Foster v. Kovich, 82-450

• Citation: 673 P.2d 1239,207 Mont. 139
• Decision Date: 12 December 1983
• Docket Number: No. 82-450,82-450
• Court: Montana Supreme Court
• Parties: David E. FOSTER, Plaintiff and Appellant, v. Helen KOVICH, Election Administrator, County of Lewis & Clark, State of Montana, Defendant and Respondent.

Page 1239

673 P.2d 1239

207 Mont. 139

David E. FOSTER, Plaintiff and Appellant, v. Helen KOVICH, Election Administrator, County of Lewis &

Clark, State of Montana, Defendant and Respondent.

No. 82-450.

Supreme Court of Montana.

Submitted June 3, 1983.

Decided Dec. 12, 1983.

Cannon & Sheehy, Edmund F. Sheehy, Jr. and Ross Cannon, argued, Helena, for plaintiff and appellant.

Mike Greely, Atty. Gen., Judy Browning, argued, Asst. Atty. Gen., Mike McGrath, County Atty., Helena, for defendant and respondent.

SHEA, Justice.

Plaintiff, David E. Foster, the mayor of East Helena, appeals from summary judgment entered against him in Lewis and Clark County District Court. The trial court dissolved the temporary injunction prohibiting the recall election and ordered that the election take place. The trial court then suspended entry of the order pending the outcome of this appeal.

Plaintiff presents two issues. First, he argues that the allegations in the recall petition were legally insufficient to constitute grounds for recall under section 2-16-603(3), MCA, of the Montana Recall Act. We agree with plaintiff that under the Montana Recall Act, the legal sufficiency of allegations in a recall petition is a judicial as opposed to a political question, and is to be decided by the District Court. Second, he argues that the Montana Recall Act, section 2-16-601 et seq., MCA, is unconstitutional because it delegates legislative power to the election administrator to determine the sufficiency of the petition as to form. We reverse the trial court and hold that the allegations in the recall petition were insufficient as a matter of law to constitute grounds for recall and direct the trial court to enter an order enjoining the election administrator from authorizing the election. We do not reach the constitutional issue because we find the issue regarding the petition dispositive.

The recall petition was based on three of the five alternative grounds for recall of an elected public official specified in section 2-16-603(3), MCA, of the Montana Recall Act. First, it was alleged that the mayor was guilty of official misconduct because he demoted the police chief without cause as required by a city ordinance. Second, the petition alleged that the mayor violated his oath of office by failing to follow the prescribed order of business for four city council meetings in January and February 1982. Third, the petition alleged that the mayor was incompetent to hold office because he failed to conduct an orderly council meeting on February 4, 1982, and used vulgar language while conducting that meeting.

The first recall petition was, on the advice of the county attorney, rejected because it was wrongly addressed and because the general statement of reasons for recall exceeded the 200-word limit imposed by section 2-16-616, MCA. Petitioner revised the general statement as required and properly addressed the second petition to the Clerk and Recorder for Lewis and Clark County. The second petition was, on the advice of the county attorney, accepted as sufficient to allow a recall election if the requisite number of signatures were obtained.

Invoking a remedy provided for in the Recall Act, the mayor then petitioned the trial court asking that the recall petition be held invalid. The mayor contended that the reasons for recall cited by the petition were not adequately specific and insufficient to meet any definition of the grounds for recall specified in section 2-16-603(3), MCA. The mayor also contended that the Montana Recall Act unconstitutionally delegates legislative power to the county election administrator to determine the sufficiency of the recall petition as to form.

The trial court rejected out of hand the contention that the Montana Recall Act was an unconstitutional delegation of power to the election administrator. In rejecting the claim that the charges in the petition were not sufficiently specific and definite to allow the mayor to respond and defend himself before the people, the trial court relied on authority from the states of Washington and Michigan. This authority, however, is inapplicable to the recall provision in this state because the constitutional and statutory grounds for recall in Michigan and Washington are substantially dissimilar to the grounds for recall specified in section 2-16-603(3) of the Montana Recall Act.

Michigan constitutional and statutory law require only that the recall petition "... state clearly ..." the reasons for recall. However, determination of the sufficiency of the grounds stated for recall is left to the Michigan electorate. It is not a judicial determination as in Montana. Further, Michigan law does not limit the grounds for recall to specific constitutional or statutory provisions but Montana does. See, section 2-16-603(3) of the Recall Act. Therefore, the trial court's reliance on the Michigan cases of Molitor v. Miller (1980), 102 Mich.App. 344, 301 N.W.2d 532, and Amberg v. Welsh (1949), 325 Mich. 285, 38 N.W.2d 304 was misplaced.

The trial court also improperly relied on the Washington case of Bocek v. Bayley (1973), 81 Wash.2d 831, 505 P.2d 814. In Washington, an elective public officer may be recalled for any acts of malfeasance or misfeasance in office, or for a violation of the oath of office. Art. 1, § 33, (Amendment 8) Wash.Const.; RCW § 29.82.010. However, malfeasance or misfeasance is not a ground for recall in Montana.

In 1979, the Montana Recall Act was amended by removing malfeasance and misfeasance, and inserting official misconduct as a ground for recall. We presume that the legislature, in adopting an amendment to a statute, intended to make some change in existing law. Montana Milk Control Board v. Community Creamery Co. (1961), 139 Mont. 523, 366 P.2d 151. That presumption is especially applicable where, as here, the amendment materially changes the statutory provisions. We believe the legislature intended to change the law regarding grounds for recall by substituting official misconduct for malfeasance or misfeasance.

It follows that malfeasance and misfeasance cannot be equated to official misconduct under the Montana Recall Act. The only similarity between the Washington and Montana recall provisions is that a public officer may be recalled for violating an oath of office. But a careful reading of Bocek indicates that even reliance by the trial court on the violation of oath of office similarity was misplaced. Although in Bocek, the recall petition alleged violations of oath of office, the Washington Supreme Court did not hold that any of the acts alleged were such a violation. Rather, the Washington court analyzed the allegations only in light of misfeasance and malfeasance, grounds that are not a statutory basis for recall in Montana.

We proceed to a discussion of each charge alleged in the recall petition. The first charge, one that the mayor "misconducted himself in office by removing" a police officer from his position, requires a discussion of the statutory ground for recall, "official misconduct."

Although not specified in the recall petition, it appears that the petitioners, in alleging the removal of the police officer as a ground of recall, intended to charge the mayor with "official misconduct" as specified in section 2-16-603(3) of the Recall Act. We determine, however, that the allegations here cannot fall within the meaning of "official misconduct" as intended by the legislature, for the legislature intended "official misconduct" to be defined only as it is defined in the criminal code under section 45-7-401, MCA.

Official misconduct is set forth in section 2-16-603(3) as a ground of recall. This statute provides in pertinent part:

"Officers subject to recall--grounds for recall. (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."

The second sentence of subsection 2-16-603(3), MCA, expressly states that "[n]o person may be recalled ... for not performing any act that, if performed, would subject him to prosecution for official misconduct." (Emphasis added.) We are convinced by this statutory language and by the legislative history of section 2-16-603, MCA, that official misconduct is to be applied for purposes of recall as it is defined in the criminal code under section 45-7-401, MCA. That statute provides in relevant part:

"Official misconduct. (1) A public servant commits the offense of official misconduct when in his official capacity he commits any of the following acts:

"(a) purposely or negligently fails to perform any mandatory duty as required by law or by a court of competent jurisdiction;

"(b) knowingly performs an act in his official capacity which he knows is forbidden by law "(c) with the purpose to obtain advantage for himself or another, performs an act in excess of his lawful authority;

"(d) solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law; or

"(e) knowingly conducts a meeting of a public agency in violation of 2-3-203."

A public servant is not guilty of official misconduct and subject to recall unless he has committed one or more of the acts specified in section 45-7-401, MCA. As we discuss below, removal or demotion of a police officer without cause does not constitute grounds upon which to seek recall of the mayor.

The petition alleges that the "removal" and "demotion" of the police officer violated a city ordinance relating to the...