                                       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, 1 9 8 4
                                              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 J u s t i c e
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 automat-
ic step wage increments under an expired collective bargain-
ing 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 constitu-
tional 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 ( 1 9 7 3 1 ,   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 in-
creased wage increments under an expired wage contract pend-
ing negot.iation a ~ dsettlement 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. 1 9 7 8 ) ,   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 associa-
tion members from striking and picketing would not be dis-
missed 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.
