June v. Roberts

Decision Date29 August 1990
Citation797 P.2d 357,310 Or. 244
PartiesWilliam JUNE, Petitioner, v. Barbara ROBERTS, Secretary of State, Charles Davis, John Frewing, Glenn E. Otto, Gregory Kafoury, and Lloyd Marbet, Citizens Committee, Respondents. SC S37381.
CourtOregon Supreme Court

John R. Faust, Jr., of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the petition for petitioner.

Ann Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent Barbara Roberts, Secretary of State. With her on the answering memorandum were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

GILLETTE, Justice.

Petitioner, an elector of the State of Oregon, seeks review of a Ballot Measure Explanatory Statement. 1 Petitioner offered suggestions concerning the Statement at the hearing on the Statement held by the respondent Secretary of State 2 pursuant to ORS 251.215(2). 3 Because suggestions were made, petitioner has standing to bring this proceeding. We modify the Explanatory Statement to the extent set forth below.

The text of the Explanatory Statement is as follows: 4

"This measure would halt operations at the Trojan Nuclear Plant on December 6, 1990.

"Before Trojan is allowed to operate again, the Oregon Energy Facility Siting Council must hold a hearing and on the basis of evidence received at the hearing, make three findings.

"The first finding required before Trojan can operate is that a permanent nuclear waste disposal facility must be licensed by the Federal Government and be ready and able to accept high-level radioactive waste.

"The second finding required before Trojan can operate is that Trojan Nuclear Plant operations must be deemed cost effective.

"The third finding required before Trojan can operate is that Trojan must be able to withstand major earthquakes without harm to the public. The plant must comply with earthquake protection requirements of the United States Nuclear Regulatory Commission that are in effect when the plant begins to operate. Before making the third finding, the Energy Facility Siting Council must have an independent geologic investigation and engineering study performed to identify and evaluate all geologic faults underneath and near the plant, the potential magnitude of subduction zone earthquakes and their effect on the plant and the adequacy of the plant design to withstand major earthquakes. The operator of the power plant must pay for this study.

"This measure can be repealed only if the legislature declares an emergency need for electricity which cannot be obtained from any alternative energy source, including conservation, and the voters approve the operation of the Trojan Nuclear Plant in a referendum.

"The Nuclear Regulatory Commission and the Oregon Department of Energy have existing regulatory authority over the operation of the Trojan Nuclear Plant."

Before we consider petitioner's specific arguments with respect to this Explanatory Statement, we shall briefly review the scope of our authority concerning this subject.

Under ORS 251.215(1), an Explanatory Statement must be "impartial, simple and understandable." Under ORS 251.235, this Court reviews an Explanatory Statement to determine whether it is "insufficient or unclear." We do not resolve disputes over the meaning of the measure, but only determine whether the statement "falls short to the point of being 'insufficient.' " MacAfee v. Paulus, 289 Or. 651, 655, 616 P.2d 493 (1980). The Court is not set at large by the statutes to rewrite the statement just because the Court would write the statement differently: "In reviewing the explanatory statement, the court should not invalidate it or modify it unless its insufficiency is beyond reasonable argument." Teledyne Wah Chang Albany v. Powell, 301 Or. 590, 593, 724 P.2d 319 (1986).

It follows from the foregoing that petitioner has the laboring oar in these proceedings. In the present case, petitioner has no quarrel with the clarity of the Explanatory Statement; his sole complaint is that it is not a sufficient statement of the measure's "effect." We do not believe that petitioner has met his threshold burden of showing, beyond reasonable argument, that the statement is insufficient in its explanation of the "effect" of the proposed measure.

Petitioner argues,

"The statement is insufficient because it does not adequately state the effect of the measure. It does not state the most significant effect of the measure, which is that passage of the measure will close the Trojan Nuclear Power Plant until at least the year 2010."

To remedy this alleged defect, petitioner proposes that the second paragraph be amended by deleting the bracketed portion of the following phrase: " * * * the Oregon Energy Facility Siting Council must [hold a hearing and on the basis of evidence received at the hearing,] make three findings" and substituting for the deleted material the following words: "be able to." As a result, the second paragraph of the Explanatory Statement would read:

"Before Trojan is allowed to operate again, the Oregon Energy Facility Siting Council must be able to make three findings."

Petitioner argues that this change is necessary for the following reason:

"The central vice of the present statement is that it conveys the idea that Trojan will be closed only long enough to permit the Council to hold a hearing. In fact, the measure will close Trojan for at least 20 years. That effect is due to the fact that the first required finding cannot be made until the federal government opens a permanent nuclear waste disposal facility, and the federal government went on record in 1989 to demonstrate that it has no plans to open such a facility before at least the year 2010 * * *. The reader of the explanation would be substantially misled if he/she were to conclude that the effect of this measure will be a brief closure, lasting only long enough to conduct a hearing."

It may be true that, if a voter were to read the Explanatory Statement to the same effect that petitioner reads it, the vice of which he complains would be present. Our problem is that we do not read the Explanatory Statement that way. We find nothing that implies that the Energy Facility Siting Council hearing will be held soon, or that (when it is held) the outcome will be to relicense Trojan immediately. The only clear effect of passage of the measure would be to shut down Trojan. The Explanatory Statement says that. Any speculation as to when (if ever) Trojan would be permitted to start up again would be just that--speculation. The committee that prepared the Explanatory Statement was correct to avoid such speculation.

Petitioner would amend the third paragraph of the...

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9 cases
  • Dudley v. Jenks
    • United States
    • Oregon Supreme Court
    • September 8, 2000
    ...challenge an explanatory statement bear the burden of demonstrating that the statement is insufficient or unclear. June v. Roberts, 310 Or. 244, 248, 797 P.2d 357 (1990). That burden is a significant one. This court has "The statutes call for the committee to be composed of two proponents o......
  • Lewis v. Keisling
    • United States
    • Oregon Supreme Court
    • September 6, 1994
    ...not impartial or if it is "potentially misleading." Homuth v. Keisling, 314 Or. 214, 220, 837 P.2d 532 (1992). See also June v. Roberts, 310 Or. 244, 797 P.2d 357 (1990) (same); Sollis v. Hand, 310 Or. 251, 796 P.2d 1188 (1990) In my view, the Explanatory Statement for Ballot Measure 13, 1 ......
  • Novick v. Bradbury, (SC S47796)
    • United States
    • Oregon Supreme Court
    • September 8, 2000
    ...or unclear"). Petitioner bears the burden of demonstrating that the explanatory statement is insufficient or unclear. June v. Roberts, 310 Or. 244, 248, 797 P.2d 357 (1990). Petitioner's argument arises out of the following paragraph of the "Appropriations for state government expenditures ......
  • Sizemore v. Myers
    • United States
    • Oregon Supreme Court
    • September 8, 1998
    ...to determine whether the explanatory statement contains a sufficient and clear statement explaining the measure. See June v. Roberts, 310 Or. 244, 247, 797 P.2d 357 (1990) (court reviews explanatory statement to determine whether it is "insufficient or unclear"); ORS 251.235 (a petition to ......
  • Request a trial to view additional results

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