Sheehy v. Ferda, 88-489
| Decision Date | 02 December 1988 |
| Docket Number | No. 88-489,88-489 |
| Citation | 765 P.2d 722,235 Mont. 63 |
| Court | Montana Supreme Court |
| Parties | Thomas SHEEHY, Petitioner and Appellant, v. Jenny Lee FERDA, Clerk & Recorder, Chouteau County, Montana, Respondent and Respondent. |
Douglas J. Wold argued, Polson, for petitioner and appellant.
Tracy Axelberg argued, Jardine, Stephenson, Blewett & Weaver, Great Falls, for respondent and respondent.
Donald A. Ranstrom, President, Montana County Attys. Assoc., Chinook, for amicus curiae.
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, § 3-1-803(2), MCA, as follows):
Any justice ... must not sit or act in any action or proceeding:
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(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 § 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.
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(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
Subscribed and sworn before me a Notary Public for the State of Montana
Dated this 6th day of May, 1988
/s/ Debra McSweeney
Notary Public
(SEAL)
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 the 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), 94 Misc.2d 730, 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...
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