No. 82-28 IN THE SUPREMECOURTOF THE STATEOF MONTANA 1982

STATEOF MONTANA ex rel. ROBERT PALMER and GERNTINECONRAD, Petitionersand Respondents,

VS

# . FERN HART, et al., Respondents and Appellants.

Appeal from: DistrictCourt of the Fourth JudicialDistrict, Inand for the County ofMissoula HonorableH. William Coder, Judqepresidinq. Counsel of Record: ForAppellants: RobertL. Deschamps, 111,County Attorney, argued,

Missoula,Montana Nancy 

### K. Moe argued, Missoula,Montana ForRespondents: CummingsLawFirm,Missoula, Montana EdwardA. Cumminqs argued, Missoula,Montana Moses Law Firm,Billinss,Montana CharlesF. Moses argued, Billings,Montana

Submitted: September 10, 1982 Decided: December 22, 1982 Filed: 

## DEC2

## 21Y8i!

### 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 certifiedby the elections supervisor on January 19, 1981. The petitions were then circulated and 675circulation sheets for each petition were filed with the elections supervisor in several groups. The first 100pages of each petition were filed on March 20, 1981. Pages 101-200 were filed on March 27, 1981. Pages 201-300were filed onApril 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 thetwo petitions, the following procedures were used to chec~ petition signatures: (1)each signaturewas 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)fivesignatures 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 forpossible duplications, forhusbands signingfor wives or wives signing for husbands, and for any other questionable signatures. Using thismethod, eightduplicate signatures and three fraudulent signatures were disqualified. Approximately 2200 signatureswere actuallycompared. On April 16, 1981, the elections supervisor certified tothe county clerk and recorder that 8,526 signatureswere valid for the purpose of a recall petition against Conrad and 8,606 signatures were valid for the recall petition againstPalmer. Conrad and Palmer filed separatepetitionsinDistrict 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 sittingwithout a jury on August 31, 1981. The factsgiving rise tothelitigationwere stipulated toby counsel for the parties. 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 recallpetition 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 recallpetition, and that the recall petitions were held for verification for longer than the fifteendayspermitted 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. TheMontana RecallAct, section 2-16-601 et seq., MCA, was enacted as Initiative 73 and was approved by the voters oi the state onNovember 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 tojudicial interpretation of legislation enacted by the legislature apply to the interpretation of initiatives. Krivec, 632 P.2d at710. 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), 172So.2d 528; Stateex rel. Baggettv. Long (La.App. 1952), 60 So.261 96. Even where the recall right stems from a constitutionalprovision, a failure to substantially comply with the statutory requirements that govern the process is fatal tothe recall. Fiannaca 

### v. Gill (1962), 78 Nev. 337, 372 P.2d 683, 687. Where the basis for the procedure is purely statutory, ashere, failuretocomply with therecall statutesis fatal toany recall attempt. Gibson v. Campbell (1925), 136Wash. 467, 241P. 21, 23; Stateex rel. McCauley

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

# ., Platt v. Ross (1933), 112Fla. 502, 150 So. 716. The legislaturemay 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; Petitionof Smith (1971), 114N.J.Super. 421, 276 A.2d 868, 876. Finally, to liberally construe the statutesgoverning

### 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 signedpetitions 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: nomore than one officer may be named in a recall petition; nopetition may be filed against

an officer until he has held the office for two months; no recall petition may be filed against an officerwho 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 thathe isnot 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 tendays 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 thepresentment of the samplepetitions 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 electionprocess. 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), 108Mont. 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 requirementsand 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 inTitle 13, Chapter 27, MCA, for theverification 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 insuch countywith registration signatures on filein such clerk's office and, if satisfiedthe signatures aregenuine, certify that fact." Section2-16-Q20(1), MCA. Wemust construe the statutefrom theplainmeaning of thewords used. Statev. 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. DistrictCourt (1938), 106Mont. 272, 277, 76 P.2d 634, 637. The statutory language does not grant discretion in thematter tothe clerk. The appellants did not meet the statutorymandate by applying the statutoryprocedure. ThisCourtmust ascertain and declarethesubstanceof the statute it construes. Wemay not insertwhat 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 signatureson thepetitions tobe 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 itwas doing. Dept. of Revenue

### v. BurlingtonNorthern, Inc. (1976), 169Mont. 202, 211, 545

### P.2d 1083, 1088. The District Court

was correct inholding the signature comparison process here

was in substantial variance with the statutory requirements dnd was therefore fatal to the recallpetition. 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 fifteendays." No setof petition sheetswas 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 oneof the individual circulation sheets. The language in section 2-16-620(3), requiring that "any petition orany partof it" (emphasisadded) makes thisclear. The statute dealing with the form of the circulation sheets, section 2-16-617, MCA, alsoclearlydifferentiatesthetwo. 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? todo so when thepetition is legally sufficient, the Montana Recall Act provides a writ of mandamus as a remedy to the petitioners. Section2-16-615, MCA. The District Court was correct inholding thatPalmer and Conrad were entitled to relief in the form of a permanent injunction. See State ex rel. Landis v. Tedder, supra.Affirmed. 

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# "%&llh~a~ Chief Justice~ud~e,- sittinginpiace of Mr. JusticeJohn C. Sheehy