Quigley v. Lebsack

362 N.W.2d 31, 219 Neb. 110, 1985 Neb. LEXIS 889
CourtNebraska Supreme Court
DecidedFebruary 1, 1985
DocketNo. 83-504
StatusPublished

This text of 362 N.W.2d 31 (Quigley v. Lebsack) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quigley v. Lebsack, 362 N.W.2d 31, 219 Neb. 110, 1985 Neb. LEXIS 889 (Neb. 1985).

Opinions

Shanahan, J.

Stanley G. Quigley appeals the dismissal of his action in the district court for Red Willow County, namely, Quigley’s suit to enjoin a recall election.

Quigley, director of the McCook Public Power District, subdivision No. 3, filed a petition seeking to enjoin Phyllis Lebsack, county clerk and election commissioner of Red Willow County, and the Red Willow County commissioners from holding a recall election to relieve Quigley of his directorship. To achieve the recall election, the recall petition required signatures of 139 registered voters. Lebsack determined that there were 160 valid signatures on the recall petitions and found the petitions sufficient for the recall election. At a hearing before the district court the uncontradicted evidence disclosed that 49 of the 160 signatories did not personally indicate their residence addresses on the recall petitions. Rather, based on information contained in the county’s voter registration lists and without request from the petitioning signatory, either the circulators of the recall petitions or spouses of the circulators inserted the 49 signatories’ addresses on the petitions previously signed. There was no evidence offered to show that the signatories in question resided or had any actual address in subdivision No. 3 of McCook Public Power District.

At the time the petitions were circulated, Neb. Rev. Stat. § 32-102 (Reissue 1978) provided:

Elector shall mean every person of the constitutionally prescribed age or upwards, and who shall have the right to vote for all officers to be elected to public office, and upon all questions and propositions lawfully submitted to the voters at any and all elections authorized or provided for by the Constitution or laws of the State, of Nebraska; Provided, no person shall be qualified to vote at any election unless such person shall be a resident of the state, county, precinct, township, or ward on or before election day, and shall have been properly registered with the county clerk or election commissioner, and shall be a citizen of the United States.

Regarding a recall petition, Neb. Rev. Stat. § 23-2010.02 [112]*112(Cum. Supp. 1982) in part provides: “Each signer of a recall petition shall sign his or her name in ink or indelible pencil and shall place thereon after his or her name his or her place of residence by street and number.” Neb. Rev. Stat. § 23-2010.08 (Cum. Supp. 1982) provides:

Should a majority of the votes cast thereon at a recall election be against the removal of the officer named on the ballot, such officer shall continue in office for the remainder of his or her term, subject to recall as before. If a majority of the votes cast thereon, at a recall election, shall be for the removal of the officer named on the ballot, he or'she shall, regardless of any technical defects in the recall petition, be deemed removed from office.

The district court refused to enjoin the recall election involving Quigley. The election was held and Quigley was recalled.

Quigley contends that an injunction should have been issued because 49 of the signatories did not personally place their residence addresses on the recall petitions. Lebsack claims that the statutory provision for inclusion of the signatory’s residence address is “merely informational in nature to assist the county clerk in her verification of signatures.” Brief for Appellees at 2. Hence, according to Lebsack, any failure to comply with the statute is a technical deficiency only.

A recall statute, or any other kind of election statute, must be liberally construed to effectuate the purpose for which the statute is intended. Shaw v. Stewart, 115 Neb. 315, 212 N.W. 760 (1927). See, also, Stone et al. v. Wyckoff, et al., 102 N.J. Super. 26, 245 A.2d 215 (1968); In re Petition for Removal of Rice, 35 Ill. App. 2d 79, 181 N.E.2d 742 (1962); Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741 (1931). However, liberal construction of statutes governing recall of public, elected officials does not constitute a license to totally ignore the express requirements of recall statutes. State ex rel. Palmer v. Hart, __ Mont. __, 655 P.2d 965 (1982); Hazelwood v. Saul, 619 P.2d 499 (Colo. 1980).

Section 32-102 expresses and impresses the importance and necessity of residence in reference to the electoral process in [113]*113Nebraska. Indication of residence address specified in § 23-2010.02 impliedly assures that only registered voters will participate in the political process envisioned in removal of an elected official by recall. See Cleland v. District Court, 92 Nev. 454, 552 P.2d 488 (1976). The obvious purpose for requiring the address of a signatory is to supply a convenient method of checking whether a signatory is ostensibly a qualified elector. Whitman v. Moore, supra. Additionally, another aim of the statute requiring a signatory’s actual address is to enable a protestant to trace the signatory for the purpose of determining qualification to sign the petition. In re Referendum Petition No. 31, 68 Okla. 147, 172 P. 639 (1918).

Therefore, § 23-2010.02 imposes a requirement that a signatory indicate a residence address to provide prima facie qualification of the signatory as an elector entitled to sign a recall petition.

We do not suggest that all persons signing a recall petition must personally place their respective addresses on the petition. Courts have interpreted statutory provisions similar to § 23-2010.02 in such a manner as to allow the circulator or some third person to insert the signatory’s address pursuant to authorization from the signatory. See, In re Petition for Removal of Rice, supra; Schumacher v. Byrne, supra; In re State Question No. 137, etc., 114 Okla. 132, 244 P. 806 (1926).

Further, we do not suggest that qualified voters without street or number addresses cannot sign a recall petition. We have previously addressed this problem in Bartling v. Wait, 96 Neb. 532, 148 N.W. 507 (1914). In that case we held at 536, 148 N.W. at 508:

It is claimed that the petition is defective because 1,852 signers of the petition did not give their complete post office address; that the address is shown only by the city or village in which the signer purports to live, but neither the county nor state in which they live appears on the face of the petition, except that each appears on the other side of each petition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. Palmer v. Hart
655 P.2d 965 (Montana Supreme Court, 1982)
Hazelwood v. Saul
619 P.2d 499 (Supreme Court of Colorado, 1980)
Spence v. Terry
340 N.W.2d 884 (Nebraska Supreme Court, 1983)
In Re Petition for Removal of Rice
181 N.E.2d 742 (Appellate Court of Illinois, 1962)
Stone v. Wyckoff
245 A.2d 215 (New Jersey Superior Court App Division, 1968)
Whitman v. Moore
125 P.2d 445 (Arizona Supreme Court, 1942)
Schumacher v. Byrne
237 N.W. 741 (North Dakota Supreme Court, 1931)
In Re State Question No. 137, Etc.
1926 OK 222 (Supreme Court of Oklahoma, 1926)
In Re Referendum Petition No. 31
1918 OK 238 (Supreme Court of Oklahoma, 1918)
Brereton v. Board of Canvassers
177 A. 147 (Supreme Court of Rhode Island, 1935)
Brereton v. . Board of Canvassers
177 A. 147 (Supreme Court of Rhode Island, 1934)
Bartling v. Wait
148 N.W. 507 (Nebraska Supreme Court, 1914)
Shaw v. Stewart
212 N.W. 760 (Nebraska Supreme Court, 1927)
State ex rel. Morris v. Marsh
162 N.W.2d 262 (Nebraska Supreme Court, 1968)
State ex rel. Morris v. Marsh
162 N.W.2d 262 (Nebraska Supreme Court, 1968)
Cleland v. Eighth Judicial District Court
552 P.2d 488 (Nevada Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
362 N.W.2d 31, 219 Neb. 110, 1985 Neb. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quigley-v-lebsack-neb-1985.