No. 82-28
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA ex rel. ROBERT PALMER
and GERNTINE CONRAD,
Petitioners and Respondents,
VS .
FERN HART, et al.,
Respondents and Appellants.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable H. William Coder, Judqe presidinq.
Counsel of Record:
For Appellants:
Robert L. Deschamps, 111, County Attorney, argued,
Missoula, Montana
Nancy K. Moe argued, Missoula, Montana
For Respondents:
Cummings Law Firm, Missoula, Montana
Edward A. Cumminqs argued, Missoula, Montana
Moses Law Firm, Billinss, Montana
Charles F. Moses argued, Billings, Montana
Submitted: September 10, 1982
Decided: December 22, 1982
DEC 2 2 1Y8i!
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Appellants, the Clerk and Recorder and the Elections
and Recording Supervisor of Missoula County, appeal from an
order of the Missoula County District Court in which they
were permanently enjoined from holding an election to recall
respondents Palmer and Conrad. We affirm the decision of
the District Court.
Respondents Conrad and Palmer are the duly elected and
acting County Commissioners of Missoula County. Conrad was
sworn into office on November 10, 1980, and Palmer on
January 5, 1981. Several hours after Palmer assumed office,
ne and Conrad met and, intentionally excluding the third
commissioner, began discussions and actions to reorganize
the county's administrative staff.
These acts generated considerable controversy in
Missoula County. On January 14, 1981, affidavits in support
of recall petitions and sample recall petition circulation
sheets against the two were filed with the elections super-
visor for approval as to form pursuant to section 2-16-
617(3), MCA, the Montana Recall Act. The petitions were
approved as to sufficiency of form and were certified by the
elections supervisor on January 19, 1981.
The petitions were then circulated and 675 circulation
sheets for each petition were filed with the elections
supervisor in several groups. The first 100 pages of each
petition were filed on March 20, 1981. Pages 101-200 were
filed on March 27, 1981. Pages 201-300 were filed on April
3, 1981. The final circulation sheets of the petitions,
pages 301-675, were filed on April 9, 1981.
As the elections supervisor received the pages of the
two p e t i t i o n s , t h e f o l l o w i n g p r o c e d u r e s were used t o c h e c ~
p e t i t i o n s i g n a t u r e s : ( 1) e a c h s i g n a t u r e was c h e c k e d a g a i n s t
a computer l i s t i n g of registered voters; (2) if t h e r e was
any q u e s t i o n concerning a signature's form o r the listed
address for the elector, t h a t s i g n a t u r e was compared w i t h
t h e o r i g i n a l r e g i s t r a t i o n c a r d on f i l e ; ( 3 ) f i v e s i g n a t u r e s
o u t o f t w e n t y on e a c h p a g e w e r e compared w i t h t h e o r i g i n a l
registration cards and those c a r d s were flagged; if one
s i g n a t u r e d i d n o t match, a l l s i g n a t u r e s on t h e p a g e w e r e
compared with t h o s e on f i l e ; (4) a l l p e t i t i o n pages were
reviewed f o r p o s s i b l e d u p l i c a t i o n s , f o r husbands s i g n i n g f o r
wives or wives signing for husbands, and for any other
questionable signatures. Using t h i s method, e i g h t d u p l i c a t e
signatures and three f r a u d u l e n t s i g n a t u r e s were d i s q u a l i -
fied. A p p r o x i m a t e l y 2200 s i g n a t u r e s w e r e a c t u a l l y c o m p a r e d .
On A p r i l 1 6 , 1 9 8 1 , t h e e l e c t i o n s s u p e r v i s o r c e r t i f i e d
t o t h e c o u n t y c l e r k and r e c o r d e r t h a t 8,526 s i g n a t u r e s were
v a l i d f o r t h e purpose of a r e c a l l p e t i t i o n a g a i n s t Conrad
and 8,606 s i g n a t u r e s were valid for the recall petition
a g a i n s t Palmer.
C o n r a d and P a l m e r f i l e d s e p a r a t e p e t i t i o n s i n D i s t r i c t
Court s e e k i n g d e c l a r a t o r y and e q u i t a b l e r e l i e f t o prevent
appellants from conducting a recall election. Temporary
r e s t r a i n i n g o r d e r s were i s s u e d i n both cases. The c a u s e s
were c o n s o l i d a t e d and were t r i e d b e f o r e t h e D i s t r i c t C o u r t
s i t t i n g w i t h o u t a j u r y on A u g u s t 31, 1 9 8 1 . The f a c t s g i v i n g
r i s e t o t h e l i t i g a t i o n w e r e s t i p u l a t e d t o by c o u n s e l f o r t h e
par ties.
On S e p t e m b e r 9 , 1981, t h e D i s t r i c t Court e n t e r e d i t s
findings of fact, conclusions of law, judgment and o r d e r
permanently enjoining the elections supervisor and the
county clerk and recorder from proceeding with recall elec-
tions. The District Court concluded that the recall petition
against Palmer had been impermissibly filed within two
months of his assumption of office, that the validation
process used in verifying signatures was in substantial
variance with the statutory requirements for verification
and was therefore fatal to the recall petition, and that the
recall petitions were held for verification for longer than
the fifteen days permitted by statute.
Appellants present three issues on appeal:
1. Whether the submission of a recall petition for
approval as to form constitutes a filing of the petition
under section 2-16-613(2), MCA;
2. Whether the signature certification process used
by the elections supervisor was fatal to the recall peti-
tion; and,
3. Whether section 2-16-620(3), MCA, requires the
certifying officer to compare and verify the signatures on
all of the circulation sheets of a petition within fifteen
days.
The Montana Recall Act, section 2-16-601 et seq., MCA,
was enacted as Initiative 73 and was approved by the voters
oi the state on November 2, 1976. The Act was subsequently
amended by the 1377 legislature.
In construing legislation, the function of this Court
is simply to ascertain and state what in terms or in sub-
stance is contained within the legislation. State Bar of
Montana v. Krivec (1981), Mont . , 632 P.2d 707,
710, 38 St.Hep. 1322, 1324; Dunphy v. Anaconda Company
(1968), 1 5 1 Hont. 76, 80, 438 P.2d 660, 662. Where the
l a n g u a g e of t h e s t a t u t e is p l a i n , unambiguous, direct, and
certain, the s t a t u t e speaks f o r itself. S t a t e v. Roberts
(1981)I Mont . , 633 P.2d 1214, 1217, 38 S t . R e p .
1551, 1554. In short, it is t h i s C o u r t ' s d u t y t o c o n s t r u e
the law as it finds it. In t h e Matter of the E s t a t e of
Baier ( 1 9 7 7 ) , 1 7 3 Mont. 396, 401, 567 P.2d 943, 946. The
same r u l e s a p p l i c a b l e t o j u d i c i a l i n t e r p r e t a t i o n of legis-
l a t i o n e n a c t e d by t h e l e g i s l a t u r e a p p l y t o t h e i n t e r p r e t a -
t i o n of i n i t i a t i v e s . K r i v e c , 632 P.2d a t 710.
The recall process has been characterized as a
special, extraordinary, and unusual proceeding, State ex
rel. L a n d i s v. Tedder ( 1 9 3 2 ) , 106 F l a . 140, 1 4 3 So. 148,
149, and a s a h a r s h remedy, Cloud v. D y e s s (Lz.App. 1965),
1 7 2 S o . 2 d 5 2 8 ; S t a t e e x r e l . B a g g e t t v . Long (La.App. 1952),
60 So.261 96. Even where the recall right stems from a
constitutional provision, a f a i l u r e t o s u b s t a n t i a l l y comply
w i t h t h e s t a t u t o r y r e q u i r e m e n t s t h a t govern t h e p r o c e s s is
fatal to the recall. F i a n n a c a v. G i l l ( 1 9 6 2 ) , 78 Nev. 337,
372 P.2d 683, 687. Where t h e b a s i s f o r t h e procedure is
p u r e l y s t a t u t o r y , a s h e r e , f a i l u r e t o comply w i t h t h e r e c a l l
s t a t u t e s is f a t a l t o a n y r e c a l l a t t e m p t . Gibson v. Campbell
( 1 9 2 5 ) , 1 3 6 Wash. 4 6 7 , 2 4 1 P. 2 1 , 23; S t a t e e x r e l . McCauley
v. G i l l i a m ( 1 9 1 4 ) , 8 1 Wash. 1 8 6 , 1 4 2 P. 470; cf ., P l a t t v.
Ross ( 1 9 3 3 ) , 112 F l a . 5 0 2 , 1 5 0 So. 716. The l e g i s l a t u r e may
i m p o s e r a t i o n a l r e s t r a i n t s upon t h e e x e r c i s e o f the statu-
tory right to recall. Eisenberg v. Committee to Recall
Levin (1980), 175 N.J.Super. 115, 417 A.2d 1067, 1070;
P e t i t i o n of Smith ( 1 9 7 1 ) , 114 N.J.Super. 421, 276 A.2d 868,
876. Finally, t o l i b e r a l l y construe t h e s t a t u t e s governing
the exercise of the power to recall does not constitute a
license to totally ignore the requirements of those
statutes. Hazelwood v. Saul (Colo. 1980), 619 P.2d 499,
501.
The Montana Recall Act provides as a specific limita-
tion that " [nlo recall petition shall be filed against an
officer until he has held office for two months." Section
2-16-613(2), MCA. Here, sample recall petitions and sup-
porting affidavits were submitted to the elections super-
visor for approval as to form pursuant to section 2-16-617,
MCA, within ten days of Palmer's assumption of office.
Appellants contend that this "submission" of sample peti-
tlons is not violative of the limitation set in section
2-16-613(2), MCA, since no signed petitions were filed until
Palmer had been in office for two months. We disagree.
The statutory limitations set out in the Montana
Recall Act express a clear intent that the recall procedure
not be lightly undertaken: no more than one officer may be
named in a recall petition; no petition may be filed against
an officer until he has held the office for two months; no
recall petition may be filed against an officer who has been
the subject of a recall election within the preceding two
years unless election costs for the preceding recall have
been refunded. Section 2-16-613, MCA. These limitations
ensure that this harsh remedy is taken only after an officer
has been in office a sufficient amount of time to allow the
voters to determine that he is not doing a satisfactory job,
and to furnish a cooling-off period so that election issues
and controversies are not confused with performance in
office.
Iiere, the sample recall petitions that were required
to be approved as to form in order to begin the recall
process were submitted within ten days of Palmer's swearing-
in. This clearly violates the two-month "cooling-off"
period provided as a specific limitation on the recall elec-
tions. Cf. Tangeman v. Coater (1911), 51 Colo. 208, 117 P.
145. Palmer was not allowed to establish himself in office
and to provide a record of actions by which voters could
judge his exercise of the office. Appellants now attempt to
define the presentment of the sample petitions as a "submis-
sion" rather than a "filing" and argue that, therefore, it
was outside of the statutory limitation. This contention
fails.
The filing of the sample petitions began the recall
election process. The stipulated facts in this case charac-
terized the action as a filing. Additionally, we have long
recognized that depositing papers with the proper custodian
for keeping constitutes a "filing." Pierce v. Pierce (1939),
108 Mont. 42, 45, 89 P.2d 269, 270, and cases cited therein.
The filing of the sample recall petitions and supporting
affidavits within the two-month limitation constitutes a
violation of that limitation.
Appellants next challenge the District Court's conclu-
sion that the signature verification process used by the
elections supervisor was in substantial variance with the
statutory requirements and was therefore fatal to the recall
petitions. The appellants argue that the statute does not
specifically require that each signature be compared; that
to compare all signatures would be almost physically
impossible within the fifteen-day limit set by section 2-
16-620(3), MCA, and that the use of the procedure estab-
l i s h e d i n T i t l e 1 3 , C h a p t e r 27, MCA, f o r t h e v e r i f i c a t i o n o f
s i g n a t u r e s on p e t i t i o n s f o r initiatives, referendums, con-
s t i t u t i o n a l c o n v e n t i o n s a n d c o n s t i t u t i o n a l amendment i s
within t h e d i s c r e t i o n of t h e c e r t i f y i n g o f f i c e r . Again, we
disagree.
'The Montana R e c a l l A c t r e q u i r e s t h e county c l e r k to
"compare t h e s i g n a t u r e s of t h e e l e c t o r s i n such c o u n t y w i t h
r e g i s t r a t i o n s i g n a t u r e s on f i l e i n s u c h c l e r k ' s o f f i c e and,
i f s a t i s f i e d the signatures a r e genuine, c e r t i f y t h a t fact."
S e c t i o n 2-16-Q20(1), MCA. W e must c o n s t r u e t h e s t a t u t e from
t h e p l a i n meaning of t h e words used. S t a t e v. Weese ( 1 9 8 0 ) ,
- Mont. , 616 P.2d 371, 373, 37 S t . R e p . 1620, 1622.
'The language of this statute, using "shall" rather than
"may," ~ n a n d a t e s t h a t t h e s i g n a t u r e s b e c o m p a r e d . S t a t e ex
r e l . McCabe v . D i s t r i c t C o u r t ( 1 9 3 8 ) , 1 0 6 Mont. 2 7 2 , 277, 76
P.2d 634, 637. The s t a t u t o r y l a n g u a g e d o e s n o t g r a n t d i s -
cretion i n the matter t o the clerk. The a p p e l l a n t s d i d n o t
meet t h e s t a t u t o r y m a n d a t e by a p p l y i n g t h e s t a t u t o r y p r o c e -
dure.
T h i s Court must a s c e r t a i n and d e c l a r e t h e s u b s t a n c e of
t h e s t a t u t e it c o n s t r u e s . W e may n o t i n s e r t w h a t h a s b e e n
omitted. S e c t i o n 1-2-101, MCA. C h e n n a u l t v. Sager (1980),
- Mont . , 610 P.2d 173, 176, 37 St.Kep. 857, 861.
Here, the plain and unambiguous language of the statute
r e q u i r e s t h e s i g n a t u r e s on t h e p e t i t i o n s t o be compared w i t h
t h e s i g n a t u r e s on t h e v o t e r r e g i s t r a t i o n c a r d s . Cf., Jaffe
v. A l l e n ( 1 9 7 8 ) , 87 Mich.App. 2 8 1 , 274 N.W.2d 3 8 , 40; C i r a c
v. L a n d e r C o u n t y ( 1 9 7 9 ) , 95 Nev. 723, 6 0 2 P.2d 1012, 1016;
C l o u d v. Dyess, supra. While it might be t o a p p e l l a n t s '
advantage to allow the clerk's office the discretion to
utilize the less arduous signature comparison procedure pro-
vided 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
dnd was therefore fatal to the recall petition.
Flnally, appellants argue that the District Court
erred in its application of section 2-16-620(3), MCA. This
section of the recall act provides that, "[tlhe county clerk
may not retain any petition or any part of it for more than
fifteen days." No set of petition sheets was held for longer
than nine days and only twenty-seven days elapsed from the
turning in of the first set of petition sheets and the
verification of all petition sheets. Appellants argue that
the purpose of the fifteen-day limit is simply to prevent
the official who is responsible for verification of the
signatures from dragging his feet and to ensure that the
process moves along. They contend, therefore, that section
2-16-520(3), MCA, requires only that the county clerk
compare and verify the signatures on any given set of
petition sheets within the fifteen-day limit. We reject
this contention.
Viewing the Montana Recall Act as a whole and section
2-16-620(3) by itself, it is clear that references to "a
petition" refer to the collective group of circulation
sheets containing the voters' signatures rather than to one
of the individual circulation sheets. The language in
section 2-16-620(3), requiring that "any petition o r any
p a r t o f i t " ( e m p h a s i s a d d e d ) makes t h i s c l e a r . The s t a t u t e
dealing with the form of the circulation sheets, section
2-16-617, MCA, a l s o c l e a r l y d i f f e r e n t i a t e s t h e two.
Appellants a l s o argue that t h e only purpose of the
fifteen-day l i m i t is t o ensure t h a t t h e verifying o f f i c i a l
d o e s n o t d e l a y t h e p r o c e s s a n d b a r a n e l e c t i o n by " s i t t i n g
f o r e v e r " on p e t i t i o n s . T h i s argument, too, fails. Should
t h e o f f i c i a l charged with f i l i n g a p e t i t i o n r e f u s ? t o do s o
when t h e p e t i t i o n i s l e g a l l y s u f f i c i e n t , t h e Montana R e c a l l
Act p r o v i d e s a w r i t o f mandamus a s a remedy t o t h e p e t i -
tioners. S e c t i o n 2-16-615, MCA.
The D i s t r i c t C o u r t was c o r r e c t i n h o l d i n g t h a t P a l m e r
and Conrad were entitled to relief in the form of a
permanent i n j u n c t i o n . See S t a t e e x r e l . Landis v. Tedder,
supra.
Affirmed.
"%&llh~a~
3 4Pa
Chief J u s t i c e
~ u d ~ e s i- t t i n g i n p i a c e o f
,
Mr. J u s t i c e J o h n C. S h e e h y