A recall petition sponsored by Whitehall resident Lynn Nemeth alleges that Mayor Davis and 4 Aldermen committed official misconduct at a 4/11/16 meeting when they voted to direct Jefferson Co. to dispatch the Whitehall ambulance to all fire calls. The petition alleges that the ambulance director was allowed to make statements without the item being on the agenda and the public was not allowed to participate. County ElectionAdministrator BonnieRamey verified petition signatures pursuant to § 2-16-620. Enough valid signatures were submitted to force a recall election for 8/16/16, but it was halted by a TRO 7 /15. Davis and the Aldermen request a permanent injunction restraining Ramey from holding a recall election, declaring the petitions legally insufficient, and granting them attorney fees/costs. The application was heard 12/2/16 by NN from the Richland Co. courtroom 

Nemeth’s recall petitions do not substantially follow the form set forth in §2-16-616 because they do not include the WARNING required by §616(1 ), which was included only on the circulation sheets, but more importantly because they describe the signers as qualified electors of Jefferson Co. rather than the Town of Whitehall and the officials sought to be recalled hold office for the political subdivision of the Town of Whitehall. The circulation sheets were not substantially 8½ x 14 inches as required by §617(1 ). Although, pursuant to §618, "the forms prescribed in the [Montana Recall Act] are not mandatory, and if substantially followed, the petition shall be sufficient, not with­standing clerical and merely technical errors," some requirements of §616 are more than clerical or technical. Ko tar (Mont. 1983) ( omission of warning required by §616 and the heading from some petitions more than clerical or merely technical). 

Recall is "special, extraordinary, and unusual, 11 and produces the "harsh" result of removing an official prior to expiration of the fixed term to which he was elected Palmer(Mont. 1982). Whether the basis is constitutional or statutory, failure to comply with the statute is fatal. Id.

"The statutory limitations set out in the Montana Recall Act express a clear intent that the recall procedure not be lightly undertaken." Id. Kotar stated that 

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 signau.rre sheet. The warn­ing advised 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 requirement 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 ....

RECALL PETITION:

Permanent injunction against recall of Whitehall Mayor and Aldermen due to deficient/noncon­forming petitions and circulation sheets.

Whitehall and Jefferson Co. are separate & distinct political subdivisions. The office held by Petitioners was a position for Whitehall or one of its Wards. They may be recalled only by the qualified electors of Whitehall or one of its Wards, not the qualified electors of the County. §602(2). The warning, absent from the petitions but included on circulation sheets, did not name the "appropriate" subdivision as required by §616(1). It did not properly alert electors of the County who are not electors of Whitehall of the consequences of signing.

A public officer may be recalled for only certain grounds. §603(2). Failure to specify the alleged acts constituting miscon­duct renders a petition deficient because it does not acquaint the public whose signau.rres are requested with the alleged acts and does not permit the officer to respond and defend himself adequately. Steadman (Mont. 1982); Foster (Mont. 1983); Sheehy (Mont. 1988). When Nemeth circulated the circulation sheets she brought along and distributed a fact sheet with allegations of misconduct that were different from and occurred later than the misconduct alleged in the petitions.

The recall petitions and circulation sheets were deficient as to form, and use of the fact sheet was contrary to the Act. Ramey and Nemeth are permanently enjoined from conducting a recall election.

Nemeth filed the petitions and is therefore a necessary party to this action and may be responsible for any relief granted. Ramey approved the petitions as to form and is therefore a necessary party and may be responsible for any relief granted.

The parties are asked to brief whether an award of fees & costs is necessary and proper pursuant to §25-10-711 ( 1 )(b ).

Davis, Keogh, Housman, Jenkin, Adams v. Ramey and Nemeth, Jefferson DV-16-53, 12/9/16.