Rogers v. Roberts , 300 Or. 687 ( 1986 )

LINDE, J.,

concurring.

The law governing ballot titles for initiative petitions imposes on the Attorney General, and too often on this court, the thankless task to compress into a few words what anyone with a blunt pencil and a cause wants Oregon’s voters to put into the constitution or laws. The present case perhaps can gain some measure of sympathy for those who struggle with this task, usually to someone’s dissatisfaction.

ORS 250.035 prescribes that the different parts of the ballot title shall state, respectively, the “subject matter,’’.the “purpose,” and the “chief purpose” of a proposed measure.¹ To do this, the Attorney General (and this court) must find a way to summarize the measure, but without speculating about its effects or about the meaning of ambiguous provisions that may become the subject of legal disputes. Kegg v. Paulus, 282 Or 47, 50, 576 P2d 1255, 1256 (1978). That can be quite a challenge, as the present proposal for a new section of the Oregon Constitution illustrates.

1. The measure purports to protect private property rights against government regulation not essential to public health and safety. Does the measure apply to personal property as well as real property?

Subsection (2), in a single sentence, uses first the phrase “private property” and later the phrases “taking of real property” and “fee simple” (a real property term rather exuberantly defined in subsection (12)). Subsection (3) again refers to the rights of “any owner of private property.” Subsection (4) says that a taking must be declared “and paid for as title passes.” Subsequent subsections refer only to owners of “property” without limitation to real property.

In oral argument, counsel for petitioners expressed a belief that the measure probably applies to property of any kind. The question has considerable importance, since the effect of government regulation for purposes other than health and safety, particularly rate regulation of public utilities, minimum wage or maximum hour standards, antidiscrimination laws, and the like have in the past been attacked for reducing the profitability and therefore the value of business property other than real property.

2. Does the measure apply only to “individual” rights, or does it include corporate property? The proposed Section 41, in its title and in subsection (1), refers to the “individual’s” rights in private property. The subsequent subsections refer to the “owner” of private property, except for a definition in subsection (12), which once again refers to “individual rights in private property.”

3. If enacted, the measure would “supersede all constitutional provisions in conflict herewith.” Section 41(10). Under subsection (2), regulations would be a “taking” if their purpose is “not essential to public health and safety.” Aside from the predictable dispute how far governments may stretch the link of a regulation to health and safety (and whether “public” differs from “individual” health and safety), does the proposal intend to supersede such protection as the existing “taking” clause, Article I, Section 18, may offer landowners when an undoubted health and safety law leaves them with no economic use for their property?

I mention these questions not to express any view of the answers or of the sponsor’s goals but to show the problem facing the drafter of a “plain,” “concise,” and “impartial” ballot title. Sponsors, of course, want the title to present their fundamental ideas in the best light, in this case by stressing such terms as “inviolate” individual rights in property, without too much attention to just what the measure proposes to do.² But the Attorney General’s assistants deserve better than to have their efforts attacked on the ground that the Attorney some years earlier contributed to an organization that opposes the sponsors’ proposal.³

The Court has done as well with the revised ballot title for this measure as it reasonably can be expected to do, and I concur in its decision.

Lent, J., joins in this opinion.

1 ORS 250.035 (1) provides in pertinent part:

“(1) The ballot title of any measure to be initiated or referred shall consist of:

“(a) A caption of not more than 10 words which identifies the subject matter of the measure;

“(b) A question of not more than 20 words which plainly states the purpose of the measure, and is phrased so that an affirmative response to the question corresponds to an affirmative vote on the measure; and

“(c) A concise and impartial statement of not more than 75 words of the chief purpose of the measure.”

2 Compare Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984), reviewing a ballot title for a measure that proposed numerous changes in criminal procedure which its sponsors wished to characterize as protecting “victims’ rights.”

3 Petitioners criticize changes made in the first ballot draft of the title after receiving comments from 1000 Friends of Oregon (under the procedure of ORS 250.067) as “grossly unfair” because the Attorney General was a “sustaining member” contributing $100 a year to that organization during 1975-79, when he was a member of the Oregon House of Representatives.