No. 82-450
IN THE SUPREPG COURT OF THE STATE OF MONTANA
1983
DAVID E. FOSTER,
Plaintiff and Appellant,
HELEN KOVICB, Election Administrator,
County of Lewis & Clark, State of
Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Mark P. Sullivan, Judge presising.
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F . Sheehy, Jr. and Ross
Cannon argued, Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning argued, Asst. Atty. General, Helena
Mike McGrath, County Attorney, Helena, Montana
Submitted: June 3, 1983
Decided: December 12, 1983
Filed:
D t G id 1983
Clerk
Mr. Justj.ce Daniel 3 . Shea delivered the Opinion of the
Court.
Plaintiff, David E. Foster, the mayor of East Helena,
appeals from summary judgment entered against him in Lewis
and Clark County District Court. The trial court dissolved
the temporary injunction prohibiting the recall election and
ordered that the election take place. The trial court then
suspended entry of the order pending the outcome of this
appeal.
Plaintiff presents two issues. First, he argues that
the allegations in the recall petition were legally
insufficient to constitute grounds for recall under section
2-1.6-603(3), MCA, of the Montana Recall Act. We agree with
plaintiff that under the Montana Recall Act, the legal
sufficiency of allegations in a recall petition is a judicial
as opposed to a politi.ca1 auestion, and is to be decided by
the District Court. Second, he argues that the Montana
Recall Act, section 2-16-601 et seq., MCA, is
unconstitutional because it delegates legislative power to
the election administrator to determine the sufficiency of
the petition as to form. We reverse the trial court and hold
that the allegations in the recall petition were insufficient
as a matter of law to constitute grounds for recall and
direct the trial court to enter an order enjoining the
election administrator from authorizing the election. We do
not reach the constitutional issue because we find the issue
regarding the petition dispositive.
The recall petition was based on three of the five
alternative grounds for recall of an elected public official
specified in section 2-16-603 (3), MCA, of the Montana Recall
Act. First, it was alleged that the mayor was guilty of
official- misconduct because he demoted the police chief
without cause as required by a city ordinance. Second, the
petition alleged that the mayor violated his oath of office
by failing to follow the prescribed order of business for
four city cou~cil meetings in January and February 1982.
Third, the petition alleged that the mayor was incompetent to
hold office because he failed to conduct an orderly council
meeting on February 4, 1982, and used vulgar language while
conducting that meeting.
The first recall petition was, on the advice of the
county attorney, rejected because it was wrongly addressed
and because the general statement of reasons for recall
exceeded the 200-word limit imposed by section 2-16-616, MCA.
Petitioner revised the general sta-tement as required and
properly addressed the second petition to the Clerk and
Recorder for Lewis and Clark County. The second petition
was, on the advice of the county attorney, accepted as
sufficient to allow a recall election if the requisite number
of signatures were obtained.
Invoking a remedy provided for in the Recall. Act, the
mayor then petitioned the trial court asking that the recall
petition be held invalid. The mayor contended that the
reasons for recall cited bv the petition were not adequately
specific and insufficient to meet any definition of the
grounds for recall specified in section 2-16-603(3), MCA.
The mayor also contended that the Montana Recall Act
unconstitutionally delegates legislative power to the county
election administrator to determine the sufficiency of the
recall petition as to form.
The trial court rejected out of hand the contention
that the Montana Recall Act was an unconstitutional
delegation of power to the election administrator. In
rejecting the claim that the charges in the petition were not
sufficiently specific and definite to allow the mayor to
respond and defend himself before the people, the trial court
relied on authority from the states of Washington and
Michigan. This authority, however, is inapplicable to the
recall provision in this state because the constitutional and
statutory grounds for recall in Michigan and Washington are
substantially dissimilar to the grounds for recall specified
in section 2-16-603 (3) of the Montana Recall Act.
Michigan constitutional and statutory law require only
that the recall petition ". . . state clear1.y . . ." the
reasons for recall. However, determination of the
sufficiency of the grounds stated for recall is left to the
Michigan electorate. It is not a judicial determination as
in Montana. Further, Michigan 1-aw does not limit the grounds
for recall to specific constitutional or statutory provisions
but Montana does. See, section 2-16-603(3) of the Recall
Act. Therefore, the trial court's reliance on the Michigan
cases of Molitor v. Miller (Mich. 19801, 301 N.W.2d 532, and
Amberg v. Walsh (Mich. 1949), 38 N.W.2d 304 was misplaced.
The trial court also improperly relied on the
Washington case of Bocek v. Rayley (1973), 8 1 Wash. 2d 831,
505 P.2d 814. In Washington, an elective public officer may
be recalled for any zcts of malfeasance or misfeasance in
office, or for a violation of the oath of office. Art. 1, §
33, (Amendment 8) Wash. Const.; RCW S 29.82.010. However,
malfeasance or misfeasance is not a ground for recall in
Montana.
In 1979, the Montana Recall Act was amended by removing
malfeasance and misfeasance, and inserting official
misconduct as a ground for recall. We presume that the
legislature , in adopting an amendment to a statut-e intended
,
to make some change in existing 1-aw. Montana Milk Control
Board v. Community Creamery Co. (1961), 139 Mont. 523, 366
P.2d 151. That presumption is especially applicable where,
as here, the amendment materially changes the statutory
provisions. We believe the legislature intended to change
the law regarding grounds for recall by substituting official
misconduct for malfeasance or misfeasance.
It follows that malfeasance and misfeasance cannot be
equated to official misconduct under the Montana Recall Act.
The only similarity between the Washington and Montana recall
provisions is that a public officer may be recalled for
violating an oath of office. But a careful reading of Bocek
indicates that even reliance by the trial court on the
violation of oath of office similarity was misplaced.
Although in Rocek, the recall petition alleged violations of
oath of office, the Washington Supreme Court did not hold
that any of the acts alleged were such a violation. Rather,
the Washington court analyzed the allegations only in light
of misfeasance and malfeasance, grounds that are not a
statutory basis for recall in Montana.
We proceed to a discussion of each charge alleged in
the recall petition. The first charge, one that the mavor
"misconducted himself in office by removing" a police officer
from his position, requires a discussion of the statutory
ground for recall, "official misconduct."
Although not specified in the recall petition, it
appears that the petitioners, in alleging the removal of the
police officer as a ground of recall, intended to charge the
mayor with "official misconduct" as specified in section
2-16-603 (3) of the Recall Act. We determine, however, that
the allegations here cannot fall within the meaning of
"official misconduct" as intended by the legislature, for the
legislature intended "official misconduct" to be defined only
as it is defined in the criminal code under section 45-7-401,
MCA .
Official misconduct is set forth in section 2-16-603(3)
as a ground of recall. This statute provides in pertinent
part:
"Officers subject to recall -- .g rounds for
- - - .-
recall. (1) ~ v e r ~ p e r s oholding a public
n
Efice of the state or any of its
political subdivisions, either by election
or appointment, is subject to recall from
such office.
"(3) Physical or mental lack of fitness,
incompetence, violation of his oath of
office, official misconduct, or conviction
of a felony offense enumerated in Title 45
is the only basis for recall. No person
may be recalled for performing a mandatory
duty of the office he holds or for not
performing any act that, if performed,
would subject him to prosecution for
official misconduct."
The second sentence of subsection 2-16-603 (3), MCA,
expressly states that "[nlo person may be recalled . . . for
not performing any act that, if performed, would subject him
to prosecution for official misconduct." (Emphasis added.)
V e are convinced by
? this statutory language and by the
legislative history of section 2-16-603, MCA, that official
misconduct is to be applied for purposes of recall as it is
defined in the criminal code under section 45-7-401, MCA.
That statute provides in relevant part:
"Officia.1 misconduct. (1) A public
servant commits the offense of official
misconduct when in his official capacity
he commits any of the followi.ng acts:
"la) purposely or negligently fails to
perform any mandatory duty as required by
law or by a court of competent
jurisdiction;
" (bj knowingly performs an act in his
official capacity which he knows is
forbidden by law;
" (c) with the purpose to obtain advantage
for himself or another, performs an act in
excess of his lawful authority;
" ( d ) solicits or knowingly accepts for the
performance of any act a fee or reward
which he knows is not authorized by law;
or
(e) knowingly conducts a meeting of a
"
public agency in violation of 2-3-203."
A publ-ic servant is not guilty of official misconduct
and subject to recall unless he has committed one or more of
the acts specified in section 45-7-401, MCA. As we discuss
below, removal or demotion of a police officer without cause
does not constitute grounds upon which to seek recall of the
mayor.
The petition alleges that the "removal" and "demotion"
of the police officer viol-ated a city ordinance relating to
the powers of the mayor. That ordinance, section 1-6-2,
provides in pertinent part:
"Powers. The Mayor shall have the power:
"B. To suspend and, with the consent of
the council, to remove any nonelective
officer, stating in the suspension or
removal the cause therefor."
Although not necessary to our decision, we note first
the failure of the charge to specify what the mayor had done.
The charge alleges that the mayor removed the police officer
without cause but it does not specify the allegation, that
is, whether the mayor failed to give a reason for the removal
or whether a reason was given but that it was insufficient on
which to base a removal. One facing a recall petition and
possible election is entitled to more precision than given
here.
But more important insofar as a violation of the law is
alleged, we determine that the city ordinance does not apply
to an act of the mayor in demoting a police officer, which is
the case here. The city ordinance requires cause to be
stated only when a nonelective officer is suspended or
removed, but here the police officer was demoted. We
therefore conclude that the mayor did not violate the
ordinance by demoting the police chief and his act could. not
trigger a recall election based on an allegation of "official
The second charge in the petition is that the mayor
violated his oath of office by failing to follow the
prescribed order of business specified in City Ordinance
1-5-3. The oath of office, required of all members of the
1egisla.ture and a.11 executive, ministerial and judicial
officers, reads :
"'I do solemnly swear (or affirm) that I
will support, protect, and defend the
constitution of the United States, and the
constitution of the state of Montana, and
that I will discharge the duties of my
office with fidelity (so help me God). '
No other oath, declaration, or test shall
be required as a qualification for any
office or public trust." Art. 111, § 7,
Mont. Const.; section 2-16-211, MCA.
A failure to follow a prescribed order of business is
hardly a failure to "support, protect, and defend" the United
States and Montana Constitutions. Therefore, the act on the
part of the mayor must, to sufficiently constitute a ground
for recall und-er section 2-16-603(3) of the Recall Act, be a
failure to "discharge the duties of [his] office with
fidelitv." The trial court relied on the Eli-chigan case of
Molitor v. Miller, supra, to hold that a violation of a city
ordinance is a violation of the oath of office. However, as
stated previously, this case has no application to the
Montana Recall Act, as the Michigan Constitution precludes
the judiciary from determining the legal. sufficiency of
allegations in a recall petition. In Michigan, that
determination is left to the electorate.
The petition bases the oath of office violation on City
Ordinance I--5-3, which provides:
"Order of Business: At the hour appointed
for themeeting, the Council shall - be
called - order
to a
the Mayor
- Upon
the appearance of a quorum, the Council
...
shall proceed -
tobus-ness - - following
in the
order:
"A. Reading, amending and a.pproving the
minutes of the previous meeting.
"B. Reports of officers.
"C. Reports of standing committees.
"D. Reports of special committees.
"E. Presentation of petitions and
communications.
"F. New business.
"G. Unfinished business.
"H. Bills.
"All. questions relating to the priority of
business shall be decided without debate."
(Emphasis added.)
Assuming arguendo that a violation of this ordinance
would constitute a ground for recall, the petition fails to
specifically set forth what order of business was followed by
the mayor and how that was in violation of the ordinance.
The allegation is conclusory and indefinite. We recently
held that the allegations in a recall petition must be
definite a-nd specific so that the public officer charged is
adequately apprised of the exact alleged wrongdoing so that
he may answer the charges before the people. Steadman v.
Halland (Mont. 1982), 641 P.2d 448, 39 St.Rep. 343.
Further, by our reading of City Ordinance 1-5-3, the
city council is equally responsible for conducting the
business of the meetings in the prescribed order. The
petition does not specify whether the city council objected
at the time the mayor allegedly violated the ordinance. Nor
does the petition otherwise set forth reasons why the mayor
alone was responsible for the alleged deviation from the
prescribed order of business. The second charge fails to
meet the test of specificity and definiteness under Steadman,
supra, and is legally insufficient to constitute a ground for
recall under section 2-16-603(3) of the Recall Act.
The third and final charge in the petition al-1-egedthe
mayor to be "incompetent to hold office" because he allegedly
failed to conduct an orderly council meeting on February 4,
1.982, and because he used "vulgar language" while conducting
that meeting. The charge neither specified how the meeting
was disorderly nor set forth the words used that were
allegedly "vulgar." While we hold that these allegations are
conclusory and general. and therefore subject to the same
attack under the rule of Steadman, supra, we hold also that
the failure to hold an orderly council meeting and use of
vulgar language, do not constitute grounds for recall under
section 2-16-603(3) of the Recall Act.
An assumption that the mayor used "vulgar language" at
the city council meeting could. lead to a conclusion that he
used poor taste, but use of such language does not establish
that the mayor is ' u f t ' or "unsuited" for the office.
"ni' And
further assuming that the mayor did not conduct an orderly
council meeting on February 2, 1982, that fact does not
justify a conclusion sufficient to invoke a recall election
based on a charge that he was "incompetent to hold office."
Assuming the meeting to have been disorderly, the petition is
devoid of information that would tell why the meeting was
disorderly, how or why the mayor was responsible for the lack
of order, and how or why the failure to maintain order
justified a recall election on the ground of incompetence.
The legislature has made clear its intent to Limit the
grounds for recall to specific instances of conduct. The
Attorney General. observed in 38 Op. Att'y Gen. 139 (1979):
"The [Recall] act was amended by the
legislature in 1977 and 1979. The 1977
amendment repealed a provision of the
original act which allowed recall for 'any
reason causing the electorate
dissatisfaction with a. pub1.i~ official
. .. notwithstanding good faith attempts
to perform the duties of his office.'
[See former section 59-612(3) , R.C.M.
1974.I
"The house and senate committee reports
concerning the 1977 amendment reveal that
portions of the Montana Recall Act as
passed by the 1976 initiative were
ambiguous and so broad as to conflict with
existing law. Of major concern was the
possibility an organized minority might
cause a costly recall.. election merely to
harass an official who was acting in a
manner which was contrary to their
wishes. "
Some state constitutions or statutes provide very broad
reca.11 provisions and vest in the electorate the power to
determine whether the acts al-leged in the petition are
grounds f o r r e c a l l . I n Montana, however, t h e L e g i s l a t u r e h a s
l i m i t e d t h e grounds f o r r e c a l l and h a s g i v e n t h e D i s t r i c t
C o u r t t h e power t o determine t h e l e g a l s u f f i c i e n c y of the
allegations i n the recall petition. The l e g a l s u f f i c i e n c v of
the allegations is not l e f t t o the electorate. Therefore,
a p e t i t i o n may n e v e r r e a c h t h e e l e c t o r a t e b e c a u s e it f a i l s t o
specify a c t s legally sufficient t o constitute grounds for
r e c a l l under s e c t i o n 2-16-603 ( 3 ) o f t h e R e c a l l Act.
W e reverse the t r i a l court, hold t h a t t h e al-legations
in the petition are legally insufficient to constitute
grounds f o r r e c a l l , and d i r e c t t h e t r i a l c o u r t t o e n t e r an
o r d e r e n j o i n i n g t h e e l e c t i o n a d m i n i s t r a t o r from a u t h o r i z i n g a
recall election.
Reversed and remanded w i t h d i r e c t i o n s .
W Concur:
e
edi, 4
Chief J u s t i c e
I
Justices
. District Judge, sitting
/
for Mr. Justice John C.
Sheehy