IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

RONALD J. KOTAR, BRIAN C. ROAT, 

JAMES E. MOORE, 11, and TED J. DAY, 

Plaintiffs and Respondents, 

vs. 

TONY ZUPAN and BARBARA THORMAHLEN, 

PAULA ROWLEY, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellants : 

Lynaugh, Fitzgerald & Hingle, Billings, Montana 

William P. Fitzgerald argued, Billings, Montana 

Alan Chase, County Attorney, Red Lodge, Montana 

For Respondents: 

Ayers and Alterowitz, Red Lodge, Montana 

Arthur W. Ayers, Jr. argued, Red Lodge, Montana 

Submitted: November 17, 1982 

Decided: February 10, 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: 

Chief 

PA--& 

Justice 

~*WW& 

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 paxare 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. 

J Justice fl