                  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
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