MacAfee v. Paulus

• Decision Date: 11 September 1980
• Citation: 616 P.2d 493,289 Or. 651
• Parties: James J. MacAFEE, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. OREGONIANS FOR WILDLIFE CONSERVATION, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. SC 27201, SC 27205.
• Court: Oregon Supreme Court

Page 493

616 P.2d 493

289 Or. 651

James J. MacAFEE, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent.

OREGONIANS FOR WILDLIFE CONSERVATION, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent.

SC 27201, SC 27205.

Supreme Court of Oregon.

Argued and Submitted Aug. 26, 1980.

Decided Sept. 11, 1980.

James J. MacAfee, Monmouth, argued the cause pro se.

David A. Rhoten, of Rhoten, Rhoten & Speerstra, Salem, argued the cause for Oregonians for Wildlife Conservation.

Wm. F. Gary, Asst. Atty. Gen., Salem, argued the cause for respondent.

Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON ^* and TANZER, JJ.

PER CURIAM.

Petitioner brought an original proceeding in this court under ORS 251.235 to challenge the explanation of a ballot measure prepared for use by the Secretary of State in the Voters' Pamphlet and suggested an amendment. ORS 251.185. ¹ Subsequently a second petitioner filed a petition proposing a contrary amendment of the explanatory statement. After the oral argument, we certified the statement as written to the Secretary of State.

The statutes provide the following procedures for the preparation and review of statements explaining initiated or referred state measures in the Voters' Pamphlet.

Preparation. A committee is selected, composed of two persons appointed by the proponents of the proposed action, two persons appointed by the Secretary of State "from among the opponents, if any," and a fifth member selected by the other four or, if they do not do so, by the Secretary of State. ORS 251.205. ² The committee's assignment is to "prepare and file with the Secretary of State, an impartial, simple and understandable statement explaining the measure and its effect." ORS 251.215(1). The Secretary of State must conduct a hearing, after statewide notice to provide opportunity for written or oral submission of suggested changes in the explanatory statement. ORS 251.215(2). If such suggestions are submitted, the committee must consider them and may revise the explanatory statement. ORS 251.215(3). If the committee fails to submit an explanatory statement, a statement prepared by the Legislative Counsel Committee is substituted under the same procedures. ORS 251.225. Apart from the official explanatory statement, there are provisions for printing arguments for and against a measure in the Voters' Pamphlet. ORS 251.245-ORS 251.275.

Judicial review. ORS 251.235 provides for review of explanatory statements by this court in these terms:

"Any person dissatisfied with an explanatory statement for which suggestions were offered at the Secretary of State's hearing under ORS 251.215, may petition the Supreme Court seeking a different statement and stating the reasons the statement filed with the court is insufficient or unclear. If the petition is filed not later than the fifth day after the deadline for filing a revised statement with the Secretary of State, the court shall review the statement hear arguments and certify an explanatory statement to the Secretary of State. The review by the Supreme Court shall be conducted expeditiously to insure the orderly and timely conduct of the election at which the measure is to be submitted to the voters. The statement certified by the court shall be the explanatory statement printed in the voters' pamphlet."

This section requires attention to two issues. First, petitioner MacAfee suggests that we should not consider the counter-petition of Oregonians for Wildlife Conservation because that petitioner did not first make his objections at the Secretary of State's hearing on the explanatory statement. However, as ORS 251.235 is written, it merely requires that the challenged explanatory statement be one "for which suggestions were offered" at the hearing. The opening words "Any person . . ." do not limit petitions in this court to persons who offered such a suggestion at the hearing.

Second, the section requires a petitioner to state the reasons why the proposed explanatory statement is "insufficient or unclear." These adjectives are not quite the same as those describing the duty of the committee, which is to prepare an "impartial, simple and understandable statement explaining the measure and its effect." ORS 251.215. These criteria obviously overlap, but they are not identical. A statement will be "unclear" if it is not "understandable." A clear but complicated explanation of a complicated measure is hard to fault as "insufficient." But a good faith effort to keep a statement "simple" may render it "insufficient" by omission or oversimplification. Moreover, when a measure itself is unclear and subject to contested interpretations, a statement that purports to give the voter a clear explanation of "the measure and its effect" may not be "impartial." If a committee finds itself in genuine and serious doubt about a measure's meaning and effect, the impartial and understandable, if not simple, answer may be to say so and let the argumentative pages of the Voter's Pamphlet argue the point.

In any event, we do not believe that ORS 251.235 meant to call on this court to settle disputes over the meaning of a measure in reviewing and certifying explanatory statements, especially since Voters' Pamphlet statements in turn become "legislative" history when that meaning later is disputed by persons affected by the measure in a concrete case. At this stage, the court's scrutiny goes only so far as necessary to determine, not whether a more detailed or comprehensive explanatory statement might have been written, but whether the committee's statement falls short to the point of being "insufficient."

The present dispute. In the present case, there is a disagreement whether or not two sections of an initiative measure render its eventual effect doubtful. The measure proposes to license and for most purposes to forbid the sale or use of certain animal traps. Permits by the State Department of Agriculture could be issued to trap...