No. 81-402
IN THE SUPRElvLE COURT OF THE STATE OF MONTANA
1981
DAVE STEADMAN and RUDY BOEHM,
Petitioners and Appellants,
DAVID L. HALLAND, Election Administrator,
County of Yellowstone, State of Montana,
Respondents and Respondents,
and
RICHARD SHAFFER,
Intervenor.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Joseph B.Gary, Judge presiding.
Counsel of Record:
For Appellants:
David Steadman, Pro Se, Billlings, Montana
Rudy Boehm, Pro Se, Billings, Montana
For Respondents:
Harold Hanser, County Attorney, Billings, Montana
Mases Law Firm, Billings, Montana
Submitted on Briefs: November 25, 1981
Decided: February 22, 1982
Filed: FEB 2 2 198z
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Petitioners, Steadman and Boehm, appeal from a denial
of their petition for writ of mandamus in the Thirteenth
Judicial District Court, Yellowstone County, wherein the
District Court upheld respondent Halland in rejecting peti-
tioners' recall petition. We affirm the District Court.
The following issues are presented to this Court for
review:
(1) Did the District Court err in denying petitioners'
petition for writ of mandamus?
SUB-ISSUES:
A. Did the recall petition alleging official misconduct
meet statutory requirements as to form?
B. Did the respondent properly reject the recall
petition on the grounds of double jeopardy?
C. Is Mandamus the proper remedy for petitioners to
seek in challenging respondent's rejection of
their recall petition?
(2) Did the District Court err in allowing Richard
Shaffer to intervene?
This appeal arises from an attempt by petitioners to
recall Yellowstone County Sheriff Richard Shaffer in accordance
with the provisions of the Montana Recall Act section 2-16-
601, - 5..
et MCA. Petitioners allege no injury to themselves
but bring the action as residents and taxpayers of Yellowstone
County.
Petitioners allege the following: On November 7,
1980, Shaffer was in Big Timber, which is in Sweet Grass
County, driving an official Yellowstone County vehicle; while
there, Shaffer and a female companion were ordered off a
farmer's field and shortly afterward they passed the farmer's
vehicle, fishtailing and spraying gravel, with the Yellowstone
County vehicle; a short time later, when the farmer approached
Shaffer in a Big Timber Bar and questioned Shaffer's driving,
Shaffer and the woman left the bar; Shaffer returned alone,
pulled his badge and warned the farmer to be especially
careful in Yellowstone County. The farmer lodged a complaint
against Shaffer with the Sweet Grass County Sheriff's office,
as a result of which Shaffer was charged with intimidation
(a felony) and reckless driving and disorderly conduct (both
misdemeanors). The intimidation charge was subsequently
dismissed, and Shaffer forfeited a bond as to the misdemeanor
charges. He was not tried for or convicted of any of the
offenses.
On January 26, 1981, petitioners presented the Yellowstone
County Election Administrator (Halland) with a petition for
Shaffer's recall for Halland to check against statutory
requirements pursuant to section 2-16-616, 617, MCA. The
petition was rejected by Halland on January 30, 1981. An
amended petition, submitted February 2, 1981, was also
rejected by Halland, on February 4, 1981. Halland's reason
for rejecting the petitions was that the Yellowstone County
Attorney, advised by the State Attorney General's Office,
believed that to base the recall petition upon official
misconduct, after Shaffer had been charged with misdemeanor
offenses because of that conduct, would place Shaffer in
double jeopardy. Halland advised petitioners that they
were free to seek a writ of mandamus in the District Court
compelling Halland to file the recall petition if the ~istrict
Court determined the petition to be sufficient.
On February 17, 1981, petitioners applied to the District
Court for a writ of mandate to compel Halland to accept the
recall petition. They alleged that Halland's rejection of
their petition was based upon his consideration of substance
and legality rather than form and was improper under section
2-16-617, MCA, which limits the function of the Election
Administrator to a determination whether the petition's form
satisfies statutory requirements. Petitioners claimed that
the petition met statutory requirements as to form, and
Halland's rejection of it amounted to the refusal of "an
absolute, clear and legal duty."
On February 19, 1981, Judge Speare ordered Halland to
"approve the Petition for recall of Yellowstone County
Sheriff Richard Shaffer . . . or, that in default thereof,
he show cause . . . why he has not done so by the return of
said Writ." That same day, the judges of the Thirteenth
Judicial District disqualified themselves and called in
Eighteenth Judicial District Judge Gary, who accepted jurisdiction
on February 23, 1981. The date for the show cause hearing
was continued to March 16, 1981.
On March 16, 1981, over petitioners' objections, Richard
Shaffer was permitted to intervene in the action and file
his answer, wherein he argued that the recall petition was
deficient under the provisions of the Montana Recall Act and
moved for its dismissal. The show cause hearing was held
March 16, 1981; petitioners appeared pro- without counsel
- se
and declined to offer testimony, preferring to stand upon
their petition. Neither Shaffer, nor Halland, presented
testimony. Memoranda were subsequently submitted by all
parties, and on July 24, 1981, the District Court entered
its findings of fact, conclusions of law, and order denying
petitioners' petition for writ of mandamus and dismissing
the action. Petitioners appeal.
Petitioners argue that the District Court erred in
denying their petition for writ of mandamus and raise a
number of sub-issues, the resolution of one of which is
determinative of the larger issue.
A. The first and most important, indeed the determina-
tive sub-issue in this case, is whether the recall petitions
did in fact satisfy the statutory requirements as to form.
Section 2-16-616, MCA, requires that the recall petition
contain (1) a warning against the misdemeanor offense of
signing more than once, or signing at all if not qualified;
and (2) the petition itself, which addresses the appropriate
filing officer, states the name and position of the official
against whom it is directed, sets out "a general statement
- - reasons for recall - - - - - words," and
of the in not more than 200
establishes the nature of a signer's certification; and (3)
numbered lines for signature following the heading.
"Each separate sheet - - petition shall contain the
of the
heading and reasons - - proposed recall - described
for the as
above." Section 2-16-618, MCA, provides: "The forms prescribed
in this part are not mandatory, and if substantially followed,
the petition shall be sufficient, notwithstanding clerical
and merely technical errors." Section 2-16-617(3), MCA,
provides: "Before a petition may be circulated for signatures,
a sample circulation sheet must be submitted to the [filing]
officer ... [who] shall review the petition for sufficiency
- - - and approve or reject the form of the petition,
as to form
stating his reasons therefor, within 1 week of receiving the
sheet."
The recall petition submitted to Halland by petitioners
contained the following heading:
"WARNING
"(wording identical to that required by stat-
ute; no problem with acceptability.)
"RECALL PETITION
"To the County Election Administrator: We,
the undersigned qualified electors of the
County of Yellowstone respectfully petition
that an election be held as provided by law
on the question of whether Richard E. Shaffer,
holding the office of Yellowstone County
Sheriff, should be recalled - - follow-
for the
ing reason: sheriff Shaffer acted - -
in a
manner to brina discredit to himself and
the Department&by OFFICIALMISCONDUCT stem-
---
ming from an incident - Sweet Grass County
in
7, 1980.
- November - - (Underscoring added.)
on
.
". . (Certification paragraph is accept-
able; there is no dispute in that regard.)
.
". . (Signature heading and lines are not
challenged. ) "
The proposed recall petition was accompanied by a notarized
statement of "Reasons for Desired Recall," signed by peti-
tioners.
The District Court's findings and conclusions were
substantially that:
(1) The recall petition was defective in that it
"stated mere conclusions of alleged misconduct," and it
failed to allege facts from which the Election Administrator
could determine whether official misconduct had occurred and
from which Shaffer could meet those allegations upon a
recall ballot.
(2) Even assuming the statement accompanying the
petition and the newspaper articles accurately set forth the
sheriff's conduct, that is insufficient to meet the standards
of official misconduct as set forth in the Montana Criminal
Codes.
In its accompanying memorandum, the District Court
stated: "In the Petition for Writ of Mandamus, the defects
in the petition for recall are not corrected so therefore
this opinion could stop at this point and dismiss the Petition
for Writ of Mandamus, and perhaps I should." (The opinion
went on to address other issues.)
Petitioners now argue that the District Court improperly
considered reasons for rejecting the recall petition other
than the reason set forth by Halland (double jeopardy).
Petitioners also maintain that both Halland and the District
Court improperly assessed the recall petition as to legal or
substantive sufficiency rather than merely sufficiency of
form as required by section 2-16-617(3), MCA.
We disagree. The District Court properly considered
the sufficiency of the form of the recall petition. Section
2-16-617(3), MCA, neither limits the District Court's considera-
tion of the sufficiency of the petition to defects found by
the filing officer, nor prohibits another party from inter-
vening with its own objections to the form of the recall
petition. Section 2-16-617(3), MCA, merely states that the
filing officer must state his reasons for rejecting the
form of a petition within 1 week. That was done.
This Court has held many times that when there is no
testimony and this Court is limited to the record, it is
free to make its own examination of the entire case and to
make a determination in accordance with its findings. See
In re Estate of Jensen (1969), 152 Mont. 495, 500, 452 P.2d
418, 421; Kostbade v. Metier (1967), 150 Mont. 139, 141, 432
P.2d 382, 384. We have also held that if the result reached
by the trial court be correct, it will be upheld regardless
of the reasons given for the conclusion. Spaeth v. Emmett
(1963), 142 Mont. 231, 235, 383 P.2d 812, 814-815; Johnstone
v. Sanborn (1960), 138 Mont. 467, 471, 358 P.2d 399, 401.
The logic of this policy is peculiarly applicable to the
case at bar, because the initial review of recall petitions
is intended to save the public and government officials
the time and expense of circulating and responding to a
petition which is fatally defective. The Legislative
Council's Analysis of Amendments to Initiative 73 (The
Montana Recall and Advisory Act, enacted by Montana voters
November 2, 1976), which was incorporated into the minutes
of the House Judiciary Committee on February 23, 1977,
states at page A-2:
"New language is included in subsection (3)
to provide that the petition form must be
approved before it is circulated. A provi-
sion of this nature saves trouble for both
petitioners and filing officers when a peti-
tion is turned in. If the form is approved
in advance, petitioners will not be put in
a position of gathering signatures on an
improper form and then having their peti-
tion disqualified."
It would be both wasteful and useless for the District Court
to return an obviously unacceptable recall petition to the
filing officer for reconsideration just because his reasons
for rejecting it may have been improper. Here, the record
revealed to the District Court, as it does to this Court,
that the recall petition submitted to Halland was fatally
defective, and regardless of his reasons for rejecting it,
Halland's decision to do so was correct.
A review of the relevant statutes and a reference to
the Attorney General's opinion relied upon by petitioners
makes it clear to this Court that the defects in the petition
found by Halland and the District Court are defects in
form. Section 2-16-616(1), MCA, "Form of recall petition,"
requires that each page of the petition be headed by, among
other things, a general statement of reasons for recall, of
no more than 200 words. Section 2-16-617(4) requires that
when a recall petition is submitted to the filing officer,
it "must be accompanied by a written statement containing
the reasons for the desired recall - stated - - petition."
as on the
The Attorney General has stated:
"The section [2-16-617(4)] requires that both
the petition submitted for approval and the
statement attached to the petition explain
the basis for the recall. As the grounds for
the desired recall specifically constitute
part of the form of the petition, the Secre-
tary of State is empowered to reject the peti-
tion unless it meets all of the statutory re-
quirements." 38 Op. Att. Gen. 41 (1979).
We agree that the statement of grounds for recall to be
included in the petition is "part of the form of the peti-
tion" and find that the filing officer not only is "empowered
to" but is required to reject the petition when it does not
comply with statutory requirements. Clearly Halland and the
District Court on review were obliged to consider whether
the statement of reasons for recall met statutory require-
ments.
The District Court correctly considered only the signature
page of the petition, ignoring the attached statement of
"Reasons for Desired Recall," which was obviously appended
only in compliance with section 2-16-617(4), MCA. Section
2-16-616, MCA, limits the statement of reasons for recall in
the petition to 200 words and requires that it be contained
on "each separate sheet of the recall petition." Here, the
accompanying statement is on separate pages and is well over
400 words long. This is not the substantial compliance with
statutory requirements, which would render the statement of
reasons acceptable. An official whose recall will be determined
by election is allowed only 200 words on the ballot to give
reasons why he should not be recalled. Petitioners should
have briefly stated the alleged acts of misconduct in the
body of the recall petition. The sufficiency of form of the
recall petition, then, must be determined without recourse
to the accompanying statement of "Reasons for Desired Recall."
Section 2-16-616(1), MCA, requires that the recall
petition contain "a general statement of the reasons for
recall. . ." Petitioners' recall petition states only that
"Sheriff Shaffer acted in a manner to bring discredit to
himself and the Department by OFFICIAL MISCONDUCT stemming
from an incident in Sweet Grass County on November 7, 1980."
Such a statement is deficient because it does not acquaint
the public, whose signatures are requested, with the alleged
acts constituting misconduct, nor does it permit Sheriff
Shaffer to respond and defend himself adequately against the
allegation of misconduct in the event that an election is
required. The "general statement" required by section 2-16-
616(1), MCA, demands more specificity than this. We note
with approval the standard set forth in Bocek v. Bayley
(1973), 81 Wash. 2d 831, 505 P.2d 814, 817:
". ..[Rlecall charges are sufficiently speci-
fic if they are definite enough to allow the
charged official to meet them before the tri-
bunal of the people. "
We point out also that page C-3 of the original text of
Initiative 73, 1976, contains an explanation of the require-
ment that a statement of reasons for recall be included on
each circulation sheet:
"Such a statement is solely for information
of the electors and set forth any reason
causing the dissatisfaction with the public
official and may be political rather than
legal in nature."
clearly a statement of reasons must serve both purposes.
Otherwise discontented constituents could initiate a circula-
tion petition by alleging misbehavior in terms so general
that the object of the recall effort would be incapable of
defending himself, and some electors would sign the recall
petition with no idea of what words or acts of the official
might have precipitated the recall effort. Therefore, we
hold that it is not enough for a recall petition to allege
one of the grounds for recall as set forth in section 2-16-
603(3), MCA. The recall petition must also include a clear
statement of the alleged acts constituting the grounds for
recall. The disputed petition in the case at bar contained
no such statement. Consequently, it was defective in form
and was properly rejected.
A discussion of the remaining issues is not appropriate
here. The above determination is dispositive of this action.
We are aware that there remain ambiguous provisions in the
Montana Recall Act and that legitimate questions may be
raised regarding double jeopardy and intervention in refer-
ence to those provisions. But this is not the case for
considering such questions. The recall petition was fatally
defective and the petition for writ of mandamus was properly
denied.
Petitioners appeared - -
pro se, and we are traditionally
inclined to treat parties more gently who appear without
counsel. We must note, however, the time and expense to all
parties, and the stress placed upon the court system, by
this appeal without the help of competent counsel. Quali-
fied counsel would have realized that the recall petition
was fatally defective and that the half-dozen extraneous
issues raised by petitioners were not determinative. his
would have saved considerable time and expense by eliminating
an unnecessary appeal.
A£ firmed.