Roby Bowe has moved to dismiss Appellant Agustin Ramon's
appeal from an Order Denying Application for Temporary
Restraining Order and Preliminary Injunction issued by the
Nineteenth Judicial District Court, Lincoln County. Bowe
argues first that the underlying case has been resolved and
thus this matter is moot. Secondly, he argues that he is no
longer Sheriff of Lincoln County and thus any order enjoining
him from acting in that capacity would be without purpose.
Ramon has objected to the motion to dismiss.
filed an Application for Temporary Restraining Order,
Preliminary Injunction, and Order to Show Cause in the
District Court's Cause No. DV-18-218, seeking to enjoin
Bowe from holding him subject to an immigration detainer when
he would otherwise be released on bail. Ramon argued that
Montana law does not provide the authority to hold prisoners
in custody on state criminal charges for a civil federal
immigration detainer after they otherwise would have been
released. Ramon's bond in an underlying felony burglary
charge had been set at $25, 000, but when a bail bondsman
attempted to post bail, he was informed that Ramon was
subject to an immigration detainer and that the staff at the
Lincoln County Detention Center (LCDC) intended to cooperate
with immigration officials regarding the detainer. Thus,
Ramon was not released on bail pending trial only because of
the existence of the civil detainer.
District Court denied Ramon's application on November 16,
2018, and Ramon filed his notice of appeal on November 21,
2018. Bowe filed this motion to dismiss on April 30, 2019. By
this time, Ramon's criminal matter had been resolved, and
he was no longer incarcerated at the LCDC. Bowe therefore
argues that this appeal is moot.
response, Ramon urges this Court to hear his appeal under an
exception to the mootness doctrine, either as a matter
capable of repetition yet evading review, or as a question of
public interest. Common Cause v. Statutory Comm. to
Nominate Candidates for Comm'r of Political
Practices, 263 Mont. 324, 328, 868 P.2d 604, 606 (1994)
("When faced with constitutional questions which are
capable of repetition yet could avoid review, the Court will
consider the merits of the issues raised on appeal.");
Gateway Opencut Mining Action Grp. v. Bd. of County
Comm'rs, 2011 MT 198, ¶ 14, 361 Mont. 398, 260
P.3d 133 (citing Morawicz v. Hynes, 929 N.E.2d 544,
549 (111. App. 1st Dist. 2010)) (The public interest
exception to the mootness doctrine "applies where the
case presents a question of public importance that will
likely recur and whose answer will guide public officers in
the performance of their duties ...."). As evidence that
this is a matter capable of repetition yet evading review, as
well as a question of public interest, Ramon further draws
this Court's attention to Valerio-Gonzales v.
Jarrett, 2017 Mont. LEXIS 764, 390 Mont. 427, 410 P.3d
177, which presented a similar legal issue through a petition
for writ of habeas corpus that this Court dismissed because
the petitioner had been released from the Gallatin County
Detention Center prior to our consideration of the petition.
noted above, Ramon has been released from LCDC, and thus
there is nothing to enjoin. We decline to dismiss the appeal
at this juncture, however, in favor of allowing the parties
to brief the merits of Ramon's arguments, including
whether we should determine this case under an exception to
the mootness doctrine.
Bowe's second argument, M. R. App. P. 25(3) provides:
When a public officer is a party to an appeal or other
proceeding in the supreme court in an official capacity and
during its pendency . . . ceases to hold office, the action
does not abate and the public officer's successor is
automatically substituted as a party. Proceedings following
the substitution shall be in the name of the substituted
party, but any misnomer not affecting the substantial rights
of the parties shall be disregarded. An order of substitution
may be entered at any time ....
this Rule, this Court may substitute Bowe's successor
without adverse effect on the ongoing litigation.
IT IS ORDERED that the motion to dismiss this appeal is
DENIED. As per this Court's March 26, 2019 Order,
Appellant shall have 45 days from the date of this Order to
file and serve his opening brief.
FURTHER ORDERED that Darren Short, Sheriff of Lincoln County
and Administrator of the Lincoln County Detention Center, is