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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