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CRS-2

MONTANA

NOTE: The following references refer to the Montana Recall and Advisory Recall Act, Initiative No. 73, approved by the voters of the State on November 2, 1976.

Recall

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Applicable to every person holding a public office of the state or any of its political subdivisions, either by election or appointment ($2), including U.S. Senators and Representatives ($20).

Grounds for recall any reason causing the electorate dissatisfaction with a public official, notwithstanding the official's good faith attempts to perform the duties of his office ($2).

3. Signatures required on petition - qualified electors equal to the following percentages of the number of persons voting at the preceding election: 10% (state offices/elections); 15% (county offices/ elections); and 20% (city, town, or other political subdivisions/ elections) ($4).

4. Filing provisions for elected officers, file with the official provided by law to accept the declaration of nomination or nomination petition. For appointed state, county or city or town officers, file with the secretary of state, county clerk, or city or town clerk respectively. Recall petitions for appointed officers from other political subdivisions are filed with the county clerk if the boundaries of the political subdivisions lie wholly within one county, or otherwise with the secretary of state ($6). No recall petition may be filed against an officer until he has held office for two months, or for two years against the same officer, unless the state or political subdivision(s) financing the election is first re-imbursed for all expenses of the preceding recall election ($5).

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Time of election Petitions are turned over to county clerks,
who have 15 days to verify them and return them where filed
($11). Once verified, the officer named in the petition has 5
days to resign. Otherwise, a special election is proclaimed,
unless the filing is within 90 days of a general election, in which
case the question is placed on the general election ballot ($13).

Vote necessary for recall majority of those voting on the question ($17).

Effective date of recall
officially declared ($17).

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Filling vacancy same as filling any other vacancy, except that officer recalled may in no event be appointed to fill the vacancy ($17).

Other Procedures are included for an advisory recall of United
States District Judges. These procedures are basically the same
as those discussed above; however, the results, if a recall is
favored, are forwarded to the President and U.S. Senate, and
an "Advisory Election for United States District Judge" may then
be held to recommend a replacement to the President and the
Senate (S$21-24).

CRS-4

UTAH

NOTE: The following references refer to the Utah Recall and Advisory Recall Act, approved by the electorate on November 2, 1976. Citations under #'s 1-10 refer to Art. I.

Recall

1.

Applicable to

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every public officer holding a public office, either by election or appointment ($2).

2.

3.

Grounds for recall any reason causing the voters dissatisfaction with the public official, notwithstanding his good faith attempts to perform the duties of his office ($2).

Signatures required on petition - for elected officers, 10%
(state officers), 12% (elected county officers,) or 15% (elected
city and town officers) of the entire vote cast at the last prece-
ding election for all candidates for the office which the incum-
bent sought to be removed occupies. For appointed offices,
the above percentages are based on the number of registered
voters at the last general election held in the electoral district
from which the officer was appointed ($2).

4. Filing provisions - File with the secretary of state, if for a state officer; with the county clerk, if a county officer; and with the town clerk or city recorder, if a municipal officer. If boundaries of the electoral district cross county lines, the petition is filed with the secretary of state ($5). A recall petition may not be circulated against any officer until he has held office for six months (except, for members of the legislature, the commencement point is five days from the beginning of the first session after the election). After one recall petition and election, no further recall petition may be filed against the same officer for the next two years, unless the petitioners first pay into the public treasury all expenses of the previous recall election ($4).

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Time of election - petitions are turned over to county clerks,
who have 15 days to verify them and return them where filed
($11). Once verified, the officer named in the petition has
five days to resign. Otherwise, a special election is called
($13).

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11.

(a)

Effective date of recall
officially declared ($16).

when results of special election are

Filling vacancy vacancy is filled at special recall election. Officer sought to be recalled is automatically placed on ballot, unless he requests otherwise; other candidates file nomination papers signed by at least 5% of the registered voters of the electoral district ($21). The candidate receiving the largest number of votes is declared elected for the remainder of the term ($23).

Other

Members of Congress. Prior to primary, candidates for Federal office may state whether or not they will abide by a recall election. If so, a U.S. Senator or Representative who is recalled in such an election is expected to resign when the results are known (Art. II).

(b) U.S. District Judges: Procedures are included for an advisory recall of U.S. District Judges. These procedures are basically the same as those discussed above; however, the results, if a recall is favored, are forwarded to the President and U.S. Senate (Art. III).

THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., February 25, 1977.

CONSTITUTIONAL PROBLEMS INVOLVING A NATIONAL REFERENDUM

In regard to a national referendum, it should be noted that referendums in general are the products of State constitutions which give the people the power to compel review of legislative enactments; for example, see the California Constitution, Article XVIII, as amended; Maryland Constitution, Article XIV as amended, and Ohio Constitution, Article XVI and Article II, §1c. The term "referendum" refers to the power reserved to the people in some jurisdictions to approve or reject at the polls any act of the legislature. Arkansas Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199 (1912); People ex rel, Tate v. Provost, 55 Colo. 199, 134 P. 129 (1913); Carson v. Oxenhandler, 334 S.W. 2d 394 (1960); Norris v. Cross, 25 Okla. 287, 105 P. 1000 (1909); Kadderly v. Portland, 44 Or. 118, 74 P. 710 (1903), reh. den. 44 Or. 160, 75 P. 222 (1904). Also the term encompasses the power of the people to approve or reject legislation which has been referred to them by the legislature. By the referendum the people may act to prevent an act of the legislature from becoming effective and may also reinstate an act which the legislature has expressly repealed. See, Klosterman v. Marsh, 180 Neb. 506, 143 N.W. 2d 774 (1966).

Many States have adopted referendums by amendments to their constitutions; the effect of such amendments, and of statutory provisions for referendums, is generally to place legislative powers in the legislature but to reserve to the electorate the concurrent right to propose laws and constitutional amendments and to approve or disapprove such enactments. Adams v. Bolin, 74 Ariz. 269, 247 P. 2d 617 (1952). A referendum is distinguished from an initiative in that the former is an act of legislature and the latter is an act initiated and adopted by only the people. People v. Wod, 88 Cal, App. 621, 264 P. 298 (1928). The peronly the people. People v. Wood, 88 Cal, App. 621, 264 P. 298 (1928). The pervisions granting the respective powers. State ex rel Hunzicker v. Pulliam, 168 Okla, 632, 37 P. 2d 417 (1934).

In many States the scope of the right secured to the people by the referendum has been limited by exempting certain types of enactments from its operation, such as laws necessary for the support of the State government and public institutions as well as revenue and appropriation acts. State ex rel. Hopp v. Meyers, 58 Wash. 2d 320, 363 P. 2d 121 (1961); Winebrenner v. Salmon, 155 Md. 563, 142 A. 723 (1928).

It should be noted that a referendum, as indicated in the above statements, essentially refers to the power of the people to express their approval or disapproval of legislation and not of elected officials. It does not seem that the common law concept of a referendum would encompass a referendum to determine the wishes of the electorate as to whether an elected public official should resign. The scope and the authority of a referendum rest upon constitutional and statutory provision; without these the power of referendum does not exist. The United States Constitution is silent about any national referendum; referendums have been totally left up to the power of the states to enact and regulate.

Unlike many State constitutions, the United States Constitution makes no provision for the referendum process. Under Article I, §4 even the "Times, Places and Manner of holding Elections for Senators and Representatives" to Congress are entusted initially to the differing practices and customs of the fifty States subject to Congress' prerogative of determining such matters. Congress has legislated with respect to the time of election of Senators and Representatives (2 U.S.C. §§1,7). Under Article I, §2 and the Seventeenth Amendment the States were granted the primary authority to establish qualifications for voting. Also Article II, §1 left to the States the manner of appointing presidential electors even though Congress was reserved the right to determine the time of choosing electors and the day on which they shall give their votes. In short the basic scheme of the United States Constitution was to leave much of the election process, including the referendum, to the States. However, Congress might, through its power to expend for the general welfare, make funds available to the States for the purpose of getting the sense of the people on particular matters, but there is no readily available Federal mechanism to conduct such a national referendum.

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