Opinion
OP 24-0309
05-29-2024
JENNIFER L. TRIPLETT, Petitioner, v. CASCADE COUNTY CLERK OF DISTRICT COURT, Respondent.
ORDER
Jennifer Triplet! seeks a writ of mandamus directing the Cascade County Clerk of District Court to reinstate in the records of the Eighth Judicial District the case information for that Court's Cause No. BDC-10-100(a), State of Montana v. Wesley James Capps. Triplett, the victim of Capps's adjudicated felony negligent vehicular assault, alleges that the District Court unlawfully ordered expungement of the conviction and records in the case, despite the fact that it was a felony conviction not eligible for expungement under Montana law. Triplett points out that the 2011 Judgment, a copy of which is included with her Petition, ordered Capps to pay restitution in the amount of $35,588.00, directing him to make monthly restitution payments until paid in full, "even after incarceration or supervision has, ended." Triplett claims that Capps has not paid his restitution obligation and that she no longer has the ability to seek its enforcement. Triplett argues that the Clerk of Court has a clear legal duty to maintain the records of the court and that she has no speedy and adequate remedy in the ordinary course of law to secure reinstatement of the judgment against Capps.
Rule 14(2) of the Montana Rules of Appellate Procedure allows this Court to entertain an original proceeding for mandate, among other writs. The Rule provides that proceedings "shall be commenced and conducted in the manner prescribed by the applicable sections of the Montana Code Annotated for the conduct of such or analogous proceedings and by these rules." Proceedings for a writ of mandate, which also allow such a writ to be issued by this Court, are governed by Title 27, ch. 26, of the Montana Code Annotated. Having reviewed the Petition and attachments, the Court determines that Petitioner has not complied with the applicable statutory requirements for the application, which call for an affidavit. Section 27-26-201, MCA.
IT IS THEREFORE ORDERED that the Petition is DISMISSED without prejudice to its resubmission in the form prescribed by law.
The Clerk is directed to provide notice of this Order to counsel for the Petitioner and to all parties upon whom the Petition was served.