Unger v. Horn

732 P.2d 1275, 240 Kan. 740, 1987 Kan. LEXIS 287

• Court: Supreme Court of Kansas
• Decided: February 20, 1987
• Docket: 59,808
• Status: Published

Opinions

The opinion of the court was delivered by

Lockett, J.:

The plaintiffs, public officials, sought review by the district court of the county election officer’s determination that recall petitions to remove them from office were legally sufficient. K.S.A. 25-4331. The district court upheld the decision of the county election officer. Plaintiffs appeal.

Evan Unger and Ronald Temple are elected and acting members of the Unified School District No. 294 Board of Education. Separate petitions for their recall from office were filed with Marilyn Horn, county clerk and county election officer. The petitions stated:

“I, the undersigned, hereby seek the recall of Evan J. Unger from the office of USD 294 Board Member Pos. on the following grounds: He fails to make educated decisions by not utilizing the expertise of professional educators employed by the district, preferring to substitute his personal prejudices; he violates the Kansas Open Meetings laws by participating in unannounced private meetings; he creates the appearance of impropriety in that he fails to exercise his judgment independent from that of his employer.”

“I, the undersigned, hereby seek the recall of Ronald Temple from the office of School Board Member on the following grounds: As President of the School Board, fails to require or encourage a full examination of issues before the Board. He fails to utilize the expertise of professional educators employed by the district, preferring to substitute his personal prejudices, and he violates the Kansas Open Meetings law by participating in unannounced private meetings.”

On June 2,1986, Horn notified Unger and Temple that she had determined each petition was legally sufficient. Unger and Temple then filed this action in the district court to review Horn’s decision. K.S.A. 25-4331.

The district judge reviewed the petitions. The judge concluded that, even though the plaintiffs had never been charged or convicted of a violation of the Kansas Open Meetings Act, the allegation that Unger and Temple had violated the Act was legally sufficient under K.S.A. 25-4302. Unger and Temple appeal that decision. Horn does not appeal the judge’s decision that the other grounds alleged in the petitions were not sufficient.

Where a state constitutional provision provides for the recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any limitations on that power must be strictly construed. 63A Am. Jur. 2d, Public Officers and Employees § 190.

Article 4, Section 3 of the Kansas Constitution provides:

“All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.”

All elected public officers are subject to recall. K.S.A. 25-4301. The statutory grounds for recall are conviction of a felony, misconduct in office, incompetence, or failure to perform duties prescribed by law. K.S.A. 25-4302.

The power to remove elected public officials at the discretion of their electors is not unique. The concept of recall, at the direct instance and upon the motion of the electors, the ultimate source of power in the State, is contained within our Constitution. The electors are as qualified to determine the capability and efficiency of their elected officials, after giving those officials an opportunity to perform the duties of their offices, as they were when they first selected the officials to fill the positions. The elected public official takes the position for a fixed term with the condition attached that, should he violate a condition, he is subject to removal.

The recall of a local elected officer is conducted by the county election officer in the county where the petition is to be filed. K.S.A. 25-4319. The petition for recall must include a statement of the grounds for recall described in particular in not more than 200 words. K.S.A. 25-4320(a)(2). After the petition is filed, the county election officer determines the sufficiency of the petition. K.S.A. 25-4326. If the petition is determined to be sufficient, the county election officer, after notifying the election board and the official sought to be recalled that the petition was properly filed, prepares the ballots and calls a special election. K.S.A. 25-4328. The elected official sought to be recalled may file with the election officer a statement of not more than 200 words justifying his conduct in office. The election board must post copies of such statements for and against recall in conspicuous places at the polling place. K.S.A. 25-4329.

Any person aggrieved by the election officer’s determination that the petition for recall was sufficient or insufficient has 30 days from the date of notice to bring an action to review that determination in the district court. K.S.A. 25-4331.

A majority of those states which have considered the sufficiency of allegations in recall petitions have held that the truth or falsity of such grounds must be determined by the electors, not the courts. See Gilbert v. Morrow, 277 So. 2d 812 (Fla. Dist. App. 1973). The trial court may not pass upon the truth or falsity of the grounds stated for removal from office, inasmuch as this is the province of the electors. Still, the charges must allege sufficient facts to identify to the electors the act or failure to act without justification which is urged as misconduct in office. See Wallace v. Tripp, 358 Mich. 668, 101 N.W.2d 312 (1960); Mueller v. Jensen, 63 Wis. 2d 362, 217 N.W.2d 277 (1974).

The claim that Unger and Temple are incompetent or have failed to perform a duty prescribed by law are not questions raised in the appeal. The only question is whether the allegation in the recall petitions, that Unger and Temple violated the Kansas Open Meetings Laws by participating in an unannounced private meeting is misconduct in office, is sufficient. Unger and Temple claim that only a conviction for violating the Open Meetings Act is sufficient grounds for a recall of a public official.

K.S.A. 25-4302 provides, inter alia, that a conviction of a felony is required to subject a public officer to recall. A public official charged with a felony would not be subject to recall until convicted, unless the criminal act was also misconduct in office. A public official charged with embezzlement of the public funds he controlled would be subject to recall prior to being convicted in the felony criminal action. A public officer charged with misconduct in office, incompetence, or failure to perform duties prescribed by law is tried by the public in the recall election.

The Kansas Open Meetings Act requires that meetings for the transaction of governmental affairs or governmental business be open to the public. K.S.A. 75-4317. Any public officer who knowingly violates the Act is subject to a civil penalty not to exceed $500. K.S.A. 75-4320. Black’s Law Dictionary 1150 (4th ed. rev. 1968) defines misconduct in office as “[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in character,” citing Wysong v. Walden, 120 W. Va. 122, 125, 196 S.E. 573 (1938).

An allegation in a petition for recall that a public official willfully violated the Kansas Open Meetings Act is a legally sufficient claim of misconduct and may subject the public official to a recall election. The district judge correctly determined that Unger and Temple were subject to recall for a violation of the Kansas Open Meetings Act whether or not they were charged and convicted of the violation.

Unger and Temple also claim that the allegations in the recall petition did not state the grounds for recall “in particularity” as required by the statute.

The petition for a recall must in substance conform to the statutory requirements. Some states require a general statement only of the grounds on which the recall is sought. The Nevada Constitution and its recall statute each require that the recall petition set forth reasons why recall is demanded in 200 words or less. In Batchelor v. District Court, 81 Nev. 629, 408 P.2d 239 (1965), the Nevada Supreme Court found that the recall statute did not require specificity. There the petition charged that the mayor had “lost the respect and confidence of the great majority of the citizens of Boulder City, Nevada, in that the manner in which he contrived to discharge the City Manager of said City violated the concept of fairness held by a majority of such citizens.” The court determined that all that is demanded is that “the” reason for recall be stated, not that the reason be specific or even good. The merit of that reason as grounds for removal is for the electorate to determine, not the court. The reason, in whatever manner expressed, presents a political issue for resolution by vote, not a legal question for court decision.

Other states which have statutes requiring some allegation of specificity of the grounds for recall have held that the mere allegation of a violation of the law was not sufficient grounds to support a recall petition. For example:

Gilbert v. Morrow, 277 So. 2d 812 (Fla. Dist. App. 1973). The petition for recall stated as grounds for recall that “all four said men have failed to obey or comply with the Charter of the City of Parker and the Law of the State of Florida.” 277 So. 2d at 813. No further grounds or charges were set forth in the affidavit. The court said that an officeholder has a property right in his office and this right may not be unlawfully taken away or illegally infringed upon. It added that “the charges must allege sufficient facts to identify to the electors the acts or failure to act without justification which are urged as misconduct in office.” 277 So. 2d at 814.

Steadman v. Hallard, 197 Mont. 45, 641 P.2d 448 (1982). The Montana recall statute requires a petition to set out “a general statement of the reasons for recall in not more than 200 words.” The petitioners had submitted a recall petition which stated that the sheriff “acted in a manner to bring discredit to himself and the Department by OFFICIAL MISCONDUCT stemming from an incident in Sweet Grass County on November 7, 1980.”

The Montana court, in considering the sufficiency of the petition, noted that initial review of recall petitions is intended to save the public and government officials the time and expense of circulating and responding to a petition which is fatally defective. It concluded that the statement of the grounds for recall “is deficient because it does not acquaint the public, whose signatures are requested, with the alleged acts constituting misconduct, nor does it permit Sheriff Shaffer to respond and defend himself adequately against the allegation of misconduct in the event that an election is required.” 197 Mont, at 54. It added that recall charges are sufficiently specific if they are definite enough to allow the charged official to meet them before the tribunal of the people. “Otherwise discontented constituents could initiate a circulation petition by alleging misbehavior in terms so general that the object of the recall effort would be incapable of defending himself, and some electors would sign the recall petition with no idea of what words or acts of the official might have precipitated the recall effort.” 197 Mont, at 54.

Herron v. McClanahan, 28 Wash. App. 552, 558, 625 P.2d 707 (1981). The Washington statute requires that the recall petition include as grounds for recall “an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office . . . which charge shall state the act or acts complained of in concise language, giving a detailed description including the approximate date, location and nature of each act complained of . . . .” The court said that the charges are sufficiently specific if they are definite enough to notify the charged official of the precise act or acts of alleged misconduct so as to enable him to make a meaningful public response to the merits of each charge and sufficient to inform the voters of the charge. 28 Wash. App. at 559.

The Kansas Constitution mandates that there be a recall procedure for public officers. The form and substance of the recall petition are prescribed by Kansas statutes. During the 1913 session of the Kansas legislature, it approved adding three sections to Article 4 of the Kansas Constitution for recall of public officers. The three sections were adopted by the voters during the November 1914 general elections. In the 1915 General Statutes, § 193 provides for recall. It states that “the petition and proclamation of election shall state in not more than two hundred words the reasons for the recall.”

Recall procedures were later enacted for first, second, and third class cities and for school boards. For example, the General Statutes of 1949 § 13-1711 provided for recall of elective officers for first class cities. That statute required that the petition contain “a general statement of the grounds for which removal is sought.” The city clerk was required to ascertain whether or not the petition was signed by the requisite number of qualified electors and to then certify the petition to the commission.

In 1975, Senate Bill No. 438, a procedure to recall elective public officials, was introduced. The bill provided that the petition for recall “shall contain a general statement of the grounds upon which the recall is sought, which statement is intended solely for the information of the electors and the sufficiency of which shall not be open for review.” The bill was referred to committee. In 1976, House Bill 2661 was drafted for consideration by the legislature. House Bill 2661 provided that each petition for recall of a local officer shall include “the grounds for recall described in particular in not more than two hundred (200) words.” Both the Senate and House bills were referred to a special committee. The Reports of Special Committees to the 1976 Kansas Legislature reveals that major features of the recall laws of five states (Alaska, California, Colorado, Idaho, and Wisconsin) were compared. Of the five states, only the Alaska statute specified that the ground for recall be stated in particular.

The committee’s recommendation for recall provided for a two-phase recall procedure prior to a possible recall election for state officers — an application and the recall petition. It stated that the application “should include, among other things, the grounds for recall described in particular in not over 200 words.” In its recommendations to the 1976 legislature, the committee found that H.B. 2661 made the constitutional provisions for recall meaningful and prevented undue harassment of elected officials. Our current recall statutes followed the committee’s recommendation and were enacted in 1976. K.S.A. 25-4320(a)(2) provides that each petition for recall of a local officer shall include “the grounds for recall described in particular in not more than two hundred (200) words.”

Black’s Law Dictionary 1275 (4th ed. rev. 1968) defines “particular” as “Relating to a part or portion of anything; separate; sole; single; individual; specific; local; comprising a part only; partial in extent; not universal. Opposed to general,” citing State v. Patterson, 60 Idaho 67, 78, 88 P.2d 493 (1939). In Foster v. Turner, 31 Kan. 58, 1 Pac. 145 (1883), this court discussed “particular,” not general, questions of fact to be submitted to a jury. The court stated, “We think it is also true that the jury, in giving answers to ‘particular questions of fact,’ may sometimes be required to state facts themselves, to the extent of giving amounts, dates, weights, sizes, speed or velocity, time, distances, etc., . . . and perhaps sometimes of giving other facts which do not now occur to us.”

It is obvious that the legislature intended, by adopting House Bill 2661’s requirement that the grounds for recall be described in particular, that the petition for recall contain more than a general statement of the grounds for removal.

The 1976 amendment of the recall statutes requires specificity when stating the grounds for recall. The grounds stated in a recall petition must be specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office. Here, the charge is merely a general allegation that Unger and Temple violated the Open Meetings Act. Unless a particular allegation of the violation of the Open Meetings Acts is stated, Unger and Temple have no opportunity to refute the charge. The petitions for recall of Unger and Temple do not contain a clear statement of the alleged act or acts constituting the grounds for recall.

Reversed.