Removal from Office by Recall

Under the State Constitution, every elected public officer, except a judge of a court of record, is subject to recall.[i] Accordingly, elective officers of a county, city, code city, or town are subject to recall. The recall procedure is as follows:

1.Any legal voter of the jurisdiction, either individually or on behalf of an organization, desiring to demand the recall and discharge of any elective public officer, is to prepare a typewritten charge, naming the officer and his or her title, and charging that he or she has committed an act or acts of malfeasance or misfeasance while in office or has violated his or her oath of office, or has been found guilty of two or more of the acts specified in the State Constitution as grounds for recall.[ii] The terms are defined as follows:

• "Misfeasance" or malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;
  • Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and
  • Additionally, "malfeasance" in office means the commission of an unlawful act;
• "Violation of the oath of office" means the willful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.[iii]

The charge is to be stated "in concise language" and must give a detailed description of the act or acts alleged, including the approximate date, location, and nature of each act complained of. The petition must be signed by the person or persons making the charge, give their post office address, and be verified under oath that he, she or they believe the charge(s) to be true and have knowledge of the alleged facts upon which the stated grounds for recall are based.[iv]

2.The petition is filed with the county auditor,[v] who must promptly serve a copy of the petition upon the officer whose recall is being demanded and must certify and transmit the charge to the preparer of the ballot synopsis.[vi] (See numbered paragraph 3 below.)

3.The prosecuting attorney shall formulate a ballot synopsis of the charge within fifteen days after receipt. The synopsis must be less than 200 words and include the name of the person charged, the title of his or her office, and a concise statement of the elements of the charge. The preparer of the synopsis certifies and transmits the synopsis to the person(s) filing the charge, the officer subject to the recall, and the superior court of the county in which the officer resides. The superior court is petitioned to approve the synopsis and to determine the sufficiency of the charge(s).[vii]

4.Within fifteen days after receiving the petition, the superior court shall conduct a hearing to determine: (a) whether or not the acts stated in the charge satisfy the criteria for which a recall petition may be filed, and (b) the adequacy of the ballot synopsis. The person subject to the recall and the person demanding recall may appear at the hearing with counsel. The court's decision as to the sufficiency of the charges may be directly appealed to the state Supreme Court;[viii] the decision of the superior court regarding the ballot synopsis is final. The court shall certify and transmit the ballot synopsis to the officer subject to recall, the person demanding the recall, and the county auditor.[ix]

5.After the ballot synopsis has been issued by the court, the sponsors of the recall are to obtain and file supporting signatures within specified time limits and in a specified format, as provided by state law.[x] Required signatures are as follows:

• For the recall of a state officer, an officer of a first class city, a county officer of a county with a population of forty thousand or more, signatures of legal voters equal to 25 percent of the total number of votes cast for all candidates for the office to which the officer in question was elected at the preceding election.

For the recall of an officer of any other city, town, or county other than those mentioned above, signatures of legal voters equal to 35 percent of the total number of votes cast for all candidates for the office to which the officer in question was elected at the preceding election.[xi]

6.The signatures are to be verified and canvassed for authenticity and sufficiency by the county auditor. If the petition is found to have the required number of signatures of certified legal voters, the auditor certifies the petitions and fixes a date for a special election to determine whether or not the officer charged shall be recalled and discharged from office. The special election shall be held between 45 and 60 days from the certification.[xii]

7.The officer charged may submit to the auditor a response to the charge set out in the ballot synopsis, not to exceed 250 words, before the seventh day after service of the notice. A copy of the response is to be sent by the county auditor to the person who filed the petition.[xiii]

8.The special recall election is conducted in the same manner as other elections. The ballot form shall be as provided by statute and shall contain a copy of the ballot synopsis and the officer's response to the charge, if one has been filed. If a majority of all votes cast at the recall election are for the recall of the officer charged, he or she shall be recalled and discharged from office and the office shall become vacant.[xiv]