Oregon Advisory Opinions October 07, 1975: OAG 75-78 (October 7, 1975)
Collection: Oregon Attorney General Opinions
Docket: OAG 75-78
Date: Oct. 7, 1975
Advisory Opinion Text
OAG 75-78.
Must the signatures on a petition for recall of a county commissioner be verified prior to the filing deadline?
ANSWER GIVEN
No.
The issue involved in this question is very complex and therefore we will first provide a brief sketch of the law as it has evolved in recent years to its present status.
For many years prior to 1973, signatures on recall, initiative and referendum petitions were verified first by the circulators and then by the county clerk as names were submitted from day to day. For a recall, it was required that this be completed within 90 days after a preliminary petition was filed. In 1973, the legislature repealed this procedure and instead provided that all petitions be verified by random sampling of signatures within
24-hours after the deadline. To make scientific sampling possible it was required that all signatures be submitted at one time.
In 1975 the law was amended to provide that only signatures on petitions containing more than 50,000 names be verified by the sampling-after-deadline method. As for other recall petitions, except for certain offices not relevant here, there was no specific statutory requirement for verification because the 1973 repeal of the old procedure had left any verification of signatures (other than by circulators) dependent on the sampling-after-deadline method, and that method no longer applied to petitions (as far as relevant here) of 50,000 names or less.
In a similar situation earlier in the state's history, the Oregon Supreme Court said it is the duty of the filing officer (here, the county clerk)(fn1) to examine the petition as to the validity of signatures. We conclude that the same duty would be held to apply today, that it should be discharged as quickly as possible after the petition is filed, and that it is consistent with state law for the county clerk to employ a sampling method.
From here, we proceed to the details.
ORS 254.042, as amended by Oregon Laws 1975, ch 627, § 1, provides:
"(1) Every sheet of each initiative or referendum petition containing signatures shall be verified on the face thereof by the signed statement of the person who circulated the sheet, stating that every person who signed
the sheet did so in his presence and that he believes that each signer stated his correct residence address and is a registered elector.
"(2) The Secretary of State shall use a statistical sampling technique or techniques for the verification of signatures for initiative, referendum or recall petitions provided for by the Constitution and laws of this state.
"(3) Any petition relating to any state legislative Act, state law, or amendment to the Oregon Constitution or any other petition containing more than 50,000 signatures filed as provided by law with a filing officer other than the Secretary of State shall be submitted by such filing officer to the Secretary of State not later than 24 hours after the deadline for filing the petition, for the purpose of verification of signatures. Notwithstanding any provision of law providing for the filing of such a petition with a filing officer other than the Secretary of State, such petition may be filed directly with the Secretary of State for the purpose of verification of signatures.
"(4) Subsection (3) of this section does not apply to a city that provides by ordinance or charter for a manner of exercising the initiative and referendum powers as to its municipal legislation, as permitted by subsection (5) of section 1, Article IV, Oregon Constitution and ORS 254.130, unless such city elects to follow the procedure of subsection (3) of this section.
"(5) An initiative, referendum or recall petition shall not be accepted for filing unless the petition contains not less than 100 percent of the required number of signatures of legal voters.
"(6) The Secretary of State may employe professional assistance in determining the sampling techniques and he shall promulgate administrative rules detailing the techniques to be used." (emphasis supplied)
The emphasized portion was added by the 1975 amendment. As originally enacted in 1973, subsection (3) of the statute applied to "Any petition filed as provided by law with a filing officer
other than the Secretary of State. . ." and thus included all recall petitions for county officials because the county clerk is the "filing officer." Art II, § 18, Oregon Constitution; ORS 249.020(3).
ORS 254.420(1) provides:
"Every recall petition shall be void unless completed and filed on or before the 90th day after filing the original petition and itemized statement mentioned in ORS 254.410."
It follows that, as ORS 254.042 was enacted in 1973, signatures in no case were required to be verified prior to the 90-day deadline because the petition was to be submitted to the Secretary of State for verification of signatures within 24 hours after the deadline.
But now a recall petition for a county officer, with no more than 50,000 signatures, no longer comes under the late verification procedure provided in ORS 254.042.(fn2) We are informed that 32,000 plus valid signatures would be required in the case giving rise to this question.
It has been suggested that signatures on such a petition not subject any longer to ORS 254.042(3) must be verified by the county clerk prior to the 90-day deadline, as was the procedure in such
cases prior to the 1973 law.(fn3) See Kays v. McCall , 244 Or 361, 418 P2d 511 (1966). In fact, we have been advised that it was generally assumed by the supporters of the 1975 amendment of ORS 254.042 that the pre-1973 procedure would be required of petitions to be excluded from subsection (3).
In support of this suggestion, it is pointed out that, upon filing of a recall petition not covered by ORS 254.042(3), the officer against whom it is directed would not otherwise know whether the petition is valid, and thus whether or not he must resign within 5 days if he wishes to avoid a recall election. The county clerk would not know whether he is required to call an election within 20 days thereafter. These time periods are specified by Article II, Section 18 of the Oregon Constitution. An analogy is drawn to language in Kays v. McCall , supra , pointing to the difficulties to be encountered if verification by a time certain were not required in the case of an initiative petition:
"The purpose of the constitutional deadline would then be vitiated since it would not be possible to determine whether the petition was valid until some indefinite time after the deadline. By this reasoning the Director of Elections might not know whether the petition was valid until the very eve of the election. This could produce an intolerable situation because the Director of Elections might not be able to make the necessary preparations for putting the issue on the ballot, which is the very purpose of the constitutional deadline." 244 Or at 367-368.
However, in the Kays case, the court was interpreting a statute requiring verification. Here, there is no escaping the fact that the former statute requiring verification of signatures before the deadline, former ORS 254.040, was repealed when ORS 254.042 was enacted in 1973. There is no applicable verification statute.
We must here analyze ORS 254.420(2) as amended by Oregon Laws 1975, ch 627, § 2 which provides:
The emphasized portion was added by the 1975 amendment."(2) All provisions for verification of signatures on the initiative and referendum petitions required by ORS 254.042 are applicable and required for the verification of signatures on recall petitions. When the recall petition relates to a State Senator, State Representative, circuit judge or district judge, the petition shall be filed first with the county clerk for verification of signatures of residents of that county ." (emphasis supplied)
As for the first sentence, although "All provisions for verification" necessarily in 1973 included both subsections (1) and (3) of ORS 254.042, a petition for recall of a county official, containing no more than 50,000 signatures, clearly is no longer subject to subsection (3). This is so by a simple reading of the statute even though an earlier form of the amendment would have specifically qualified the reference to ORS 254.042 by saying "subsections (1) and (5) of" that statute. This was at a time when no recall petitions of whatever size, were to come under the procedure in subsection (3) of the statute.(fn4)
The second sentence, added in 1975, specified that petitions for recall of certain state officers be "first" filed with the county clerk for verification on the assumption, we are advised, that a petition for recall of any of those officers would probably never contain more than 50,000 signatures. In that case, however, the petition would not be verified under subsection (3) of ORS 254.042 anyway, although the recall petition must ultimately be filed with the Secretary of State because he is the filing officer for the offices listed, and recall petitions must be filed with the filing officer appropriate to the office. Art II, § 18, Oregon Constitution; ORS 249.020(3). The sentence in any event has the effect of requiring that signatures on recall petitions for the named officers must be verified.
But there is no requirement that signatures on recall petitions for county officers containing no more than 50,000 signatures be verified other than by the circulators, no matter what the assumption of the supporters of the 1975 amendment of ORS 254.042. The warning expressed in Kays , quoted supra , cannot be used to add a procedural step no longer provided by law, no matter how desireable such a law would be. The only verification required is that of the circulators provided in ORS 254.042(1).
This is not the first time that state law has failed to require any verification of petition signatures beyond that of the circulators. In fact, the recall provision in the Oregon Constitution, Art II, § 18, stood for years before it was supplemented by any
legislation, yet was held to be self-executing in State v. Harris , 74 Or 573, 144 P 109 (1914).
After the initiative and referendum were first written into our constitution, the legislature enacted Oregon Laws 1903, p 245, § 3, requiring the county clerk to verify signatures. The 1903 law was repealed in 1907 and replaced by Oregon Laws 1907, ch 226, § 3, requiring verification instead by the circulators. Apparently, this was done because the county clerks found the chore of verifying signatures burdensome.(fn5)
For ten years, until the county clerk's role was reinstated by Oregon Laws 1917, ch 176, § 1, the only verification of signatures was by the circulators. In two cases during that period, the Oregon Supreme Court presented conflicting views on the question of by whom, and to what extent, the validity of signatures, although verified by circulators, may be challenged.
In State ex rel McNary v. Olcott , 62 Or 277, 279, 125 P2d 303 (1912) the court in construing its own power under ORS 254.050, repealed in 1957 (then LOL 3474) used the following rationale:
". . . It is conceded that there is no power granted to the Secretary of State to call witnesses and examine into the facts to determine the validity of any petition. These powers are not judicial, but are ministerial and if this power does not reside in the courts a petition, consisting wholly of
forged names, can be presented, and the public put to the expense of printing the measure and submitting it to a vote. . . ."
The next year, in State ex rel Hill v. Olcott , 67 Or 214, 221, 135 P 95, 135 P 902 (1913), the court, after dismissing some irregularities in a petition, said that in doing so it was
". . .influenced in this conclusion by the fact that it is the duty of the defendant [Secretary of State] in his official capacity to determine in the first instance, by an inspection of the petition, whether or not the signatures are genuine and are regularly authorized. . . "
We take the latter statement to prevail, and conclude that the county clerk has an inherent obligation to satisfy himself that a petition is proper (where it will not otherwise be verified under ORS 254.042(3)) and that this should be done as quickly as possible. We do not conclude that every signature must be checked; a sampling method could be employed, for example. (This is at least inferentially permitted by ORS 254.042(2), authorizing the Secretary of State to use sampling techniques, since ORS 254.420(2) can be interpreted to require other filing officers to verify recall petitions in the same manner as the Secretary of State does for petitions filed with him. We also note the Secretary of State's authority to adopt regulations, and sampling techniques, (See ORS ch 246; ORS 254.042(6)) authorize him to specify techniques which should be used by county clerks.) The unfortunate results regarding the constitutionally set time periods for resignation or election must be endured until legislation fills the void with a deadline for verification.
Footnotes:
1 Or other officer performing the function of registrar of elections.
2 We have not overlooked the fact that the word "recall" unqualifiedly remains in subsection (2) of ORS 254.042. However, this is clearly because the word was simply overlooked in drafting the 1975 amendment. See A-Engrossed House Bill 2262, which contains the first version of what eventually became Enrolled House Bill 2888 (chapter 627), where it was proposed to remove all recall petitions from the procedure provided in ORS 254.042; the word "recall" in ORS 254.042, otherwise amended, remained untouched.
3 In Oregon Laws 1967, ch 141, § 3 and 4 (codified as ORS 254.045) an additional 15 days was provided for verification of signatures on initiative and referendum petitions, but this did not extend to recall petitions.
4 See fn 2.
5 Barnett, "The Operation of the Initiative, Referendum and Recall in Oregon", The Macmillan Company, 1915, p 70.