Oregon Advisory Opinions March 21, 1947: OAG 47-49 (March 21, 1947)

Oregon Attorney General Opinions

1947.

OAG 47-49.

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The county clerk, in passing upon the sufficiency of a petition for recall, acts purely in a ministerial capacity. He performs no judicial function and has no discretion.

The circulator of a petition for recall must verify the same by affidavit, but he need not necessarily have the qualifications of a legal voter.

Dear Sir: In your letter of the 18th instant requesting our opinion upon matters which you narrate with reference to the recall of the county judge and a county commissioner of Douglas county, you fail to state whether or not the person involved is a sponsor of the recall, or whether he is only a circulator of some of the petitions. You narrate the commission of a crime by presumably one of the circulators of the petitions, but fail to state whether there is more than one such sponsor. You ask to be advised on the following:

"An opinion is requested as to whether this recall petition or petitions are properly and legally filed, having been filed by Mr. Norris Weatherly who, in 1930, was convicted of a felony and served his time in the state penitentiary, and who has not, under the provisions of chapter 190, Oregon Laws 1945, been restored to the privileges of an elector."

You further ask:

"Would the recall filed by him, under the circumstances set forth herein, be legal and one on which the county clerk should call an election?"

You also state:

"Upon the petition against Judge Busenbark there are signers to the number of 1509. On the petition against Commissioner H. B. Roadman there are signers to the number of 1545. Among the signa- (?) pages of petition against Judge Busenbark, there are certain pages containing the names of 680 signers, which pages were verified by Norris Weatherly as to their signing in his presence, as to post-office and residence and that they are legal voters. As to petition against Mr. Roadman, there are pages containing 722 signatures, which pages are verified by Norris Weatherly as to signatures etc., being correct."

In Opinions of the Attorney General, 1926-1928, p. 462, you will find a discussion of the powers and duties of the county clerk, and to my mind it is very instructive upon the statutory require-

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ments of the clerk. I call attention particularly to this significant language:

"The presumption is that every one complies with the law, and it is presumed that each signer upon a recall petition declares by his signature that he is duly registered as required by law. Such signature is prima facie evidence that he is qualified to sign such petition."

The procedure for the recall of public officers is set out in section 18, Article II, of the constitution. It requires, among other things:

"* * * There may be required 25 per cent, but not more, of the number of electors who voted in his district at the preceding election for justice of the supreme court to file their petition demanding his recall by the people. * * *"

Section 81-2201, O. C. L. A., provides the procedure and what persons are entitled to sign and file petitions, and further provides:

"That before any petition demanding the recall of a public officer is circulated for signatures, one or more sponsors of the petition shall sign and file it with the officer who is authorized to order the recall election; * * * Legal registered voters, but no other persons, are entitled to sign and/or file recall petitions."

You will note that said section uses the language, "one or more sponsors of the petition shall sign and file it with the officer who is authorized to order the recall election".

The petition in the instant case is not before us, nor are we able to ascertain from your statement whether or not the person you mention is a circulator of the petition or a signer thereof. In the first instance, as we construe the law, he need not be a legal registered voter, but in the latter he would have to be such.

In section 81-2202, O. C. L. A., we find among other things that every recall petition shall conform to the provisions for verification of signatures on the initiative and referendum petitions required by section 81-2104. Said section 81-2104 provides:

"Each and every sheet of every such petition containing signatures shall be verified on the face thereof in substantially the following form, by the person who circulated said sheet of said petition, by his or her affidavit thereon, and as a part thereof:

"I, -----, being first duly sworn, say: That every person who signed this sheet of the foregoing petition signed his or her name thereto in my presence; I believe that each has stated his or her name, post-office address and residence correctly, and that each signer is a legal voter of the state of Oregon and county of -----.

"Subscribed and sworn to before me this ----- day of -----, A. D. 19---."

From a reading thereof it would seem that a person may not be a legally registered voter and still circulate a petition and make the statutory affidavit, which is silent as to being a legal voter.

Along that line of reasoning the case of State ex rel. Trindle v. Snell, 155 Or. 300, is instructive. In that case a 17-year old girl (who, of course, was a minor and ineligible to registration as an elector) obtained a certain number of signatures on one group of sheets, but signed none of the circulator's certificates. The certificates were made by a person who did not circulate the petitions. The court held that the signatures had been obtained by others than the person who certified them, and enjoined the secretary of state from certifying the measure proposed in a petition to the county clerks for the election.

This would imply that the circulator of the petition need not be a legal voter, provided he or she could make the verification as set out above.

In Kellaher v. Kozer, 112 Or. 149, the question before the court was the sufficiency of a requisite number of signatures certified and authenticated, and is very instructive upon this question. Mr. Justice Rand, on page 157, lays down the rule for the determination by the secretary of state of the sufficiency of signatures, and the duties of the county clerk in that connection are identical with those of the secretary of state, as follows:

"In the determination by the Secretary of State of whether a signature to an initiative or referendum petition shall be counted there are two essential requirements which must appear upon the face of the petition. The signature itself must be verified by the affidavit of the circulator and it must be authenticated by the certificate of either a county clerk or a notary public. If so authenticated and if it has the requisite number of signatures so certified to, the petition is sufficient, if the petition itself and the affidavit of the circulator and the certificate of the county clerk or of the notary public, as the case may be, substantially conforms to the requirements of the statute. In considering and counting the signatures upon an initiative or referendum petition, or in refusing to consider and count any signature thereon, and in the performance of his duties pertaining thereto the Secretary of State acts purely in a ministerial capacity. He performs no judicial function and has no

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discretion. * * * The Secretary of State, in counting the votes upon a petition, looks to the petition alone and is governed exclusively by what appears upon the face thereof. * * *" (Italics supplied)

This matter was also before the court in State ex rel. Carson v. Kozer, 105 Or. 509, wherein Mr. Justice McBride, on page 516, laid down the rule as far as applicable herein:

"I therefore have no hesitation in saying that when a petition complying substantially in form and certification with the requirements of the statute and not having any indication of fraud or falsity on its face, is presented to the Secretary of State, that officer is not required or even permitted to inquire dehors the petition as to its genuineness or as to the truth or falsity of the certificate. He must file the petition and act upon it, unless objection as to its genuine character is presented as required by Section 4098, Or. L. (Olson's Comp.). That portion of the section here applicable reads as follows:

" 'On showing that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure'." (Italics supplied)

As I understand the rule of law, where the petition appears regular and sufficient on its face, and the county clerk has authenticated a sufficient number of signers to the petition, the clerk's duty in calling an election would be purely ministerial.

If the county clerk has decided that he should not call the election then, of course, the sponsors of the petition may go into court and file mandamus proceedings against him. On the other hand, he may be enjoined from calling the election. In either event it would be for the court to determine the issues joined.

A perusal of the cited cases will indicate that where the petitions are legal and the signatures are sufficient, that of itself makes a prima facie case, and the person instituting the proceedings would have the burden of proof, if it reached the court, to show otherwise.

As far as the criminal phase of the submitted question is concerned, it does not appear to me that this phase would be the determining factor in reaching a legal conclusion. It is true that a person convicted of a felony is deprived of both civil and political rights during his imprisonment. Upon his liberation, whether the end of his sentence or whether he be on parole, his civil rights are automatically restored, but not his political rights. As I attempted to show, in my opinion a circulator of a petition would not have to be a legal registered voter---the statute does not require it. Of course, if a person, without being restored to his political rights, appears as a registered voter and one of the signers of the petition, that signature should be disregarded.

My conclusion in this matter is that the county clerk, in passing upon the sufficiency of the petition, acts purely in a ministerial capacity. He performs no judicial function and has no discretion: Kellaher v. Kozer, 112 Or. 149; State ex rel. Trindle v. Snell, 155 Or. 300, and State ex rel. v. Snell, 168 Or. 163.

It is not possible to advise the clerk what he should do under the facts as they are before me, nor would I so advise him under any circumstances. I can only point out the law as I see it, which I have tried to do, and he must apply the law to the facts before him and chart his course accordingly.