                                               No. 88-489
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                   1988


THOMAS SHEEHY,
                               Petitioner and Appellant,
       -vs-
JENNY LEE FERDA, Clerk & Recorder,
Chouteau County, Montana,
                               Respondent and Respondent.


APPEAL FROM:                   District Court of the Twelfth Judicial District,
                               In and for the County of Chouteau,
                               The Honorable Henry I,oble, Judge presiding.

COUNSEL OF RECORD:
       For Appellant:
                               Douglas J. Wold argued, Polson, Montana
       For Respondent:
                               Tracy Axelberg argued; ~ a r d i n e ,Stephenson, Blewett
                               & Weaver, Great Falls, Montana

       For Amicus Curiae:

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                               Donald A Ranstrom, President, Montana County Attorneys
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                               Assoc., Chinook, Montana
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                           -                       Submitted:   October 14, 1988
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                                                     Decided:   December 2, 1988
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Filed: &
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                                                   Clerk
Mr. Justice John C.       Sheehy delivered the Opinion of the
Court.


     The author of this Opinion is not related to Thomas
Sheehy, the County Attorney of Chouteau County, by blood or
marriage and no personal acquaintanceship exists. If a blood
or marriage relationship between the author and Thomas Sheehy
existed,   this   author   would   be  precluded   from   any
participation in the cause by reason of our rule and statute
on disqualification, adopted on September 13, 1988 (see,
Advance Sheet, Vol. 42, 759 P.2d No. 3, S 3-1-803(2), MCA, as
follows) :
     Any justice .    .
                    . must not sit or act in any action
     or proceeding:


     (2) When he is related to either party or any
     attorney or member of a firm of attorneys for a
     party by consanguinity or affinity within the
     fourth degree, computed according to the rules of
     law.
Therefore, the author is not disqualified in this case.
     Thomas J. Sheehy is the duly elected, qualified and
acting county attorney of Chouteau County, Montana.   He filed
an action in the District Court, Twelfth Judicial District,
Chouteau County, for a writ of prohibition, injunction or
declaratory relief to stop the submission to the electors at
the November 8 general election the question of his recall
from office. Sheehy's petition was denied on September 27,
1988, by the District Court. He appealed to this Court, and
after oral. argument in the cause, we entered an Order on
October 14, 1988, restraining and enjoining the respondent
Jenny Lee Ferda, as County Clerk and Recorder of Chouteau
County, Montana, and as the Election Administrator of that
county, her agents, employees, appointees, and all persons
acting by or through her from submitting the proposed recall
of Thomas Sheehy to the electors of Chouteau County at the
general election to be held on November 8, 1988, to the
extent that the same had not then been submitted; and from
counting the results of any vote on said recall; and from
canvassing or entering upon any records of county or state
any purported results of said recall election. The order was
issued for reasons of expediency, and this Opinion is
intended to supplement and support the issuance of that
Order.
     It should be understood that Jenny Lee Ferda is the
nominal defendant in this case by virtue of her being the
incumbent Chouteau County Clerk and Recorder and Election
Administrator.   She has no official interest in the outcome
of this action, except as to the impact it may have upon her
duties of office.
     The petition to recall Sheehy from his office as county
attorney is based upon alleged incompetence in office. The
principal issue is whether the allegations of fact upon which
the claim of incompetence is based are patently and
demonstrably false. Petitioner contends that the allegations
of fact are false, and that he is entitled to a writ of
prohibition against the recall election.      We proceed to
examine the issues of fact set forth in the recall petition
to determine their patent truth or falsity. Depending upon
whether the allegations are patently true or false, we can
then proceed to determine the form that relief in the cause
should take, if any.
     The Montana Recall Act was adopted as an initiative
measure by the electors at the general election on November
2, 1976. Parts of the Act were amended by the legislature in
1979.   Insofar as pertinent to this case, the grounds for
recall are set forth in 5 2-16-603, MCA. It provides:
     (1) Every person holding a public office 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.
     It is the law that when a petition for recall of an
elected public officer is circulated, the petition form must
be accompanied by a written statement containing the reasons
for the desired recall as stated in the petition.          In
addition, the truth of purported facts contained in the
statement must be sworn to by at least one of the petitioners
before a person authorized to administer oaths.       Section
2-16-617 (4), MCA.
     In this case, the petition was accompanied by an
affidavit of W. F. Gertson, M.D., Chouteau County Health
Officer (it is not clear whether Dr. Gertson signed the
petition as county health officer, or used the term to
describe himself as the signator).     The affidavit of Dr.
Gertson on which the petition is based, recited:
     To the Honorable Jenny Lee Ferda, County Election
     Administrator of Chouteau County.
     I believe Thomas Sheehy, Chouteau County Attorney,
     should be recalled because of:
     Incompetence in the   prosecution   of   the   Richard
     Kurth family case.
     Growing marijuana is a major crime and it is common
     judicial practice to punish by arrest, jail, bail
     if posted, and recommendation of a fine or prison
     or both.
     Plea Bargaining for the purpose of no prison term
     for some, short terms for others, no fines for
     anyone, and altered court dates that kept the
     public from attending is not in the best interest
     of justice.
     This type of prosecution will only encourage more
     drug traffic, and other crimes in Chouteau County.
    If the grower gets approximately 1/3 of the
    $5,000,000. street value, and it takes 58 days to
    mature a crop of marijuana; it would earn
    $1,650,000. a crop; if grown since documented in
    1986, it means $18,777,000.00.      No money for
    fines??
     This prosecution from the beginning was unfair to
     our county, state, and federal law enforcement
     people.   For this magnitude of a crime we needed
     federal attorneys to prosecute the case.      The
     County Attorney received an oral and written
     request for such.

     I swear that the reasons for this recall contained
     in this petition are to the best of my knowledge
     true.
                             /s/ W. F. Gertson, M.D.
                             Chouteau County Health
                             Officer
    Subscribed and sworn before me a Notary Public for
    the State of Montana
    Dated this 6th day of May, 1988
                             /s/ Debra McSweeney
     (SEAL)                  Notary Public
     The stated grounds for the recall petition are
incompetence. Under  2-16-617, MCA, the petition form had
to be accompanied by a written statement containing the
reasons for t.he desired recall. The affidavit supporting the
petition is defective.   Dr. Gertson swears not to facts
within his knowledge, but to the "best" of his knowledge.
     An affidavit is a written declaration, under oath, made
without notice to the adverse party. Section 26-1-1001, MCA.
While courts will uphold affidavits based upon the "best of
the affiants knowledge," or upon information and belief in
proper circumstances, here the intent of the legislature is
clear:    "the truth of purported facts contained in the
[recall] statement must be sworn to by at least one of the
petitioners" for recall.   The allegations must be sworn to
from the knowledge of the affiant and not from a lesser basis
so that the electors, in voting on the recall petition can
rely on the truth of the grounds set forth, as in this case,
for the claimed incompetence. In People v. Lennox (1978),
405 N.Y.S.2d 581, it was held that the test of a statement of
facts under oath as to its sufficiency is whether it has been
drawn in such a manner that it might be the basis of a charge
of perjury if any material allegation contained therein is
false, as the affiant is held to strict accountability for
the truth and accuracy of the contents of his affidavit. As
long ago as 1923, Montana adopted a similar test holding that
"one of the rules in testing the sufficiency of an affidavit
to a mechanic's lien is whether perjury is assignable upon
it."   Gregg v. Sigurdson, et al. (1923), 67 Mont. 272, 277,
215 P. 662, 663.
     In the light of the direction of the legislature that
the "truth of the purported facts" should be sworn to by one
of the petitioners an affidavit based only on the "best" of
the affiant's knowledge is deficient.
     The importance of a proper affidavit in this case is
magnified by the patently false statements of fact or
misconceptions contained in the affidavit on which the
petition for recall is based. An added danger in this case
is that since Dr. Gertson signed the affidavit as the county
health officer, the uninitiated elector might give credence
to the statements on the assumption that a county officer
knew whereof he spoke.
     The Gertson affidavit recites that  ". .  . it is common
judicial practice to punish by arrest, jail, bail if posted,
and recommendation of a fine or prison or both."       First,
Sheehy, as a prosecutor, has no judicial function to perform.
Secondly, it is not common judicial practice to punish a
person arrested for crime by jail or providing bail.      The
purposes of commitment to jail or admission to bail do not
presume the guilt or innocence of the charged defendant. To
punish by means of bail or commitment to jail before a
defendant's conviction would deprive him of his presumption
of innocence and the right to confront witnesses before his
conviction. There is no such "common judicial practice" and
the statement is patently false.
     The statement that "Plea Bargaining .      .
                                            . is - in the
                                                   not
best interest of justice" completely belies the fact that
plea bargaining is a recognized part of federal and state
criminal procedure.    One may disagree with the concept of
plea bargaining.    Many judges and prosecutors do not agree
with plea bargaining. It is, however, recognized as a tool
that makes possible a quicker administration of burgeoning
criminal cases. As far as we are aware, every judge in the
state system in this state makes it clear that he or she is
not bound by any plea bargain proposed to him or her in the
disposition of criminal causes.     Rule 410 of the Federal
Rules of Evidence expressly recognizes that plea bargains are
ongoing, and therefore no plea, offer to plea, plea
discussions or related statements are admissible in any civil
or criminal proceedings under the Federal Rules where the
statements are made in the course of plea discussions between
an attorney and the prosecuting officer which do not result
in a plea of guilty or which result in a plea of guilty later
withdrawn. The evident intent of Rule 410 is to protect the
plea bargain process.
     Rule 410 of the Montana Rules of Evidence differs from
the federal provision but the result is the same: evidence
of a plea of guilty, later withdrawn, or statements made in
connection with any offer to plead guilty to the crime
charged or any other crime is not admissible in any civil or
criminal action or proceeding against the party who made the
plea or offer. What these rules of evidence tell us is that
plea bargaining is a fact of life and that to encourage plea
bargaining, statements made in connection therewith are not
admissible in any civil or criminal action.          Whatever
arguments may exist for or against plea bargains, Thomas
Sheehy did not invent the process and his right to hold
office should not depend upon the existence or the propriety
of plea bargaining. Here, the plea bargain for which Sheehy
contended and got acceptance, both from the Attorney
General's office and from the federal authorities, was more
harsh than the sentences and fines imposed by the district
judge in disposing of the defendants, whose cases became the
subject of the recall petition.       Three county attorneys
testified that Sheehy ' s plea bargain was good prosecut-orial
practice.
     The further statement in the petition that this type of
prosecution will only encourage more drug traffic and other
crimes in Chouteau County is purely conclusionary and is not
a statement of fact which could be within the knowledge of
Dr. Gertson. Again the implication that Sheehy juggled court
appearance dates to frustrate public appearances is false.
     The statements in the affidavit about the gross receipts
of the marijuana are terribly exaggerated.      The Attorney
General's investigation concluded that the defendant's gross
receipts were approximately $400,000 and not the amounts set
forth in the recall petition. Again, Dr. Gertson's position
as county health officer would tend to mislead the
uninitiated elector as to the exactitude of the fiqures set
out in the recall petition.
     The allegation that the prosecution of the defendants
from the beginning was unfair to the county, state and
federal government and that federal attorneys were needed to
prosecute the case again is incorrect.     The United States
Attorney testified that he was elated with the prosecution of
this case and "could not have done better himself ."   Sheehy
had no power to call in federal attorneys to prosecute this
case since the charges were not made in the federal courts.
     We determine that the allegations in the recall petition
are patently false, misleading, and based on misconception.
Sheehy's competence or incompetence cannot be measured by
those statements of purported fact. As a matter of law, the
recall petition is insufficient.     The Montana Recall Act
requires that the charge of incompetence, when it is used for
recall, be based on the "truth of purported facts contained
in the statement" sworn to by a petitioner.      This recall
petition falls far short of that legal requirement.
     We are fully agreed on this Court that the right of
recall of a public officer is an important part of the rights
of citizenship in Montana.      In a proper case, we would
protect that right of recall, and leave it to the voters to
determine whether the officerholder should continue in
office. The officeholder, however, is entitled to at least a
level playing field; if he is to be removed from office, his
removal must be based on true statements which demonstrate
his incompetence, or any other grounds for which recall may
be sought.
     We held in Steadman v. Halland (1982), 197 Mont. 45, 54,
641 P.2d 448, 453 that specificity of the alleged facts is an
important part of a recall petition. There we said in part:
     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.

The respondent has argued, and the District Court agreed,
that the question of Sheehy's recall was political, rather
than legal, and that the truth of the allegations was a
matter for the electors of Chouteau County to decide. The
statutes do not contemplate that the electors will decide the
truth of charges made against a public officer in a recall
petition.    The Recall Act requires truth in the beginning of
the process.
     Whether      the   allegations are    legally sufficient is a
matter of law for a district court to decide.      This Court
said in Foster v. Kovich (1983), 207 Mont. 139, 150, 673 P.2d
1239, 1246:
     Some state constitutions or statutes provide very
     broad recall and vest in the electorate the power
     to determine whether the acts alleged in the
     petition are grounds for recall.       In Montana,
     however, the legislature has limited the grounds
     for recall and has given the District Court the
     power to determine the legal sufficiency of the
     allegations in the recall petition.      The legal
     sufficiency of the allegations is not left to the
     electorate. Therefore, a petition may never reach
     the electorate because it fails to specify acts
     legally sufficient to constitute grounds for recall
     under section 2-16-603(3) of the Recall Act.

     For    the    reasons   foregoing, we    issued   our   Order   of
October    14, 1988, removing the         recall petition    from    the
electorate, and directing the County Clerk and Recorder not
to count any results with respect to the recall and not to
canvass or enter upon any records of county or state any
purported results of said recall election.        We did so by
means of an injunction. The petitioner on appeal has argued
for a writ of prohibition but we determined that under the
applicable statute, injunction was the only proper relief.
     Our decision to issue an injunction came from the
language of S 2-16-615 ( 2 ) , MCA.  That statute provides that
if the election officer refuses to file or to accept any
petition for recall which is otherwise proper, an elector may
apply to the District Court for a writ of mandamus. On the
other hand, if a determination is made that any accepted and
filed petition is not sufficient "the court may enjoin
certification, printing, or recall election." The statute is
clear. When, as here, the recall petition is deficient, the
remedy is by injunction.
     For the reasons foregoing, we held on October 14, 1988,
and now repeat that the decision of the District Court
denying relief to petitioner Thomas Sheehy is reversed; and
the language of our order restraining and enjoining any
further proceedings by the County Clerk and Recorder as to
the said recall petition affecting Thomas Sheehy is hereby
confirmed and continued.       Let remittitur issue forthwith.



We Concur:
                                G             e
                                           Justice        k
#E   Justices
