No. 81-402 

IN THE SUPRElvLE COURT OF THE STATE OF MONTANA 

1981 

DAVE STEADMAN and RUDY BOEHM, 

Petitioners and Appellants, 

DAVID L. HALLAND, Election Administrator, 

County of Yellowstone, State of Montana, 

Respondents and Respondents, 

and 

RICHARD SHAFFER, 

Intervenor. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Joseph B.Gary, Judge presiding. 

Counsel of Record: 

For Appellants: 

David Steadman, Pro Se, Billlings, Montana 

Rudy Boehm, Pro Se, Billings, Montana 

For Respondents: 

Harold Hanser, County Attorney, Billings, Montana 

Mases Law Firm, Billings, Montana 

Submitted on Briefs: November 25, 1981 

Decided: February 22, 1982 

Filed: FEB 2 2 198z 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Petitioners, Steadman and Boehm, appeal from a denial 

of their petition for writ of mandamus in the Thirteenth 

Judicial District Court, Yellowstone County, wherein the 

District Court upheld respondent Halland in rejecting petitioners' recall petition. We affirm the District Court. 

The following issues are presented to this Court for 

review: 

(1) Did the District Court err in denying petitioners' 

petition for writ of mandamus? 

SUB-ISSUES: 

A. Did the recall petition alleging official misconduct 

meet statutory requirements as to form? 

B. Did the respondent properly reject the recall 

petition on the grounds of double jeopardy? 

C. Is Mandamus the proper remedy for petitioners to 

seek in challenging respondent's rejection of 

their recall petition? 

(2) Did the District Court err in allowing Richard 

Shaf f er to intervene? 

This appeal arises from an attempt by petitioners to 

recall Yellowstone County Sheriff Richard Shaffer in accordance 

with the provisions of the Montana Recall Act section 2-16- 

601, - et 5.. MCA. Petitioners allege no injury to themselves 

but bring the action as residents and taxpayers of Yellowstone 

County. 

Petitioners allege the following: On November 7, 

1980, Shaffer was in Big Timber, which is in Sweet Grass 

County, driving an official Yellowstone County vehicle; while 

there, Shaffer and a female companion were ordered off a 
farmer's field and shortly afterward they passed the farmer's 

vehicle, fishtailing and spraying gravel, with the Yellowstone 

County vehicle; a short time later, when the farmer approached 

Shaffer in a Big Timber Bar and questioned Shaffer's driving, 

Shaffer and the woman left the bar; Shaffer returned alone, 

pulled his badge and warned the farmer to be especially 

careful in Yellowstone County. The farmer lodged a complaint 

against Shaffer with the Sweet Grass County Sheriff's office, 

as a result of which Shaffer was charged with intimidation 

(a felony) and reckless driving and disorderly conduct (both 

misdemeanors). The intimidation charge was subsequently 

dismissed, and Shaffer forfeited a bond as to the misdemeanor 

charges. He was not tried for or convicted of any of the 

offenses. 

On January 26, 1981, petitioners presented the Yellowstone 

County Election Administrator (Halland) with a petition for 

Shaffer's recall for Halland to check against statutory 

requirements pursuant to section 2-16-616, 617, MCA. The 

petition was rejected by Halland on January 30, 1981. An 

amended petition, submitted February 2, 1981, was also 

rejected by Halland, on February 4, 1981. Halland's reason 

for rejecting the petitions was that the Yellowstone County 

Attorney, advised by the State Attorney General's Office, 

believed that to base the recall petition upon official 

misconduct, after Shaffer had been charged with misdemeanor 

offenses because of that conduct, would place Shaffer in 

double jeopardy. Halland advised petitioners that they 

were free to seek a writ of mandamus in the District Court 

compelling Halland to file the recall petition if the ~istrict 

Court determined the petition to be sufficient. 
On February 17, 1981, petitioners applied to the District 

Court for a writ of mandate to compel Halland to accept the 

recall petition. They alleged that Halland's rejection of 

their petition was based upon his consideration of substance 

and legality rather than form and was improper under section 

2-16-617, MCA, which limits the function of the Election 

Administrator to a determination whether the petition's form 

satisfies statutory requirements. Petitioners claimed that 

the petition met statutory requirements as to form, and 

Halland's rejection of it amounted to the refusal of "an 

absolute, clear and legal duty." 

On February 19, 1981, Judge Speare ordered Halland to 

"approve the Petition for recall of Yellowstone County 

Sheriff Richard Shaffer . . . or, that in default thereof, 

he show cause . . . why he has not done so by the return of 

said Writ." That same day, the judges of the Thirteenth 

Judicial District disqualified themselves and called in 

Eighteenth Judicial District Judge Gary, who accepted jurisdiction 

on February 23, 1981. The date for the show cause hearing 

was continued to March 16, 1981. 

On March 16, 1981, over petitioners' objections, Richard 

Shaffer was permitted to intervene in the action and file 

his answer, wherein he argued that the recall petition was 

deficient under the provisions of the Montana Recall Act and 

moved for its dismissal. The show cause hearing was held 

March 16, 1981; petitioners appeared pro -- se without counsel 

and declined to offer testimony, preferring to stand upon 

their petition. Neither Shaffer, nor Halland, presented 

testimony. Memoranda were subsequently submitted by all 

parties, and on July 24, 1981, the District Court entered 

its findings of fact, conclusions of law, and order denying 
petitioners' petition for writ of mandamus and dismissing 

the action. Petitioners appeal. 

Petitioners argue that the District Court erred in 

denying their petition for writ of mandamus and raise a 

number of sub-issues, the resolution of one of which is 

determinative of the larger issue. 

A. The first and most important, indeed the determinative sub-issue in this case, is whether the recall petitions 

did in fact satisfy the statutory requirements as to form. 

Section 2-16-616, MCA, requires that the recall petition 

contain (1) a warning against the misdemeanor offense of 

signing more than once, or signing at all if not qualified; 

and (2) the petition itself, which addresses the appropriate 

filing officer, states the name and position of the official 

against whom it is directed, sets out "a general statement 

-- of the reasons for recall ----- in not more than 200 words," and 

establishes the nature of a signer's certification; and (3) 

numbered lines for signature following the heading. 

"Each separate sheet -- of the petition shall contain the 

heading and reasons -- for the proposed recall - as described 

above." Section 2-16-618, MCA, provides: "The forms prescribed 

in this part are not mandatory, and if substantially followed, 

the petition shall be sufficient, notwithstanding clerical 

and merely technical errors." Section 2-16-617(3), MCA, 

provides: "Before a petition may be circulated for signatures, 

a sample circulation sheet must be submitted to the [filing] 

officer . . . [who] shall review the petition for sufficiency 

--- as to form and approve or reject the form of the petition, 

stating his reasons therefor, within 1 week of receiving the 

sheet. " 
The recall petition submitted to Halland by petitioners 

contained the following heading: 

"WARNING 

"(wording identical to that required by statute; no problem with acceptability.) 

"RECALL PETITION 

"To the County Election Administrator: We, 

the undersigned qualified electors of the 

County of Yellowstone respectfully petition 

that an election be held as provided by law 

on the question of whether Richard E. Shaffer, 

holding the office of Yellowstone County 

Sheriff, should be recalled -- for the following reason: sheriff Shaffer acted - 

in a - manner to brina discredit to himself and 

the Department &by OFFICIALMISCONDUCT stemming --- from an incident in - Sweet Grass County 

- on November - 7, - 1980. (Underscoring added.) 

". . . (Certification paragraph is acceptable; there is no dispute in that regard.) 

". . . (Signature heading and lines are not 

challenged. ) " 

The proposed recall petition was accompanied by a notarized 

statement of "Reasons for Desired Recall," signed by petitioners. 

The District Court's findings and conclusions were 

substantially that: 

(1) The recall petition was defective in that it 

"stated mere conclusions of alleged misconduct," and it 

failed to allege facts from which the Election Administrator 

could determine whether official misconduct had occurred and 

from which Shaffer could meet those allegations upon a 

recall ballot. 

(2) Even assuming the statement accompanying the 

petition and the newspaper articles accurately set forth the 

sheriff's conduct, that is insufficient to meet the standards 

of official misconduct as set forth in the Montana Criminal 

Codes. 
In its accompanying memorandum, the District Court 

stated: "In the Petition for Writ of Mandamus, the defects 

in the petition for recall are not corrected so therefore 

this opinion could stop at this point and dismiss the Petition 

for Writ of Mandamus, and perhaps I should." (The opinion 

went on to address other issues.) 

Petitioners now argue that the District Court improperly 

considered reasons for rejecting the recall petition other 

than the reason set forth by Halland (double jeopardy). 

Petitioners also maintain that both Halland and the District 

Court improperly assessed the recall petition as to legal or 

substantive sufficiency rather than merely sufficiency of 

form as required by section 2-16-617(3), MCA. 

We disagree. The District Court properly considered 

the sufficiency of the form of the recall petition. Section 

2-16-617(3), MCA, neither limits the District Court's consideration of the sufficiency of the petition to defects found by 

the filing officer, nor prohibits another party from intervening with its own objections to the form of the recall 

petition. Section 2-16-617(3), MCA, merely states that the 

filing officer must state his reasons for rejecting the 

form of a petition within 1 week. That was done. 

This Court has held many times that when there is no 

testimony and this Court is limited to the record, it is 

free to make its own examination of the entire case and to 

make a determination in accordance with its findings. See 

In re Estate of Jensen (1969), 152 Mont. 495, 500, 452 P.2d 

418, 421; Kostbade v. Metier (1967), 150 Mont. 139, 141, 432 

P.2d 382, 384. We have also held that if the result reached 

by the trial court be correct, it will be upheld regardless 
of the reasons given for the conclusion. Spaeth v. Emmett 

(1963), 142 Mont. 231, 235, 383 P.2d 812, 814-815; Johnstone 

v. Sanborn (1960), 138 Mont. 467, 471, 358 P.2d 399, 401. 

The logic of this policy is peculiarly applicable to the 

case at bar, because the initial review of recall petitions 

is intended to save the public and government officials 

the time and expense of circulating and responding to a 

petition which is fatally defective. The Legislative 

Council's Analysis of Amendments to Initiative 73 (The 

Montana Recall and Advisory Act, enacted by Montana voters 

November 2, 1976), which was incorporated into the minutes 

of the House Judiciary Committee on February 23, 1977, 

states at page A-2: 

"New language is included in subsection (3) 

to provide that the petition form must be 

approved before it is circulated. A provision of this nature saves trouble for both 

petitioners and filing officers when a petition is turned in. If the form is approved 

in advance, petitioners will not be put in 

a position of gathering signatures on an 

improper form and then having their petition disqualified." 

It would be both wasteful and useless for the District Court 

to return an obviously unacceptable recall petition to the 

filing officer for reconsideration just because his reasons 

for rejecting it may have been improper. Here, the record 

revealed to the District Court, as it does to this Court, 

that the recall petition submitted to Halland was fatally 

defective, and regardless of his reasons for rejecting it, 

Halland's decision to do so was correct. 

A review of the relevant statutes and a reference to 

the Attorney General's opinion relied upon by petitioners 

makes it clear to this Court that the defects in the petition 

found by Halland and the District Court are defects in 

form. Section 2-16-616(1), MCA, "Form of recall petition," 
requires that each page of the petition be headed by, among 

other things, a general statement of reasons for recall, of 

no more than 200 words. Section 2-16-617(4) requires that 

when a recall petition is submitted to the filing officer, 

it "must be accompanied by a written statement containing 

the reasons for the desired recall - as stated on the -- petition." 

The Attorney General has stated: 

"The section [2-16-617(4)] requires that both 

the petition submitted for approval and the 

statement attached to the petition explain 

the basis for the recall. As the grounds for 

the desired recall specifically constitute 

part of the form of the petition, the Secretary of State is empowered to reject the petition unless it meets all of the statutory requirements." 38 Op. Att. Gen. 41 (1979). 

We agree that the statement of grounds for recall to be 

included in the petition is "part of the form of the petition" and find that the filing officer not only is "empowered 

to" but is required to reject the petition when it does not 

comply with statutory requirements. Clearly Halland and the 

District Court on review were obliged to consider whether 

the statement of reasons for recall met statutory requirements. 

The District Court correctly considered only the signature 

page of the petition, ignoring the attached statement of 

"Reasons for Desired Recall," which was obviously appended 

only in compliance with section 2-16-617(4), MCA. Section 

2-16-616, MCA, limits the statement of reasons for recall in 

the petition to 200 words and requires that it be contained 

on "each separate sheet of the recall petition." Here, the 

accompanying statement is on separate pages and is well over 

400 words long. This is not the substantial compliance with 

statutory requirements, which would render the statement of 

reasons acceptable. An official whose recall will be determined 
by election is allowed only 200 words on the ballot to give 

reasons why he should not be recalled. Petitioners should 

have briefly stated the alleged acts of misconduct in the 

body of the recall petition. The sufficiency of form of the 

recall petition, then, must be determined without recourse 

to the accompanying statement of "Reasons for Desired Recall." 

Section 2-16-616(1), MCA, requires that the recall 

petition contain "a general statement of the reasons for 

recall. . ." Petitioners' recall petition states only that 

"Sheriff Shaffer acted in a manner to bring discredit to 

himself and the Department by OFFICIAL MISCONDUCT stemming 

from an incident in Sweet Grass County on November 7, 1980." 

Such a statement is deficient because it does not acquaint 

the public, whose signatures are requested, with the alleged 

acts constituting misconduct, nor does it permit Sheriff 

Shaffer to respond and defend himself adequately against the 

allegation of misconduct in the event that an election is 

required. The "general statement" required by section 2-16- 

616(1), MCA, demands more specificity than this. We note 

with approval the standard set forth in Bocek v. Bayley 

(1973), 81 Wash. 2d 831, 505 P.2d 814, 817: 

". . . [Rlecall charges are sufficiently specific if they are definite enough to allow the 

charged official to meet them before the tribunal of the people. " 

We point out also that page C-3 of the original text of 

Initiative 73, 1976, contains an explanation of the requirement that a statement of reasons for recall be included on 

each circulation sheet: 

"Such a statement is solely for information 

of the electors and set forth any reason 

causing the dissatisfaction with the public 

official and may be political rather than 

legal in nature." 
clearly a statement of reasons must serve both purposes. 

Otherwise discontented constituents could initiate a circulation petition by alleging misbehavior in terms so general 

that the object of the recall effort would be incapable of 

defending himself, and some electors would sign the recall 

petition with no idea of what words or acts of the official 

might have precipitated the recall effort. 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. 

A discussion of the remaining issues is not appropriate 

here. The above determination is dispositive of this action. 

We are aware that there remain ambiguous provisions in the 

Montana Recall Act and that legitimate questions may be 

raised regarding double jeopardy and intervention in reference to those provisions. But this is not the case for 

considering such questions. The recall petition was fatally 

defective and the petition for writ of mandamus was properly 

denied. 

Petitioners appeared -- pro se, and we are traditionally 

inclined to treat parties more gently who appear without 

counsel. We must note, however, the time and expense to all 

parties, and the stress placed upon the court system, by 

this appeal without the help of competent counsel. Qualified counsel would have realized that the recall petition 

was fatally defective and that the half-dozen extraneous 

issues raised by petitioners were not determinative. his 
would have saved considerable time and expense by eliminating 

an unnecessary appeal. 

A£ firmed.