Johnson v. Maehling

• Decision Date: 11 June 1979
• Docket Number: No. 13739,13739
• Citation: Johnson v. Maehling, 123 Ariz. 15, 597 P.2d 1 (Ariz. 1979)
• Parties: Rose Marie JOHNSON, Sheila Jane Monypeny, Caroline Jessen, Carol Ann Christ, Ronald L. Christ, M.D., Olga Schumack, Gail Beeler, Harry Balley, L. A. Johnson, Alvin L. Geren, Harvey D. Taylor, Francine C. Taylor, Cecil L. Jacobson, John E. Power, Jon Jessen, Karl Dennis, Elizabeth P. Keddie, Jess Baker, Richard W. Grogget, Jr., Roland P. Beeler, Janice R. Greer, and Gary A. Greer, Appellants, v. Leon H. MAEHLING, Yuma County School Superintendent and Cara Betts, Yuma CountyRecorder, and Kay Balmforth, Bernard Jesse, and Alice Smith, Intervenors, Appellees.
• Court: Arizona Supreme Court

Page 1

597 P.2d 1

123 Ariz. 15

Rose Marie JOHNSON, Sheila Jane Monypeny, Caroline Jessen, Carol Ann Christ, Ronald L. Christ, M.D., Olga Schumack, Gail Beeler, Harry Balley, L. A. Johnson, Alvin L. Geren, Harvey D. Taylor, Francine C. Taylor, Cecil L. Jacobson, John E. Power, Jon Jessen, Karl Dennis, Elizabeth P. Keddie, Jess Baker, Richard W. Grogget, Jr., Roland P. Beeler, Janice R. Greer, and Gary A. Greer, Appellants, v. Leon H. MAEHLING, Yuma County School Superintendent and Cara Betts, Yuma CountyRecorder, and Kay Balmforth, Bernard Jesse, and Alice Smith, Intervenors, Appellees.

No. 13739.

Supreme Court of Arizona, In Banc.

June 11, 1979.

Ronald F. Jones, Yuma, for appellants.

Michael Irwin, Yuma County Atty., and Nebeker, Hunt, Stanley & Hossler by Robert J. Roberson, Yuma, for appellees.

HOLOHAN, Justice.

Appellants, two members of the Crane School Board of Trustees, Yuma County, attacked the sufficiency of the recall petitions filed against them. The Yuma County Superior Court found the petitions sufficient to mandate the recall election. The case was brought on direct appeal to this court pursuant to A.R.S. § 19-208.04(B). We denied relief to the appellants in an order issued May 9, 1978 with a notation that a formal opinion would follow. The election took place on May 16. Appellees and appellee-intervenors then moved to dismiss this appeal on grounds of mootness. This motion was denied on September 7, 1978. Appellants are entitled to the written decision of this court setting forth the grounds for the denial of relief in their appeal. Ariz.Const. art. VI § 2.

Appellants had been duly elected to the Crane School Elementary School Board, a five-member board. A group of residents became dissatisfied with four of the board members and decided to initiate a recall. In order to secure petitions from enough voters to force a recall election, appellee-intervenors formed the Crane Citizens for Quality Education, whose purpose was to gather support for the recall movement.

Recall petitions were presented to Leon Maehling, Yuma County School Superintendent, for certification. The superintendent, relying on an opinion issued by the Yuma County Attorney, determined that a sufficient number of signatures on the petitions were submitted to mandate a recall election. He forwarded the petitions to the Yuma County Recorder, Cara Betts, for validation of the signatures. She examined the petitions, validating those signatures she found to be in order and striking those she found defective.

Appellee Maehling received the verified petitions from the County Recorder and found that the number of signatures was sufficient to authorize a recall election for all four board members in question. Subsequently, pursuant to A.R.S. § 19-205.01, the board members and their supporters convinced a number of the petitioners to withdraw their signatures. As a result, the attempt to recall board members Jessen and Keddie ultimately failed for lack of sufficient signatures. Mr. Maehling scheduled a recall election for the two remaining board members, Baker and Dennis.

Appellants challenged the actions of Maehling and Betts in the superior court, and after failing in that court filed an appeal with this court which also denied relief. The election was subsequently held, and both board members Baker and Dennis were recalled.

At the time this appeal was taken the parties stipulated that 14 issues would be briefed and argued. We will address each of these issues in the order in which they were originally stated.

ISSUE 1.

What number of signatures is required to force a recall election when the official being recalled was originally elected in an election in which voters were allowed to vote for two candidates for office?

The Arizona constitution provides for the recall of elected public officials. It states:

"Such number of said electors as shall equal twenty-five per centum of the number of votes cast at the last preceding general election for all of the candidates for the office held by such officer, may by petition, which shall be known as a recall petition, demand his recall." A.R.S.Const. art. 8 pt. 1 § 1.

A.R.S. § 19-201 contains essentially the same provision. The two school board members who were recalled had been elected simultaneously in an at-large election. Because two offices were to be filled, voters were each allowed to vote for two candidates in the election, with each candidate being eligible for either of two offices. The total number of votes cast for all candidates in the election was 2,802. Were we to apply the language of the constitutional provision literally, as appellants suggest, we would need to count every vote cast for all the candidates for both board positions, and then use that number to compute the number of signatures required to mandate a recall. Twenty-five percent of the votes cast would be 701. Requiring 701 signatures on the recall petitions would, in effect, require nearly half the number of voters who elected Baker and Dennis to sign petitions before a recall election could be held. In the case of Baker, who won office by receiving 726 votes, the recall committee would need nearly as many voters to petition for Baker's recall as it took to elect him. Such a result was obviously not intended by those who drafted the constitution.

The purpose of the petition procedure is to avoid the expense of holding recall elections except in those cases where a significant showing of voter interest is demonstrated. The procedure is not intended to protect incumbents from being ousted by dissatisfied voters. Unlike many states which require an allegation of misconduct in office as a prerequisite to recall, Arizona's recall provision allows an official to be removed from office merely on the basis of a change in public opinion. Abbey v. Green, 28 Ariz. 53, 235 P. 150 (1925). Since the provision is for the benefit of the public rather than the officials, we construe the language liberally in favor of permitting recall elections.

The application of the constitutional requirement for twenty-five per centum of the number of votes cast for all of the candidates for the office held by the officer subject to recall is easily calculable when a single office is at issue. In those instances in which voters are permitted to vote for more than one candidate to fill several offices (school board, city council, etc.) the literal application sought by appellant causes an absurd result. In such elections we hold that the proper method of calculating the number of signatures required for a recall is to divide the total number of votes cast for all candidates by the number of offices to be filled at that election. It is readily conceded that the resulting number is an approximation because some voters may have chosen to cast one vote for a single candidate. We believe, however, that out of necessity and fairness the foregoing formula is more in harmony with the constitutional intent.

In the present case 2,802 votes were cast for all the candidates for both offices. Since two offices were being filled, we divide 2,802 by two which results in 1,401 votes being considered as cast for each office. Applying the constitutional provision to this number of votes, we find that 25 percent, or 351 signatures, would be needed to mandate a recall election. The recall committee filed 542 signatures for the recall of Baker and 545 for the recall of Dennis. Using this approach the school superintendent was correct in determining that the recall committee had presented enough petition signatures to warrant holding a recall election.

ISSUE 2.

Were the five deputy registrars involved in the recall properly appointed, and if not, did those five obtain the status of de facto registrars, thereby validating the registrations that they performed?

A.R.S. § 16-141 establishes the procedure by which the county recorder shall appoint deputy registrars. It provides that deputy registrars shall "be appointed from a list of eligible voters in the precinct, such list to be sent to the county recorder by the county chairman of each political party." In this case, the county recorder appointed five of the recall supporters at their own request.

Appellees have apparently conceded that the appointments of the five recall supporters as deputy registrars were beyond the authority of County Recorder Betts because none of the five had been nominated by a political party. Rather, appellees contend and the trial court found that the voter registrations in question should be deemed valid on the theory that the county registrars were "de facto" officers whose acts should be given legal effect because of the public's reliance upon them.

In Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975), the Supreme Court of Kansas discussed the definition of de facto officer. The court referred to three types of de facto officer, the third of which it defined as follows:

"An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised: . . . 3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public." Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. at 558-59, 539 P.2d at 12-13.

In this case, not only the public, but the deputy registrars themselves were unaware of any irregularity in the appointment procedure. A significant number of voters were registered by these five deputy registrars. Tremendous confusion would certainly result from a declaration that these registrations were...