                                          No. 01-856

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 310N


ALLISON CHAPMAN,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA, CHOUTEAU COUNTY
SHERIFF'S DEPARTMENT, CHOUTEAU COUNTY
JUSTICE OF THE PEACE HELEN THORNTON,
CHOUTEAU COUNTY JUSTICE OF THE PEACE
SUSAN SPENCER,

              Defendants and Respondents.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade,
                     The Honorable Thomas M. McKittrick, Judge presiding.

                     District Court of the Twelfth Judicial District,
                     In and for the County of Chouteau,
                     The Honorable David Cybulski, Judge presiding.

COUNSEL OF RECORD:

              For Appellant:

                     Allison Chapman (pro se), Geraldine, Montana

              For Respondents:

                     Hon. Mike McGrath, Attorney General; Pamela D. Bucy,
                     Assistant Attorney General, Helena, Montana

                     Allin H. Cheetham, Chouteau County Attorney, Fort Benton, Montana


                                              Submitted on Briefs: August 29, 2002
                                                         Decided: December 13, 2002
Filed:

                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1     Pursuant to Section I, Paragraph 3(c), of the Montana Supreme

Court 1996 Internal Operating Rules, the following decision shall

not be cited as precedent but shall be filed as a public document

with the Clerk of the Supreme Court and shall be reported by case

title,      Supreme   Court   cause   number,   and    result,   to    the    State

Reporter Publishing Company and to West Group in the quarterly

table of noncitable cases issued by this Court.

¶2     The Appellant, Allison Chapman, filed a complaint against the

State of Montana, the Chouteau County Sheriff’s Department, and two

Chouteau County Justices of the Peace on February 15, 2001, in the

Eighth Judicial District Court for Cascade County.                    She alleged

that        the   Defendants’     practice      of     imposing        bail    was

unconstitutional.        The State filed a motion to change venue and

venue was changed to the Twelfth Judicial District Court for

Chouteau County on March 26, 2001.              On November 13, 2001, the

Twelfth Judicial District Court dismissed Chapman’s complaint and

she appeals both the change of venue and the dismissal of her

claim.      We affirm the judgments of both District Courts.
¶3     Chapman raises two issues on appeal.           We restate the issues as

follows:

¶4     1.    Did the Eighth Judicial District Court err when it ordered

that venue be changed to the Twelfth Judicial District Court for

Chouteau County?

¶5     2.     Did the Twelfth Judicial District Court err when it

dismissed Chapman’s complaint based on lack of standing?




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¶6   On May 22, 2000, Allison Chapman was arrested in Chouteau

County by officer Vern Burdick of the Chouteau County Sheriff’s

Department for failing to provide proof of liability insurance,

disorderly conduct and careless driving.           No bail was imposed by

officer   Burdick    during   Chapman’s    two    hour   detention    at   the

sheriff’s office. Neither did Justice of the Peace Helen Thornton

impose bail and Chapman was released on her own recognizance.

¶7   On   February   15,   2001,   Chapman   filed   a    complaint   in   the

District Court for the Eighth Judicial District in Cascade County

in which she named the State of Montana, the Chouteau County

Sheriff’s Department, Chouteau County Justice of the Peace Susan

Spencer, and Chouteau County Justice of the Peace Helen Thornton as

defendants.    The    complaint    asked   that   the    court   declare   the

Defendants’ practice of demanding bail for non-jailable offenses

pursuant to § 46-9-302, MCA, was unconstitutional and that § 46-9-

302, MCA, violated her constitutional right to due process of law.

 Although neither the JP court nor the Sheriff’s Department imposed

bail on Chapman, she argued that the events of May 22, 2000, were a

“very close call” and required that the court declare that the

Defendants’ practice of bail imposition in her case, and similar

cases, would be unconstitutional.
¶8   The Chouteau County Sheriff’s Department, Justice of the Peace

Thornton and Justice of the Peace Spencer were served with the

complaint on February 21, 2001.          Chouteau County Attorney, Allin

Cheetham, filed a motion to dismiss on behalf of the defendants.

The motion was not supported with a brief and was denied without


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consideration of the merits of Chapman’s allegations.   Cheetham did

not file a motion to change venue.

¶9   The State of Montana was served with Chapman’s complaint

through the Attorney General’s office on March 6, 2001.   The State

filed timely motions to change venue and to




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dismiss Chapman’s complaint on March 16, 2001.                  Both motions were

supported by briefs.         Judge McKittrick, of the Eighth Judicial

District Court, granted the State’s motion for a change of venue

and ordered that venue be changed from the Eighth Judicial District

Court to the Twelfth Judicial District Court.

¶10   Following the change of venue, Chapman filed a motion to

substitute    Twelfth      Judicial    District      Court     Judge    John   Warner

because of alleged bias.            Judge David Cybulski, judge for the

Fifteenth Judicial District Court, accepted jurisdiction in place

of Judge Warner.      On November 13, 2001, Judge Cybulski granted the

State’s motion to dismiss for lack of standing and Chapman’s

failure to demonstrate how § 46-9-302, MCA, deprived any person of

liberty without due process.
                              STANDARD OF REVIEW

¶11   The standard of review with regard to a district court’s

decision     to   change    venue     is       whether   the    district       court’s

conclusions of law are correct.            Wentz v. Montana Power Co. (1996),

280 Mont. 14, 17, 928 P.2d 237, 238.              This Court reviews a district

court’s    decision   regarding       standing      to   determine      whether   the

district court’s conclusions of law are correct.                       See Ludwig v.

Spoklie (1996), 280 Mont. 315, 318, 930 P.2d 56, 58.

                                    DISCUSSION

                                      ISSUE 1

¶12   Did the Eighth Judicial District Court err when it ordered

that venue be changed to the Twelfth Judicial District Court for

Chouteau County?


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¶13   Chapman maintains that the Eighth Judicial District Court was

precluded from considering the State’s motion to change venue to

the Twelfth Judicial District Court, because the State waived its

right to change venue when it failed to request a change of venue

in its first appearance.

¶14   A defendant is permitted to move for a change in venue when

the plaintiff brings his or her action in an improper county.

Section 25-2-114, MCA.   M.R.Civ.P, Rule 12(b)(ii), provides that:

“If the county designated in the complaint is not the proper county

for trial of the action, the defendant must at the time of the

defendant’s first appearance request by motion that the trial be

had in the proper county.”   The proper venue for a suit brought by

a Montana resident against the State is the county where the

plaintiff resides, the county where the claim arose, or Lewis and

Clark County.   Section 25-2-126(1), MCA.   The proper venue for an

action against a political subdivision is the county in which the

claim arose or any county where the political subdivision is

located.   Section 25-2-126(2), MCA. When a plaintiff brings an

action against multiple defendants, a county that is the proper

venue for one defendant is proper for all of the defendants.

Section 25-2-117, MCA.     However, if an action against multiple

defendants is not brought in the proper county, any of the named

defendants may request that the court move the action to the proper

venue.   Section 25-2-117, MCA.
¶15   The Chouteau County Sheriff’s Department, Justice of the Peace

Thornton, and Justice of the Peace Spencer were all served by


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Chapman on February 21, 2001, and appeared before the Eighth

Judicial District Court on February 26, 2001, without raising an

objection to venue.    The State of Montana was not served until

March 6, 2001.    It made a timely first appearance on March 16,

2001, by filing a motion to dismiss and a motion to change venue,

which were both supported by briefs.     In support of its motion to

change venue, the State correctly identified the proper venue for

Chapman’s action against the State to be the county where the claim

arose, Chouteau County, the county where Chapman resided, Chouteau

County, or Lewis and Clark County.      It further contended that the

proper venue for the remaining three defendants was the county in

which the claim arose, Chouteau County, or the county where the

political subdivision was located, Chouteau County.        The State

maintained that under no circumstances was Cascade County the

proper place for trial and, therefore, a change of venue to

Chouteau County was necessary.
¶16   The State of Montana complied with M.R.Civ.P, Rule 12(b)(ii),

when it requested a change of venue to the proper county in its

first appearance before the court on March 16, 2001.    Furthermore,

the State was permitted to move for a change of venue for the other

defendants pursuant to § 25-2-117, MCA.       We conclude the Eighth

Judicial District Court was correct when it granted the State’s

motion for a change of venue and transferred Chapman’s claim to the

Twelfth Judicial District Court in Chouteau County.

                              ISSUE 2

¶17   Did the Twelfth Judicial District Court err when it dismissed

Chapman’s complaint based on lack of standing?

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¶18    Chapman contends that she has standing to sue because she was

arrested, held for two hours for offenses that are not normally

jailable, and threatened with the imposition of bail.              Chapman

asserts she has standing to sue despite the fact that no bail was

imposed in her case.      She contends that because the State is

capable of imposing illegal bail in the future, her claim is not

moot pursuant to Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct 705, 35

L.Ed.2d 147.

¶19    In Roe v. Wade, 410 U.S. at 124, 93 S.Ct at 712, the United

States Supreme Court held that there was no doubt a case and

controversy existed and Roe had standing to sue when she originally

challenged Texas’ abortion laws.        However, due to the nature of a

pregnancy and its gestation period, the injury Roe suffered when

she brought her original suit, the inability to obtain a safe and

legal abortion, no longer existed.        Roe, 410 U.S. at 125, 93 S.Ct

at 713. The Court found that Roe was capable of becoming pregnant

again and that Texas law would prevent her from legally and safely

obtaining an abortion in the future.      Roe, 410 U.S. at 125, 93 S.Ct

at    713.   Therefore,   the   Court    concluded   that   her   case   or

controversy was capable of repetition, yet evading review, and was

not moot even though she was not pregnant at the time.            Roe, 410

U.S. at 125, 93 S.Ct at 713.
¶20    Roe v. Wade is not applicable to the present case.          Neither

the Sheriff’s Department nor the Justice of the Peace required

Chapman to post bail.     Unlike Roe, who was injured by the Texas

law, Chapman has suffered no injury.      It is undisputed that she was

released on her own recognizance on May 22, 2001, and no bail was

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imposed.     Therefore, we conclude that Chapman’s reliance upon Roe

v.    Wade   to    establish     standing      in    this    case   is   misplaced.

Furthermore, Chapman’s argument is based on mootness, rather than

standing.      The District Court concluded she lacked standing; it did

not conclude that her claim was moot.               Consequently, based upon the

issues   and      arguments   raised    on    appeal,    we   conclude    that   the

District Court did not err when it held that Chapman lacked

standing.

¶21   We affirm both the order to change venue issued by the Eighth

Judicial     District    Court    and    the    order       dismissing   Chapman’s

complaint issued by the Twelfth Judicial District Court.

                                                      /S/ TERRY N. TRIEWEILER

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM RICE




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Justice James C. Nelson dissents.

¶22    I dissent from the Court's decision on Issue 1.                     I disagree that the

State's motion to change venue was timely filed and I would reverse on the venue issue and

remand to the Eighth Judicial District Court without reaching the standing issue, Issue 2.

¶23    The change of venue motion is improperly decided based on the record here. After

the three county defendants had been served, but prior to the State being served, the County

Attorney appeared on behalf of all four defendants by filing a motion to dismiss. Two

grounds for dismissal were raised: (a) failure to state a claim and (b) immunity. Clearly, in

failing to seek a change of venue, this appearance waived improper venue as to the county

defendants under Rule 12(b)(ii), M.R.Civ.P.

¶24    This appearance also waived the venue objection for the State,

even though it had not been served, inasmuch as a voluntary general

appearance by a defendant is a waiver of the issuance or service of

the summons.       Spencer v. Ukra (1991), 246 Mont. 430, 433, 804 P.2d

380, 382.       There is no dispute that the County Attorney’s motion

was a general appearance.              See Lords v. Newman (1984), 212 Mont.
359, 361, 688 P.2d 290, 292; Spencer, 246 Mont. at 434-35, 804 P.2d

at 383-84.        Under § 7-4-2716(3), MCA, the County Attorney must

"defend all suits brought against the state." Therefore, the County

Attorney was properly representing the State at the time he made

his motion and general appearance and regardless of whether the

Attorney General would have preferred, after the fact, that not be

the case.




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¶25   We have wrongly decided the venue issue.   Chapman is entitled

to have his standing motion ruled upon by the proper trial court.

¶26   I dissent.

                                          /S/ JAMES C. NELSON

Justices Jim Regnier and W. William Leaphart join in the foregoing
dissent.


                                     /S/ JIM REGNIER
                                     /S/ W. WILLIAM LEAPHART




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