Bernard v. Keisling

• Decision Date: 07 October 1993
• Parties: Rhonda BERNARD, Petitioner, v. Phil KEISLING, Secretary of State, Respondent. SC S40549.
• Court: Oregon Supreme Court

Page 1309

858 P.2d 1309

317 Or. 591

Rhonda BERNARD, Petitioner, v. Phil KEISLING, Secretary of State, Respondent.

SC S40549.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Sept. 14, 1993.

Decided Oct. 7, 1993.

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

Robert B. Rocklin, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the answering memorandum were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

VAN HOOMISSEN, Justice.

In this original proceeding, petitioner challenges a ballot title certified by the Attorney General to the Secretary of State. See ORS 250.085(2) (providing procedure). Pursuant to ORS 250.067(1), petitioner had submitted to the Secretary of State timely written comments on the earlier, proposed ballot title and, therefore, is entitled to bring this challenge to the certified ballot title. ORS 250.085(2). On review, we approve the ballot title certified by the Attorney General.

The operative section of the proposed initiative measure provides as follows "Chemical Process Mine License Fee

"(1) Every person who engages in or carries on the business of working or operating any chemical process mine or mining property in the state of Oregon from which gold, silver, copper, lead, or any other metal or metals of any kind shall be mined, extracted, or produced, whether such person shall carry on such business or engage in such work or operations as owner, lessee, trustee, possessor, receiver, or any other capacity, must for each year when engaged in or carrying on such business, work, or operations pay to the Oregon Department of Revenue for the exclusive use and benefit of the state of Oregon a license fee for engaging in and carrying on such business, work, or operations in this state.

"(2) The annual license fee to be paid by a person engaged in or carrying on the business of working or operating any chemical process mine or mining property in this state from which gold, silver, copper, lead, or any other metal or metals are produced shall be an amount computed on the gross value of product which will be derived by the person from mining business, work, or operation within this state. The chemical process mine license fee shall be collected quarterly, in advance, based on an estimate of the gross value of product as follows:

"Gross Value Fee

of Product (Percentage of gross value)

"First $250,000 0%

more than $250,000 2.0%

"(3) Chemical process mine license fees collected under the provisions of this part are allocated as follows:

"(a) to the state Habitat Conservation Fund of the Resource Conservation Sinking Fund pursuant to ORS 468.664 for habitat protection and restoration, 75% of total collections each year; and

"(b) to a Mining Community Impact Trust Fund, to be established and administered by the Oregon Department of Economic Development for community grants for infrastructure needs and to mitigate rapid unemployment and other social changes associated with closure of chemical process mining operations, as identified by the socioeconomic impact analysis prepared pursuant to ORS 517.980, 25% of total collections each year."

The Attorney General certified the following ballot title to the Secretary of State for that proposed initiative measure:

"AMENDS CHEMICAL PROCESS MINING LAWS: ADDS REQUIREMENTS,

PROHIBITIONS, STANDARDS, FEES

"Question: Shall chemical process mining laws be amended, adding operating and reclamation requirements, banning certain practices, imposing fees, ending tax credit?

"Summary: Amends chemical process mining laws. Bans chemical releases into environment. Requires using best readily obtainable technology, including liner and leak detection systems. Adds to wildlife protection requirements. Adds to mine reclamation standards, including backfilling of open pits with detoxified materials. Bans 'in situ' mining. Bars permit unless applicant has satisfactory compliance with closure history with other operations. Operator's bond must cover perpetual site care, monitoring. Repeals pollution control tax credit for chemical process mines. Imposes mineral extraction fee, used for habitat protection, mining community grants."

Under ORS 250.085(4), we review ballot titles for substantial compliance with the requirements of ORS 250.035 and 250.039. ¹ Petitioner argues that the Caption does not reasonably identify the subject of the measure and that the Question does not plainly phrase the measure's chief purpose, in that both refer to "fees" rather than to "taxes." Petitioner asserts that, because the measure imposes a revenue requirement designed to raise money for public purposes and not for the costs of regulation, the measure would impose a tax on extractions, not a fee. Petitioner asks this court to modify the Caption and Question by substituting the word "taxes" for the word "fees" in the Caption and Question of the ballot title. Petitioner does not challenge the Attorney General's proposed Summary.

The Attorney General argues that the words of the measure consistently refer to the imposition of a license "fee" and that this court has held that, generally, and in the absence of a compelling reason to the contrary, the Attorney General should use the words of the measure. See Sampson v. Roberts, 309 Or. 335, 340, 788 P.2d 421 (1990) (so holding). Petitioner responds that this court's holding in Sampson does not apply to the Caption and Question of a ballot title, but only to the Summary. Having made that response, however, petitioner advances no argument as to why the rule should be different for different parts of the ballot title, and we can think of none.

The Attorney General further argues that the question whether the proposed measure imposes a "fee" or a "tax" calls for interpretation of the measure, and a ballot title challenge is not the appropriate forum for deciding legal issues requiring interpretation of a proposed measure. This court has held that, if a measure is enacted into law, the court may later be required to decide the meaning and significance of words used in the measure and, therefore, that it generally is inappropriate for the court to do so in a ballot title proceeding. Hand v. Roberts, 309 Or. 430, 438, 788 P.2d 446 (1990) ("This court * * * assiduously attempts to avoid deciding questions of interpretation of the practical effect of initiative * * * measures in its review of a certified ballot title."); Aughenbaugh v. Roberts, 309 Or. 510, 516, 789 P.2d 656 (1990) (same); Sampson v. Roberts, supra, 309 Or. at 339, 788 P.2d 421 (same).

Petitioner relies primarily on Automobile Club v. State of Oregon, 314 Or. 479, 489, 840 P.2d 674 (1992) (underground storage tank assessment and motor vehicle emission fee were "taxes" for purposes of constitutional provision requiring that motor vehicle revenues and...