June v. Roberts
| Decision Date | 30 December 1988 |
| Citation | 767 P.2d 70,307 Or. 270 |
| Parties | William JUNE, Petitioner, v. Barbara ROBERTS, Secretary of State, Respondent. SC S35709. |
| Court | Oregon Supreme Court |
John R. Faust, Jr., Portland, argued the cause for petitioner. With him on the petition was Schwabe, Williamson & Wyatt, Portland.
John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the answering memorandum were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
By order of the court, Gregory Kafoury, Portland, and Lloyd Marbet, Boring, filed memoranda and argued the cause as intervenors pro se. Gregory Kafoury filed a memorandum of additional authority.
Before PETERSON, C.J., and LINDE, CARSON, JONES, GILLETTE and VAN HOOMISSEN, JJ.
This original proceeding concerns a challenge to a ballot title for a proposed initiative measure. 1
The Attorney General certified the following ballot title to the Secretary of State:
Petitioner seeks a different ballot title, ORS 250.085(2), contending that the ballot title certified by the Attorney General "does not substantially comply with the requirements of ORS 250.035."
Petitioner correctly states the standard of review--this court reviews ballot titles for "substantial compliance" with the requirements of ORS 250.035. 2 ORS 250.085(4). Reed v. Roberts, 304 Or. 649, 652, 748 P.2d 542 (1988). ORS 250.035 establishes three requirements for a ballot title:
(1) A caption that reasonably identifies the subject of the measure;
(2) A question that plainly phrases the chief purpose of the measure; and
(3) A concise and impartial statement (i.e., an explanation ) that summarizes the measure and its major effect.
Keeping in mind the scope of review and the requirements of ORS 250.035, we turn to petitioner's arguments concerning the Caption, Question, and Explanation of the ballot title certified by the Attorney General.
As was stated, the Caption must "reasonably [identify] the subject of the measure." ORS 250.035(1)(a). Petitioner argues that the Trojan Nuclear Power Plant (TNPP) is the subject of the proposed measure and that the Caption fails to identify the subject because "Trojan" may be understood to refer to a college football team, a "leading condom," or a number of businesses. Petitioner also argues that the measure sets forth "conditions," as opposed to "standards," for continued operation of TNPP and that "conditions" should replace "standards" in the Caption.
Even a cursory review of the proposed measure discloses that TNPP is, in part, the subject. But the findings that must be made to allow TNPP to operate also constitute the subject. Section 2(1) of the measure provides that "[n]o nuclear fueled thermal power plant, including the Trojan Nuclear Power Plant, shall be allowed to operate in Oregon" until findings relating to nuclear waste, cost-effectiveness, and earthquakes are made by the Energy Facility Siting Council (EFSC). The Caption must reasonably identify TNPP and these findings.
This the Caption does. It immediately identifies TNPP with the words "TROJAN OPERATION." If confusion exists about whether "TROJAN OPERATION" refers to operation of a nuclear power plant, a football team, a condom, or a business, the ensuing reference to "NUCLEAR WASTE" eliminates that confusion.
Concerning the use of "STANDARDS," the word may be imprecise to identify the content of the findings EFSC must make. "Standards" refers to rules for measuring quantity, quality, weight, extent, or value. See Webster's Third New International Dictionary 2223 (1971). Although Section 2(1) of the measure in part sets forth such rules, the measure more accurately may be identified as setting forth "conditions" EFSC must find to allow TNPP to operate. "Standards" does convey, however, the import of the content of the required findings, particularly when included in the phrase "NUCLEAR WASTE, COST, EARTHQUAKE STANDARDS." The Caption does not fail for using "standards" even though "conditions" may be a better word.
"Conditions" was used in the Caption of an earlier ballot title for a measure substantially similar to the one before us. In Kafoury v. Roberts, 303 Or. 306, 736 P.2d 178 (1987), this court approved the Attorney General's use of "conditions" in the Caption. The earlier approval does not tie our hands, however, because this court also recognized in Kafoury that there is more than one way to skin a ballot title. See Kafoury v. Roberts, supra, 303 Or. at 312-13, 736 P.2d 178 (). The Attorney General has certified a Caption that substantially complies with ORS 250.035(1)(a), and that is all we must and do conclude.
The Question must "plainly [phrase] the chief purpose of the measure." ORS 250.035(1)(b). Petitioner argues that the chief purpose is "to prohibit the generation of electricity at Trojan" and that the question must "make that plain." (Emphasis in original.)
Petitioner incorrectly identifies the chief purpose of the proposed measure. Section 2(1) of the measure requires EFSC to make certain findings before TNPP will be "allowed to operate." Requiring EFSC to make certain findings relating to safety constitutes the chief purpose of the measure. If the proposed measure becomes law, generation of electricity will be prohibited at TNPP until EFSC makes those findings, but that is an effect, and not the chief purpose, of the measure. Cf. June v. Roberts, 301 Or. 586, 589, 724 P.2d 267 (1986) ().
Accordingly, the Question certified by the Attorney General substantially complies with ORS 250.035(1)(b).
The Explanation must summarize "the measure and its major effect." ORS 250.035(1)(c). Petitioner objects to the use of two words in the Explanation certified by the Attorney General: (1) "Suspends," which petitioner argues creates a misleading impression (petitioner argues that "prohibits" would be more appropriate); and (2) "unless," which petitioner argues should be replaced by "until." Petitioner argues that " 'unless' misleads by suggesting a present possibility of compliance" with the findings required by Section 2(1) of the proposed measure.
"Suspends" does not create a misleading impression--the major effect (as opposed to the chief purpose) of the proposed measure would be to halt indefinitely, until the conditions stated in Section 2(1) were satisfied, the generation of electricity at TNPP. Cf. June v. Roberts, supra.
As regards the use of "unless," "until" is preferable to "unless" because "until" is used in Section 2(1) of the measure. Whether TNPP will not be allowed to operate "until" or "unless" the findings required by Section 2(1) are made, however, the meaning is the same or nearly the same. The difference does not amount to failure substantially to comply with ORS 250.035(1)(c).
The ballot title certified by the Attorney General is approved and certified to the Secretary of State.
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