Recall election not moving forward
December 14, 2016
A recall election for five Town of Whitehall officials will not move forward.
Last Friday, Seventh Judicial District Judge Katherine M. Bidegaray ruled in favor of an order granting second amended application for injunctive relief filed by Mayor Dale Davis, and Council Members Vincent Keogh, Gary Housman, Tom Jenkin and Joe Adams.
The ruling by Bidegaray states the respondents (The Jefferson County Elections Office, Jefferson County Election Administrator Bonnie Ramey, and Recall Petitioner Lynn Nemeth) are permanently restrained and enjoined from conducting a Recall Election based on the invalid and legally insufficient Recall Petitions and Circulation Sheets.
The ruling filed in the Montana Fifth Judicial District Court includes nearly eight pages of Findings of Fact and Conclusions of Law.
Listed below is some of the information included in the court documents.
In the Findings of Fact, Bidegaray states that at an April 11 meeting, the Town Council passed a resolution related to the Whitehall Ambulance Service.
It goes on to say that on May 24, 2016, Nemeth, a Whitehall resident, signed identical recall petitions seeking recall of the petitioners.
The recall petitions state that on April 11, 2016, officials committed official misconduct when they voted in favor of a motion directing the county to dispatch the Whitehall Ambulance to all fire calls without proper notice and participation by the public. The petitions later state that the government official violated their oath of office to support the Constitution of Montana by not abiding by Article 2, Section 8, which assures the public the right of participation prior to final decision and Article 2, Section 9, which assures the public the right to know and observe deliberations.
“Grounds for include a violation of oath of office and official misconduct,” the petition stated.
Bidegaray stated that Nemeth also prepared circulation sheets, as required by §2-16-617, MCA, which she also titled “RECALL PETITION”.
The circulations sheets stated that the petitioners allowed the Ambulance Supervisor to demand a motion directing the county to dispatch the ambulance to all fire calls, and the Mayor and Council acted on the request without proper notice and participation by the public, and they violated their oath by not abiding by Article 2 and Section 8 and 9 of the Montana Constitution.
Bidegaray stated that when Nemeth circulated the sheets, she also brought along and distributed a fact sheet to some of the qualified electors she approached.
“The fact sheet mentioned matters not mentioned as reasons in either the Recall Petitions or Circulations sheets,” Bidegaray said.
The Conclusion of Law states “Nemeth’s Recall Petitions do not substantially follow the form set for in §2-16-616, MCA, because they do not include the WARNING required by §2-16-616, MCA, which was instead only included on the Circulation Sheets, but more importantly because they describe the signers to be qualified electors of Jefferson County rather than of the town of Whitehall and the Petitioners sought to be recalled hold public office for the political subdivision of the Town of Whitehall.”
Bidegaray stated the Town of Whitehall and Jefferson County are separate and distinct political subdivisions.
“The public office held by each of the Petitioners was a position held for the political subdivision of the Town of Whitehall or one if its Wards. The Petitioners may be recalled only by the qualified electors of the Town of Whitehall or one of its Wards, not the electors of Jefferson County. Not every qualified elector of Jefferson County is a qualified elector of the Town of Whitehall who may sign a petition for recall of an office of the political subdivisions of the Town of Whitehall. The warning absent from the recall petitions but included on each circulation sheet, did not name the ‘appropriate’ political subdivision, as required by §2-16-616, MCA. The warning did not properly alert qualified electors of Jefferson County who are not qualified electors of the Town of Whitehall of the consequences of signing the recall petitions,” Bidegaray said in the Conclusions of Law.
Bidegaray goes on to say a public officer may be recalled by qualified electors for only certain grounds.
“Failure to specify the alleged acts constituting misconduct renders a Recall Petition deficient because it does not acquaint the public, who signatures are requested, with the alleged acts constituting misconduct and does not permit the office holder to respond and defend himself adequately against the alleged misconduct,” Bidegaray wrote. “Here, when Nemeth circulated the circulation sheets, she brought along and distributed a fact sheet, which contained allegations of misconduct that were different from and occurred later than the specific misconduct alleged in the recall petitions.”
Bidegaray said the circulation sheets with the petitions were not substantially 8 ½ x 14 inches as required by MCA §2-16-617.
She also said the recall petitions and the circulation sheets were deficient as to form, and use of the fact sheet was contrary to the Montana Recall Act.