I N THE SUPREME COURT OF THE STATE OF MONTANA
1983
RONALD J . KOTAR, B R I A N C . ROAT,
JAMES E . MOORE, 11, a n d TED J . D A Y ,
Plaintiffs and Respondents,
vs.
TONY ZUPAN a n d B A R B A R A THORMAHLEN,
PAULA ROWLEY, e t a l . ,
Defendants and Appellants.
Appeal from: D i s t r i c t Court of the Thirteenth Judicial District,
I n and f o r t h e County o f Carbon
Honorable Robert Wilson, Judge p r e s i d i n g .
Counsel of Record:
For Appellants :
Lynaugh, F i t z g e r a l d & H i n g l e , B i l l i n g s , Montana
William P. F i t z g e r a l d argued, B i l l i n g s , Montana
A l a n C h a s e , C o u n t y A t t o r n e y , Red L o d g e , Montana
For Respondents:
A y e r s a n d A l t e r o w i t z , Red L o d g e , M o n t a n a
A r t h u r W . A y e r s , J r . a r g u e d , Red L o d g e , M o n t a n a
Submitted: November 1 7 , 1 9 8 2
Decided: February 1 0 , 1983
-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
This action arose on August 5, 1982, when plaintiffs,
who are public officials of the City of Red Lodge, filed an
action to enjoin defendants Tony F. Zupan, Clerk and Recorder
of Carbon County, and Barbara Thormahlen, Election
Administrator of Carbon County, from holding a recall
election. Sixteen electors of the city of Red Lodge were
allowed to intervene as defendants. A hearing was held on
August 25, 1982, and the District Court entered an order on
August 27, 1982, permanently enjoining the recall elections.
The intervening defendant-electors appeal.
We affirm.
In the summer of 1981, the garbage contractor for the
City of Red Lodge began calling the city council's attention
to violations of the city garbage ordinance by a large
grocery store, Beartooth Food Farm. The violations made it
difficult to pick up Food Farm's garbage, and eventually the
contractor refused to make further pickups from the store.
In October, 1981, the city council contracted with James
Coutts to haul Food Farm's garbage. Coutts continued to haul
the garbage three times a week until February 1981. The city
council knew at all times that Coutts did not have a proper
license. Coutts had suggested that the city council- hire
him, which would legitimize his status by making him a city
employee. This proposal was not accepted by the city.
A portion of the public, which was familiar with the
license requirement, became upset with the council regarding
the hiring of Coutts. Eventually, Food Farm began hauling
its own garbage in order to avoid further bad publicity.
Four separate recall petitions were circulated against
the officials deemed most responsible for the policy, that
being Mayor Ronald Kota-r and Aldermen Brian Roat, James
Moore, and Ted Day.
Following are the issues which dispose of this case:
1. Sufficiency of the signature verification procedure
used on all recall petitions.
2. Absence of statutory headings from some of the
circulation sheets in the Mayor Kotar attempted recall.
3. Percentage of signatures required in each of the
aldermen's districts.
With regard to the first issue, the same method of
signature verification was used by the election administrator
on all recall petitions. All of the recall petitions were
delivered to the election administrator in July, 1982.
Initially the administrator compared petition signatures on a
random basis, under which only a portion of the signatures
contained on each sheet were actually compared to the
registration signatures. The election administrator
certified the recall petitions on July 19, 1-982. The
administrator did not compare each signature with the
registration signature on file until August 24, 1982. This
procedure does not meet the plain requirements of section
2-16-620(1), MCA, which provides in part:
"The county cl-erk in each county in which such a
petition is signed shall compare the signatures of
the electors in such county with registration
signatures on file in such clerk's office and, if
satisfied the signatures are genuine, certify that
fact to the officer with whom the recall petition
is to be filed . ." .
In State ex rel. Palmer v. Hart (1982), Mont . I
P.2d - , 39 St.Rep. 2277, this Court held that random
verification of signatures was not sufficient and in holding
that the comparison must be made in accordance with the
statute stated:
"Here, the plain and unambiguous language of the
statute requires the signatures on the petitions to
be compared with the signatures on the voter
registration cards. Cf., Jaffe v. Allen (1978), 87
Mich. App. 281, 274 N.W.2d 38, 40; Cirac v. Lander
County (1979), 95 Nev. 723, 602 P.2d 1012, 1016;
Cloud v. Dyess [(La. App. 1965), 172 So.2d 5281.
While it might be to appellants' advantage to allow
the clerk's office the discretion to utilize the
less arduous signature comparison procedure
provided by statute for use in other petition
processes, this Court may not do so. We must
presume that the legislative body, in this case the
voters of the state, knew what it was doing. Dept.
of Revenue v. Burlington Northern, Inc. (1976),169
Mont. 202, 211, 545 P.2d 1083, 1088. The District
Court was correct in holding the signature
comparison process here was in substantial variance
with the statutory requirements and was therefore
fatal to the recall petition." Palmer , P.2d
at , 39 St.Rep. at 2281.
While the petitions eventually were verified by
comparing each signature with the registration signature, that
was not accomplished within 15 days of submission. More than
35 days passed before verification was completed. This was
fatal to all fogr recall petitions. Palmer, P.2d at I
Next we consider the issue of the absence of headings on
a portion of the circulation sheets in the mayor's recall
petitions. A number of circulation sheets contained
signatures which were stapled to the initial sheet containing
the heading and reasons for recall. If those signatures are
eliminated, there are not sufficient signatures to constitute
the 20 percent of electors signatures needed under the
Montana Recall Act.
The form of recall petition required under section
2-16-616, MCA, is as follows in pertinent part:
"Form of recall petition. (1) The form of the
recall petition shall be substantially as follows:
WARNING
"A person who knowingly signs a name other than his
own to this petition or who signs his name more
than once upon a petition to recall the same
officer at one election or who is not, at the time
he signs this petition, a qualified elector of the
state of Montana entitled to vote for the successor
of the elected officer to be recalled or the
successor or successors of the officer or officers
who have the authority to appoint a person to the
position held by the appointed officer to be
recalled is punishable by a fine of no more than
$500 or imprisonment in the county jail for a term
not to exceed 6 months, or both, or imprisonment in
the state prison for a term not to exceed 10 years,
or both.
RECALL PETITION
.
". . By his signature each signer certifies: I
have personally signed this petition; I am a
qualified elector of the state of Montana and (name
of appropriate political subdivision); and my
residence and post-office address are correctly
written after my name to the best of my knowledge
and belief.
recall as prescribed above." (underscoring added)
The argument is made that the form is not mandatory and
that under section 2-16-618, MCA, I' . . . if substantially
followed, the petition shall be sufficient, notwithstanding
clerical and merely technical errors." We are therefore
required to determine if these are clerical and merely
technical errors only.
As quoted, the statute is very clear in providing that
each sheet shall contain the heading and reasons for the
recall. As the warning is read, it becomes apparent why that
warning should be on each signature sheet. The warning
advises proposed signers that if the signer is not a
qualified elector, entitled to vote for the elected officer
to be recalled, the signing of the petition is punishable by
a fine of not more than $500, imprisonment in the county jail
not to exceed 6 months, or both, or imprisonment in the state
prison for a term not to exceed ten years. In view of the
provisions, the requirement that the warning be on each
signature sheet makes reasonable sense. In addition, in the
following statement, the signer certifies that he is a
qualified elector in the particular political subdivision and
that his residence and post office address are correctly
written. Taken together, there is a clear requireme.nt for
the inclusion of the warning and statement on each signature
sheet. We therefore conclude that the omission of these
matters constitutes more than clerical or technical errors.
We agree with the District Court that the sheets which did
not contain the required headings and reasons for recall
cannot be considered, with the result that there are
insufficient signatures for Mayor Kotar's recall election.
With regard to the percentage of electors required for
the individual aldermen, there were 1,218 registered electors
for the city of Red Lodge qualified to vote at the November
1981 municipal election. Section 2-1-6-614, MCA, provides:
"Recall petitions for elected or appointed officers
of municipalities or school districts shall contain
the signatures of qualified electors equalling at
least 20% of the number of persons registered to
vote at the preceding election for the municipality
or school district."
Twenty percent of the registered voters of Red Lodge equals
244. The petitions asking the recall of Aldermen Roat, Moore
and Day contained verified signatures of 101, 121 and 100.
While these signatures exceed-ed 20% of the voters in the
district of each alderman, they were less than the 20% of the
registered voters for the city of Red Lodge.
The District Court held that there were an insufficient
number of signatures on each alderman's petition in that a
number equal to 20% of the electors of the entire
municipality must sign the petitions. We disagree.
Section 2-16-612 (3) provides:
"Every person who is a qualified elector of a
political subdivision of this state may sign a
petition for recall of an officer of that political
subdivision. However, if a political subdivision
is divided into election districts, a person must
be a qualified elector in the election district to
be eligible to sign a petition to recall an officer
elected from that election district."
Only those Red Lodge electors living in each alderman's
district are eligible to sign a petition to recall that
alderman. Construing sections 2-16-612(3) and 2-16-614, MCA,
together shows that only 20% of the qualified electors of an
alderman's district need sign a recall petition.
A £ firmed.
We concur:
PA--&~*WW&
Chief Justice
Justices
Mr. Justice John C. Sheehy, dissenting:
I dissent. I will file later my reasons for dissent.
i ~ '
.
Mr. Justice John C. Sheehy, concurring in part and dissenting
in part:
I concur with the majority where it holds that there was
a sufficient number of signatures for each of the officers
involved in the recall effort. I dissent with all possible
vigor to the remainder of the majority opinion.
The decision in this case is a giant step backwards for
the people of Montana. Its immediate effect is to blunt,
nay, negate the efforts of a substantial number of residents
in Red Lodge to have a say about their elected officers
through recall. But its longlasting effect is to give
opponents of recall tools to defeat the recall process. As a
court, we should not be thwarting recall efforts. All
governments, Jefferson said in a famous document, derive
their just powers from the consent of the governed. This
Court has needlessly prevented those citizens of Red Lodge
from expressing their dissent--their lack of consent to be so
governed. There is little to be proud of in that result.
Elected officials regard recall as a tramp in the
parlor. For that reason efforts to have a recall act enacted
in the leqislature fell short in several sessions.
Frustrated in the legislative process, the believers in
recall fostered the "Montana Recall Act" by the initiative
process in 1976 as a way to bypass a negative legislature.
Put to the people for their vote, the Montana Recall Act
passed 155,899 for to 115,702 against. At last, the
believers exulted, power to the people had been achieved.
The legislature got its hands on the Recall Act in its
1977 session. By way of "cleaning up the act" they inserted
several new provisions. One was the "warning" provision
relied on here by the majority. Another was the requirement
tha.t "each separate sheet of the petition" should contain the
warning and reasons for recall. Only incidentally the
legislature increased the number of signers to petition for
the recall of legislators from 10 percent to 15 percent of
the eligible voters.
The legislators, however, did not remove section
2-16-618, MCA, (it wa.s probably overlooked by them) as
follows:
"2-16-618. Forms not mandatory. The forms
prescribed in this p a x a r e not mandatory, and if
substantially followed, the petition shall be
sufficient, notwithstanding clerical and merely
technical errors."
Section 2-16-618 was in the original initiative. It is
a mandate to us, in construing the act, to uphold petitions
if they substantially follow the act. The majority here,
enjoined not to be technical, have skated around this section
on a cold technicality of reasoning, finding "reasonable
sense" in a warning on each sheet. Forgotten by the
majority, but showing the technicality of the technique of
insisting on a warning on each page, is another provision in
the Recall Act that the petition may be a continuous sheet,
folded to the dimensions of 8 1/2 x 14 inches. Thus a
continuous sheet, folded like a computer printout, would pass
muster under the act, even though the warning appeared only
at the beginning, so long as the folds did not exceed 25
pages. Section 2-16-617 (1), (2), MCA.
I see extreme technicality in requiring the warning to
be on each successive sheet of a stapled petition, when a
continuous sheet, folded as a printout form of several pages
is valid under the act. I do not agree that this Court
should join with the legislature in thwarting the obvious
purpose of recall and thus prevent electors from getting to
the meat of the issue, whether the electors consent to X
remaining in office.
The other reason relied on by the majority to defeat the
recall in this case is that the county clerk did not properly
verify the signers of the petition. Again the reasoning of
the majority is most technical. All that the statute
requires is that the county clerk be "satisfied [that] the
signatures are genuine" and on that satisfaction certify his
determination so that the election may be held. Section
2-16-620, MCA. Thus the majority makes it possible for a
recall effort to be blocked merely by the inaction of a
county officer over whom the signers of the recall petition
have no control. Under the holding of the majority, a
recalcitrant, obstreperous or just plain negligent county
clerk can frustrate the recall process.
As I said, the majority has given elected officials two
powerful tools to obstruct the recall process, technical
interpretation, and official inaction. After all these years
of effort, supporters of the recall process are back nearly
where they started.
Justice fl
J