n d a n t

of t h e d e c i s i o n and d i s m i s s a l , d e p r i v e d d e f e n d a n t of h e r

a b i l i t y t o protect herself.               To t h i s problem, t h e m a j o r i t y

s i m p l y d e c i d e s t h e case i s moot b e c a u s e t h e f i n e h a s made i t s
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 inter-
ested 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
