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 

Filed: 

DEC 2 2 1Y8i! 
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 supervisor 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 petitions, the following procedures were used to chec~ 

petition signatures : ( 1) each signature was checked against 

a computer listing of registered voters; (2) if there was 

any question concerning a signature's form or the listed 

address for the elector, that signature was compared with 

the original registration card on file; (3) five signatures 

out of twenty on each page were compared with the original 

registration cards and those cards were flagged; if one 

signature did not match, all signatures on the page were 

compared with those on file; (4) all petition pages were 

reviewed for possible duplications, for husbands signing for 

wives or wives signing for husbands, and for any other 

questionable signatures. Using this method, eight duplicate 

signatures and three fraudulent signatures were disqualified. Approximately 2200 signatures were actually compared. 

On April 16, 1981, the elections supervisor certified 

to the county clerk and recorder that 8,526 signatures were 

valid for the purpose of a recall petition against Conrad 

and 8,606 signatures were valid for the recall petition 

against Palmer. 

Conrad and Palmer filed separate petitions in District 

Court seeking declaratory and equitable relief to prevent 

appellants from conducting a recall election. Temporary 

restraining orders were issued in both cases. The causes 

were consolidated and were tried before the District Court 

sitting without a jury on August 31, 1981. The facts giving 

rise to the litigation were stipulated to by counsel for the 

par ties. 

On September 9, 1981, the District Court entered its 

findings of fact, conclusions of law, judgment and order 
permanently enjoining the elections supervisor and the 

county clerk and recorder from proceeding with recall elections. 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 petition; 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 substance 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), 151 Hont. 76, 80, 438 P.2d 660, 662. Where the 

language of the statute is plain, unambiguous, direct, and 

certain, the statute speaks for itself. State v. Roberts 

(1981) I Mont . , 633 P.2d 1214, 1217, 38 St.Rep. 

1551, 1554. In short, it is this Court's duty to construe 

the law as it finds it. In the Matter of the Estate of 

Baier (1977), 173 Mont. 396, 401, 567 P.2d 943, 946. The 

same rules applicable to judicial interpretation of legislation enacted by the legislature apply to the interpretation of initiatives. Krivec, 632 P.2d at 710. 

The recall process has been characterized as a 

special, extraordinary, and unusual proceeding, State ex 

rel. Landis v. Tedder (1932), 106 Fla. 140, 143 So. 148, 

149, and as a harsh remedy, Cloud v. Dyess (Lz.App. 1965), 

172 So.2d 528; State ex rel. Baggett v. Long (La.App. 1952), 

60 So.261 96. Even where the recall right stems from a 

constitutional provision, a failure to substantially comply 

with the statutory requirements that govern the process is 

fatal to the recall. Fiannaca v. Gill (1962), 78 Nev. 337, 

372 P.2d 683, 687. Where the basis for the procedure is 

purely statutory, as here, failure to comply with the recall 

statutes is fatal to any recall attempt. Gibson v. Campbell 

(1925), 136 Wash. 467, 241 P. 21, 23; State ex rel. McCauley 

v. Gilliam (1914), 81 Wash. 186, 142 P. 470; cf ., Platt v. 

Ross (1933), 112 Fla. 502, 150 So. 716. The legislature may 

impose rational restraints upon the exercise of the statutory right to recall. Eisenberg v. Committee to Recall 

Levin (1980), 175 N.J.Super. 115, 417 A.2d 1067, 1070; 

Petition of Smith (1971), 114 N.J.Super. 421, 276 A.2d 868, 

876. Finally, to liberally construe the statutes 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 limitation 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 supporting affidavits were submitted to the elections supervisor 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 petitlons 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 swearingin. This clearly violates the two-month "cooling-off" 

period provided as a specific limitation on the recall elections. 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 "submission" 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 characterized 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 conclusion 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 established in Title 13, Chapter 27, MCA, for the verification of 

signatures on petitions for initiatives, referendums, constitutional conventions and constitutional amendment is 

within the discretion of the certifying officer. Again, we 

disagree. 

'The Montana Recall Act requires the county clerk to 

"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." 

Section 2-16-Q20(1), MCA. We must construe the statute from 

the plain meaning of the words used. State v. Weese (1980), 

- Mont. , 616 P.2d 371, 373, 37 St.Rep. 1620, 1622. 

'The language of this statute, using "shall" rather than 

"may," ~nandates that the signatures be compared. State ex 

rel. McCabe v. District Court (1938), 106 Mont. 272, 277, 76 

P.2d 634, 637. The statutory language does not grant discretion in the matter to the clerk. The appellants did not 

meet the statutory mandate by applying the statutory procedure. 

This Court must ascertain and declare the substance of 

the statute it construes. We may not insert what has been 

omitted. Section 1-2-101, MCA. Chennault v. Sager (1980), 

- Mont . , 610 P.2d 173, 176, 37 St.Kep. 857, 861. 

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, supra. 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 

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 or any 

part of it" (emphasis added) makes this clear. The statute 

dealing with the form of the circulation sheets, section 

2-16-617, MCA, also clearly differentiates the two. 

Appellants also argue that the only purpose of the 

fifteen-day limit is to ensure that the verifying official 

does not delay the process and bar an election by "sitting 

forever" on petitions. This argument, too, fails. Should 

the official charged with filing a petition refus? to do so 

when the petition is legally sufficient, the Montana Recall 

Act provides a writ of mandamus as a remedy to the petitioners. Section 2-16-615, MCA. 

The District Court was correct in holding that Palmer 

and Conrad were entitled to relief in the form of a 

permanent injunction. See State ex rel. Landis v. Tedder, 

supra. 

Affirmed. 

34 Pa "%&llh~a~ 

Chief Justice 
~ud~e,- sitting in piace of 

Mr. Justice John C. Sheehy