No. 88-489 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THOMAS SHEEHY, 

Petitioner and Appellant, 

-vsJENNY LEE FERDA, Clerk & Recorder, 

Chouteau County, Montana, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Chouteau, 

The Honorable Henry I,oble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas J. Wold argued, Polson, Montana 

For Respondent: 

Tracy Axelberg argued; ~ardine, Stephenson, Blewett 

& Weaver, Great Falls, Montana 

For Amicus Curiae: 

I- Donald A Ranstrom, President, Montana County Attorneys 

cn c- - Assoc., Chinook, Montana 

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. - . . Submitted: October 14, 1988 

Decided: December 2, 1988 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The author of this Opinion is not related to Thomas 

Sheehy, the County Attorney of Chouteau County, by blood or 

marriage and no personal acquaintanceship exists. If a blood 

or marriage relationship between the author and Thomas Sheehy 

existed, this author would be precluded from any 

participation in the cause by reason of our rule and statute 

on disqualification, adopted on September 13, 1988 (see, 

Advance Sheet, Vol. 42, 759 P.2d No. 3, S 3-1-803(2), MCA, as 

follows) : 

Any justice . . . must not sit or act in any action 

or proceeding: 

(2) When he is related to either party or any 

attorney or member of a firm of attorneys for a 

party by consanguinity or affinity within the 

fourth degree, computed according to the rules of 

law. 

Therefore, the author is not disqualified in this case. 

Thomas J. Sheehy is the duly elected, qualified and 

acting county attorney of Chouteau County, Montana. He filed 

an action in the District Court, Twelfth Judicial District, 

Chouteau County, for a writ of prohibition, injunction or 

declaratory relief to stop the submission to the electors at 

the November 8 general election the question of his recall 

from office. Sheehy's petition was denied on September 27, 

1988, by the District Court. He appealed to this Court, and 

after oral. argument in the cause, we entered an Order on 

October 14, 1988, restraining and enjoining the respondent 

Jenny Lee Ferda, as County Clerk and Recorder of Chouteau 

County, Montana, and as the Election Administrator of that 
county, her agents, employees, appointees, and all persons 

acting by or through her from submitting the proposed recall 

of Thomas Sheehy to the electors of Chouteau County at the 

general election to be held on November 8, 1988, to the 

extent that the same had not then been submitted; and from 

counting the results of any vote on said recall; and from 

canvassing or entering upon any records of county or state 

any purported results of said recall election. The order was 

issued for reasons of expediency, and this Opinion is 

intended to supplement and support the issuance of that 

Order. 

It should be understood that Jenny Lee Ferda is the 

nominal defendant in this case by virtue of her being the 

incumbent Chouteau County Clerk and Recorder and Election 

Administrator. She has no official interest in the outcome 

of this action, except as to the impact it may have upon her 

duties of office. 

The petition to recall Sheehy from his office as county 

attorney is based upon alleged incompetence in office. The 

principal issue is whether the allegations of fact upon which 

the claim of incompetence is based are patently and 

demonstrably false. Petitioner contends that the allegations 

of fact are false, and that he is entitled to a writ of 

prohibition against the recall election. We proceed to 

examine the issues of fact set forth in the recall petition 

to determine their patent truth or falsity. Depending upon 

whether the allegations are patently true or false, we can 

then proceed to determine the form that relief in the cause 

should take, if any. 

The Montana Recall Act was adopted as an initiative 

measure by the electors at the general election on November 

2, 1976. Parts of the Act were amended by the legislature in 
1979. Insofar as pertinent to this case, the grounds for 

recall are set forth in 5 2-16-603, MCA. It provides: 

(1) Every person holding a public office of the 

state or any of its political subdivisions, either 

by election or appointment, is subject to recall 

from such office. 

(3) Physical or mental lack of fitness, 

incompetence, violation of his oath of office, 

official misconduct, or conviction of a felony 

offense enumerated in Title 45 is the only basis 

for recall. No person may be recalled for 

performing a mandatory duty of the office he holds 

or for not performing any act that, if performed, 

would subject him to prosecution for official 

misconduct. 

It is the law that when a petition for recall of an 

elected public officer is circulated, the petition form must 

be accompanied by a written statement containing the reasons 

for the desired recall as stated in the petition. In 

addition, the truth of purported facts contained in the 

statement must be sworn to by at least one of the petitioners 

before a person authorized to administer oaths. Section 

2-16-617 (4) , MCA. 

In this case, the petition was accompanied by an 

affidavit of W. F. Gertson, M.D., Chouteau County Health 

Officer (it is not clear whether Dr. Gertson signed the 

petition as county health officer, or used the term to 

describe himself as the signator). The affidavit of Dr. 

Gertson on which the petition is based, recited: 

To the Honorable Jenny Lee Ferda, County Election 

Administrator of Chouteau County. 

I believe Thomas Sheehy, Chouteau County Attorney, 

should be recalled because of: 

Incompetence in the prosecution of the Richard 

Kurth family case. 
Growing marijuana is a major crime and it is common 

judicial practice to punish by arrest, jail, bail 

if posted, and recommendation of a fine or prison 

or both. 

Plea Bargaining for the purpose of no prison term 

for some, short terms for others, no fines for 

anyone, and altered court dates that kept the 

public from attending is not in the best interest 

of justice. 

This type of prosecution will only encourage more 

drug traffic, and other crimes in Chouteau County. 

If the grower gets approximately 1/3 of the 

$5,000,000. street value, and it takes 58 days to 

mature a crop of marijuana; it would earn 

$1,650,000. a crop; if grown since documented in 

1986, it means $18,777,000.00. No money for 

fines?? 

This prosecution from the beginning was unfair to 

our county, state, and federal law enforcement 

people. For this magnitude of a crime we needed 

federal attorneys to prosecute the case. The 

County Attorney received an oral and written 

request for such. 

I swear that the reasons for this recall contained 

in this petition are to the best of my knowledge 

true. 

/s/ W. F. Gertson, M.D. 

Chouteau County Health 

Officer 

Subscribed and sworn before me a Notary Public for 

the State of Montana 

Dated this 6th day of May, 1988 

(SEAL) 

/s/ Debra McSweeney 

Notary Public 

The stated grounds for the recall petition are 

incompetence. Under 2-16-617, MCA, the petition form had 

to be accompanied by a written statement containing the 

reasons for t.he desired recall. The affidavit supporting the 
petition is defective. Dr. Gertson swears not to facts 

within his knowledge, but to the "best" of his knowledge. 

An affidavit is a written declaration, under oath, made 

without notice to the adverse party. Section 26-1-1001, MCA. 

While courts will uphold affidavits based upon the "best of 

the affiants knowledge," or upon information and belief in 

proper circumstances, here the intent of the legislature is 

clear: "the truth of purported facts contained in the 

[recall] statement must be sworn to by at least one of the 

petitioners" for recall. The allegations must be sworn to 

from the knowledge of the affiant and not from a lesser basis 

so that the electors, in voting on the recall petition can 

rely on the truth of the grounds set forth, as in this case, 

for the claimed incompetence. In People v. Lennox (1978), 

405 N.Y.S.2d 581, it was held that the test of a statement of 

facts under oath as to its sufficiency is whether it has been 

drawn in such a manner that it might be the basis of a charge 

of perjury if any material allegation contained therein is 

false, as the affiant is held to strict accountability for 

the truth and accuracy of the contents of his affidavit. As 

long ago as 1923, Montana adopted a similar test holding that 

"one of the rules in testing the sufficiency of an affidavit 

to a mechanic's lien is whether perjury is assignable upon 

it." Gregg v. Sigurdson, et al. (1923), 67 Mont. 272, 277, 

215 P. 662, 663. 

In the light of the direction of the legislature that 

the "truth of the purported facts" should be sworn to by one 

of the petitioners an affidavit based only on the "best" of 

the affiant's knowledge is deficient. 

The importance of a proper affidavit in this case is 

magnified by the patently false statements of fact or 

misconceptions contained in the affidavit on which the 

petition for recall is based. An added danger in this case 
is that since Dr. Gertson signed the affidavit as the county 

health officer, the uninitiated elector might give credence 

to the statements on the assumption that a county officer 

knew whereof he spoke. 

The Gertson affidavit recites that ". . . it is common 

judicial practice to punish by arrest, jail, bail if posted, 

and recommendation of a fine or prison or both." First, 

Sheehy, as a prosecutor, has no judicial function to perform. 

Secondly, it is not common judicial practice to punish a 

person arrested for crime by jail or providing bail. The 

purposes of commitment to jail or admission to bail do not 

presume the guilt or innocence of the charged defendant. To 

punish by means of bail or commitment to jail before a 

defendant' s conviction would deprive him of his presumption 

of innocence and the right to confront witnesses before his 

conviction. There is no such "common judicial practice" and 

the statement is patently false. 

The statement that "Plea Bargaining . . . is - not in the 

best interest of justice" completely belies the fact that 

plea bargaining is a recognized part of federal and state 

criminal procedure. One may disagree with the concept of 

plea bargaining. Many judges and prosecutors do not agree 

with plea bargaining. It is, however, recognized as a tool 

that makes possible a quicker administration of burgeoning 

criminal cases. As far as we are aware, every judge in the 

state system in this state makes it clear that he or she is 

not bound by any plea bargain proposed to him or her in the 

disposition of criminal causes. Rule 410 of the Federal 

Rules of Evidence expressly recognizes that plea bargains are 

ongoing, and therefore no plea, offer to plea, plea 

discussions or related statements are admissible in any civil 

or criminal proceedings under the Federal Rules where the 

statements are made in the course of plea discussions between 
an attorney and the prosecuting officer which do not result 

in a plea of guilty or which result in a plea of guilty later 

withdrawn. The evident intent of Rule 410 is to protect the 

plea bargain process. 

Rule 410 of the Montana Rules of Evidence differs from 

the federal provision but the result is the same: evidence 

of a plea of guilty, later withdrawn, or statements made in 

connection with any offer to plead guilty to the crime 

charged or any other crime is not admissible in any civil or 

criminal action or proceeding against the party who made the 

plea or offer. What these rules of evidence tell us is that 

plea bargaining is a fact of life and that to encourage plea 

bargaining, statements made in connection therewith are not 

admissible in any civil or criminal action. Whatever 

arguments may exist for or against plea bargains, Thomas 

Sheehy did not invent the process and his right to hold 

office should not depend upon the existence or the propriety 

of plea bargaining. Here, the plea bargain for which Sheehy 

contended and got acceptance, both from the Attorney 

General's office and from the federal authorities, was more 

harsh than the sentences and fines imposed by the district 

judge in disposing of the defendants, whose cases became the 

subject of the recall petition. Three county attorneys 

testified that Sheehy ' s plea bargain was good prosecut-orial 

practice. 

The further statement in the petition that this type of 

prosecution will only encourage more drug traffic and other 

crimes in Chouteau County is purely conclusionary and is not 

a statement of fact which could be within the knowledge of 

Dr. Gertson. Again the implication that Sheehy juggled court 

appearance dates to frustrate public appearances is false. 

The statements in the affidavit about the gross receipts 

of the marijuana are terribly exaggerated. The Attorney 
General's investigation concluded that the defendant's gross 

receipts were approximately $400,000 and not the amounts set 

forth in the recall petition. Again, Dr. Gertson's position 

as county health officer would tend to mislead the 

uninitiated elector as to the exactitude of the fiqures set 

out in the recall petition. 

The allegation that the prosecution of the defendants 

from the beginning was unfair to the county, state and 

federal government and that federal attorneys were needed to 

prosecute the case again is incorrect. The United States 

Attorney testified that he was elated with the prosecution of 

this case and "could not have done better himself ." Sheehy 

had no power to call in federal attorneys to prosecute this 

case since the charges were not made in the federal courts. 

We determine that the allegations in the recall petition 

are patently false, misleading, and based on misconception. 

Sheehy's competence or incompetence cannot be measured by 

those statements of purported fact. As a matter of law, the 

recall petition is insufficient. The Montana Recall Act 

requires that the charge of incompetence, when it is used for 

recall, be based on the "truth of purported facts contained 

in the statement" sworn to by a petitioner. This recall 

petition falls far short of that legal requirement. 

We are fully agreed on this Court that the right of 

recall of a public officer is an important part of the rights 

of citizenship in Montana. In a proper case, we would 

protect that right of recall, and leave it to the voters to 

determine whether the officerholder should continue in 

office. The officeholder, however, is entitled to at least a 

level playing field; if he is to be removed from office, his 

removal must be based on true statements which demonstrate 

his incompetence, or any other grounds for which recall may 

be sought. 
We held in Steadman v. Halland (1982), 197 Mont. 45, 54, 

641 P.2d 448, 453 that specificity of the alleged facts is an 

important part of a recall petition. There we said in part: 

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. 

The respondent has argued, and the District Court agreed, 

that the question of Sheehy's recall was political, rather 

than legal, and that the truth of the allegations was a 

matter for the electors of Chouteau County to decide. The 

statutes do not contemplate that the electors will decide the 

truth of charges made against a public officer in a recall 

petition. The Recall Act requires truth in the beginning of 

the process. 

Whether the allegations are legally sufficient is a 

matter of law for a district court to decide. This Court 

said in Foster v. Kovich (1983), 207 Mont. 139, 150, 673 P.2d 

1239, 1246: 

Some state constitutions or statutes provide very 

broad recall and vest in the electorate the power 

to determine whether the acts alleged in the 

petition are grounds for recall. In Montana, 

however, the legislature has limited the grounds 

for recall and has given the District Court the 

power to determine the legal sufficiency of the 

allegations in the recall petition. The legal 

sufficiency of the allegations is not left to the 

electorate. Therefore, a petition may never reach 

the electorate because it fails to specify acts 

legally sufficient to constitute grounds for recall 

under section 2-16-603(3) of the Recall Act. 

For the reasons foregoing, we issued our Order of 

October 14, 1988, removing the recall petition from the 
electorate, and directing the County Clerk and Recorder not 

to count any results with respect to the recall and not to 

canvass or enter upon any records of county or state any 

purported results of said recall election. We did so by 

means of an injunction. The petitioner on appeal has argued 

for a writ of prohibition but we determined that under the 

applicable statute, injunction was the only proper relief. 

Our decision to issue an injunction came from the 

language of S 2-16-615 (2), MCA. That statute provides that 

if the election officer refuses to file or to accept any 

petition for recall which is otherwise proper, an elector may 

apply to the District Court for a writ of mandamus. On the 

other hand, if a determination is made that any accepted and 

filed petition is not sufficient "the court may enjoin 

certification, printing, or recall election." The statute is 

clear. When, as here, the recall petition is deficient, the 

remedy is by injunction. 

For the reasons foregoing, we held on October 14, 1988, 

and now repeat that the decision of the District Court 

denying relief to petitioner Thomas Sheehy is reversed; and 

the language of our order restraining and enjoining any 

further proceedings by the County Clerk and Recorder as to 

the said recall petition affecting Thomas Sheehy is hereby 

confirmed and continued. Let remittitur issue forthwith. 

Gek Justice 

We Concur: 
#E Justices