Rogers v. Roberts
| Decision Date | 01 April 1986 |
| Citation | 717 P.2d 620,300 Or. 687 |
| Parties | B.J. ROGERS, Ken Pfaff and Roy Durham, Petitioners, v. Barbara ROBERTS, Secretary of State, Respondent. SC S32591. |
| Court | Oregon Supreme Court |
Richard T. Ligon, Wilsonville, argued the cause and filed the memorandum for petitioners.
John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause and filed the answering memorandum for respondent. With him on the answering memorandum were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol.Gen., Salem.
This is an original proceeding to review a ballot title. A prospective petition to initiate a constitutional amendment was filed with the respondent Secretary of State. The entire text of the proposed amendment is attached as Appendix A.
As a preliminary step, the Attorney General submitted a draft ballot title for the proposed amendment to the Secretary of State, which is attached as Appendix B. ORS 250.065(3). Written comments on the draft ballot title were received by the Secretary of State from two of the petitioners and two members of the public. ORS 250.067(1). 1 The Attorney General considered the written comments and certified to the Secretary of State the following revised ballot title:
The petitioners, who are also the chief petitioners of the proposed amendment, filed a petition in this court requesting that we review the above revised ballot title certified by the Attorney General. This court's scope of review is defined in ORS 250.085(4):
"(4) The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State."
ORS 250.035 sets out the form of the ballot title as follows:
The petitioners have not challenged the readability of the Attorney General's revised ballot title under ORS 250.039. 2 The petitioners contend that because they comprised a part of the measure's drafting committee they, better than anyone else, know the "true intent and purpose" of the measure. The problem, however, is not what the drafters intended, but how to craft a ballot title which in a few words accurately informs the voter of the "subject matter" and "purpose" of the proposed measure and contains a somewhat longer statement setting out the "chief purpose" of the measure.
The petitioners argue that the ballot title certified by the Attorney General is unfair because "it will mislead the reader by focusing on a theme of stripping the government of its ability to govern" when "the purpose of the measure in fact is to enhance individual private property rights and require state leaders to protect these rights by economically compensating the owner if governmental action reduces the property value."
The petitioners propose the following ballot title:
As an alternative, the petitioners support the Attorney General's first draft, which is attached as Appendix B.
The Attorney General argues that the certified ballot title submitted to the Secretary of State meets the substantial compliance test required by ORS 250.085(4). The substantial compliance test as to ballot titles was adopted by the Oregon Legislature by 1985 Oregon Laws, chapter 447, effective September 20, 1985. 3
Although this court has many times 4 used the term "substantial compliance," we have never attempted to define it. Courts from other jurisdictions have attempted to define "substantial compliance" as it pertains to statutes. By the nature of the beast it can be defined in only general language. We agree with the broad definition used by the Kansas Supreme Court: "Substantial compliance requires compliance in respect to the essential matters necessary to assure every reasonable objective of the statute." Sabatini v. Jayhawk Construction Co., Inc., 214 Kan. 408, 411, 520 P.2d 1230 (1974); see also City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983); Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J.Super. 129, 169, 382 A.2d 413 (1977). We also agree with the Washington Court of Appeals when it said: "What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case." In re Santore, 28 Wash.App. 319, 327, 623 P.2d 702 (1981).
The revised ballot title submitted by the Attorney General does not substantially comply with the requirements of ORS 250.035. It does not correctly identify the subject matter or accurately state the chief purpose of the proposed measure. Both are essential matters which must be correctly described to assure the objective of the statute.
The major problem with the revised ballot title which the Attorney General certified is the use of the terms "banning," "banned" and "bans." One dictionary definition of "ban," in the context that it is used in the ballot title, is "prohibit by legal means." Webster's Third New International Dictionary 169 (1971).
The use of the term "banning" in the caption of the revised ballot title does not accurately identify the subject matter of the proposed measure. The relevant part reads, "BANNING MOST PROPERTY USE REGULATION." The measure does not ban or prohibit any property use regulation. What it in effect prohibits is the taking by the government of the value or rights of the owner of private property by zoning or regulation which is not essential to public health and safety without the payment of just compensation. The government can continue to zone or regulate a private owner's property for purposes not essential to public health and safety, but must pay just compensation if the value of the property is reduced. The result of this measure may be that the government will find zoning and regulation too expensive and cease the practice. That is speculation. The ballot title should not include speculation as to the result or consequences of the measure. Christenson v. Paulus, 297 Or. 78, 80, 682 P.2d 266 (1984). The use of the term "banned" in the question and use of "bans" in the explanation of the revised ballot title are not an accurate description of the proposed measure for the same reasons.
The chief purpose of the measure proposing the constitutional amendment is set out in sections (2), (3), (4) and (8). See Appendix A. A paraphrase of the chief purpose is as follows:
Taking any of the value or rights of private property by regulation, zoning, ordinance, assessment legal stratagem, or police power for any purpose which is not essential to public health and safety is prohibited without just and equitable compensation based on the current fair market value of the property taken at its highest and best use at the time of taking. A taking occurs when any governing body, public entity, organization or person appreciably diminishes, damages, deprives or expropriates the rights of any owner of private property. The taking of real property shall be in fee simple. The governing body of each city and county shall have authority over all matters pertaining to planning and zoning, and state standards and goals shall be advisory.
An example demonstrates the chief purpose. If the government by passing zoning regulation reduces the value of a piece of land by 25 percent, then it is required to pay the owner the full fair market value for the fee simple title to the land.
The above paraphrase contains 124 words. The problem is to condense it to 75 words for a statement of purpose. We are also required to find 10 words which correctly identify the subject matter and 20 words for a proper question.
We certify the following ballot title:
To continue reading
Request your trial
-
Oregon Educ. Ass'n v. Phillips
...the effect of the law. * * * "State ex rel. Fidanque v. Paulus, supra, 297 Or. at 721, 688 P.2d 1303.3 See, e.g., Rogers v. Roberts, 300 Or. 687, 717 P.2d 620 (1986) (Lent, J., concurring) (sponsors' stated purpose cannot override what their chosen language would accomplish); State v. Quinn......
-
Conaway v. State
...in respect to the essential matters necessary to assure every reasonable objective of the statute"); Rogers v. Roberts, 300 Or. 687, 717 P.2d 620, 622 (1986) (en banc) ("compliance in respect to the essential matters necessary to assure every reasonable objective of the statute"); Radtke v.......
-
Williams v. Clark County Dist. Atty.
...may be supplemented with further affidavits). 12. See, e.g., Orr v. Heiman, 270 Kan. 109, 12 P.3d 387, 389 (2000); Rogers v. Roberts, 300 Or. 687, 717 P.2d 620, 622 (1986); Baker v. Atkinson, 625 N.W.2d 265, 272 (S.D.2001). 13. See Cirac v. Lander County, 95 Nev. 723, 731, 602 P.2d 1012, 10......
-
McComas v. Employment Dept., AB-1392
...necessary to assure every reasonable objective of the statute" and depends on the particular facts of each case. Rogers v. Roberts, 300 Or. 687, 691-92, 717 P.2d 620 (1986). Applying those principles, we agree with the Board that the "purpose of the notice requirement of ORS 657.269 is to i......