Teledyne Wah Chang Albany v. Powell

• Decision Date: 27 August 1986
• Citation: 724 P.2d 319,301 Or. 590
• Parties: TELEDYNE WAH CHANG ALBANY, Petitioner, v. John POWELL, James Denham, Lloyd K. Marbet, Gregory Kafoury, and the Honorable Arno Denecke, Respondents. S33132.
• Court: Oregon Supreme Court

Page 319

724 P.2d 319

301 Or. 590

TELEDYNE WAH CHANG ALBANY, Petitioner, v. John POWELL, James Denham, Lloyd K. Marbet, Gregory Kafoury and the Honorable Arno Denecke, Respondents.

S33132.

Supreme Court of Oregon In Banc.

Argued and Submitted Aug. 20, 1986.

Decided Aug. 27, 1986.

[301 Or. 591] Richard H. Williams, Portland, argued the cause and filed the Petition to Review Explanatory Statement for petitioner. With him on the petition was Spears, Lubersky, Campbell, Bledsoe, Anderson & Young.

John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause and filed the Answering Memorandum of the Atty. Gen. With him on the Answering Memorandum were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

PER CURIAM

This is an original proceeding to review the explanatory statement for Ballot Measure 15 prepared for inclusion in the voters' pamphlet for the November 4, 1986 election. The statement was prepared by a committee appointed pursuant to ORS 251.205. The committee filed the statement with the Secretary of State pursuant to ORS 251.255. Petitioner Teledyne Wah Chang Albany (TWCA) seeks review of the statement under ORS 251.235. Some of petitioner's contentions are correct. We conclude this opinion with a modified explanatory statement to be included in the voters' pamphlet.

The committee's explanation must be "an impartial, simple and understandable statement explaining the measure and its effect," not exceeding 500 words. ORS 251.215(1). A petitioner seeking a different statement from the Supreme Court shall state "the reasons the statement * * * is insufficient and unclear." ORS 251.235. That statute then directs the court to review the statement, hear arguments and certify "an explanatory statement" to the Secretary of State.

We take a summary of the court's and committee's role from the Attorney General's brief.

The court must test the statement filed with the Secretary of State against the ORS 251.215(1) requirement that the statement be "impartial, simple and understandable." The requirement in ORS 251.215(1) that the statement explain the measure must be read with the insufficiency ground for challenge under ORS 251.235. Lack of impartiality is not specified as a ground for challenge, but impartiality is a requisite for sufficiency.

The statutes call for the committee to be composed of two proponents of the measure, two opponents of the measure, and a fifth member chosen by the other four (presumably a tie-breaker). See ORS 251.205. The scheme brings the opposing political forces to bear in the development of a statement, on the implicit assumption that this will result in an acceptably politically balanced statement for the voters. If the committee fails to file a statement, Legislative Counsel Committee, which provides professional staff support to the Legislative Assembly, supplies an explanatory statement. ORS 251.225. Changes to the committee's explanatory statements can be proposed by interested persons, and a special hearing is held by the Secretary of State for this purpose. The committee then considers those suggestions, and can file a revised statement. ORS 251.215.

The explanatory statement procedures thus differ markedly from the procedures devised for providing a ballot title. See ORS chapter 250. The legislature has provided for a process by which opposing viewpoints are brought to bear on the statement's drafting, and has provided for a hearing process to allow other interested people to participate. By design, the process is both legislative and political. The court, in its review, should defer to those processes unless the inadequacy of the statement is clear. In reviewing the explanatory statement, the court should not invalidate or modify it unless its insufficiency is beyond reasonable argument.

In reviewing ballot title issues, we have said:

" * * * Our role is limited to determining whether the Attorney General's title is a concise and impartial statement of the purpose of the measure, and we are not concerned with whether the petitioner's proposed title may be better or even whether we could devise a better one ourselves. * * *." Priestley v. Paulus, 287 Or. 141, 145, 597 P.2d 829 (1979).

Similarly, with respect to explanatory statements for ballot measures, our task is not to write a better statement, but only to determine whether the explanatory statement is a sufficient and clear statement of the measure and its effect.

The text of the measure is set forth in the footnote. ¹ Petitioner contends that the explanatory statement is insufficient and unclear because it: (1) fails to state that the measure only affects TWCA and the zirconium waste it produces; (2) implies that the ballot measure expands the definition of radioactive waste; (3) implies that radioactive waste not presently regulated by the statute to be amended is not subject to regulation by any state agency and (4) fails to explain the significance of the proposed thresholds for zirconium waste.

The TWCA facility is the only waste facility containing wastes generated before June 1, 1981, that is said to be controlled by the measure. Petitioner and the Attorney General ² agree that the explanatory statement fails to state that its sole immediate effect would be to close down a waste facility operated by TWCA and to require removal of all radioactive deposits therein. Because the TWCA facility is the only facility affected by the measure, it is appropriate so to identify it. June v. Roberts, 301 Or. 586, 724 P.2d 267 (1986). Compare Portland General Electric v. Roberts, 300 Or. 148, 152, 707 P.2d 1229 (court amended ballot title to inform voters that the proposed law affected only the Trojan nuclear power plant), vacated, 300 Or. 334, 709 P.2d 1086 (1985).

The committee's failure to state this effect of the measure renders it insufficient. However, the alternative language proposed by the petitioner is unduly repetitious and not entirely accurate. The effect of the measure is reflected in the modified language included below.

Petitioner's second contention is that the explanatory statement implies that zirconium wastes described in the measure are not considered radioactive under present law and that the measure will extend present law to regulate such wastes. Petitioner argues that this implication is misleading because it has not yet been determined whether TWCA's waste is radioactive under present law.

Present law exempts from the definition of radioactive waste such waste identified by the Energy Facility Siting Council (Council) "as presenting no significant danger to public health and safety." ORS 469.300(17)(a). The proposed measure retains the Council's ability to exempt certain waste, but specifically includes zirconium waste of the type produced by TWCA within the definition of radioactive waste without regard to the Council's rules.

Petitioner contends that it would be more accurate to state that the measure "amends" present law rather than "expands" it as stated in the explanatory statement. The explanatory statement adequately states the measure's practical effect, which is to regulate described zirconium wastes not presently regulated by the Council under ORS 469.300(17)(a).

Petitioner's third contention concerns the portion of the explanatory statement which states, in reference to the materials listed by the Council as posing no significant danger to the public health and safety, that "[m]aterials so listed will not be regulated as radioactive waste by the Council." Petitioner asserts that this is misleading as it implies that no state agency will regulate radioactive waste which falls below the threshold for regulation promulgated by the Council. Petitioner proposes the following additional sentence: "Radioactive materials not regulated as wastes by the Council are subject to regulation by the Oregon State Health Division."

The explanatory statement correctly states that radioactive materials which pose no significant danger to public health and safety will not be regulated as radioactive waste by the Council. Whether or to what extent such wastes would be regulated by other units of government is not apparent from the measure. The better course is not to attempt to explain the application of other laws that may or may not be affected by the measure.

Petitioner's last contention is that the explanatory statement does not explain the significance of the measure's thresholds for zirconium wastes--five picocuries and 10 microcuries--and fails to place the thresholds within a context which would permit a voter to evaluate the risk posed by such waste. Petitioner proposes that such a context would be provided by including the example of the granite facing upon a well known building in Portland that assertedly emits 33 picocuries of radium 226 per gram, as compared to the measure's threshold for zirconium waste of five picocuries per gram or a total of ten microcuries regardless of concentration.

The measure's picocuries and microcuries standards are with specific reference only to specified industrial wastes generated before June 1, 1981. Though we share the Attorney General's opinion that this language "will be meaningless to the overwhelming majority of voters," the language is in the measure, and is...