holding that substantial compliance with respect to statutes governing ballots requires compliance with “essential matters necessary to assure every reasonable objective of the statute.” Id. at 691, 717 P.2d at 622
How later courts described this case
- holding that substantial compliance with respect to statutes governing ballots requires compliance with “essential matters necessary to assure every reasonable objective of the statute.” Id. at 691, 717 P.2d at 622
- applying ORS 250.084(4) (1985) and finding ballot DECISION TC-MD 240646N 7 title must be in “substantial compliance” with statutory requirements
- what constitutes substantial compliance with a statute is a matter that depends on the facts of each case
- ballot title should not include speculation as to result or consequence of proposed measures
Written by the judges who cited it.
The opinion
*697 LENT, J.,
concurring
I concur in the title certified by the court pursuant to ORS 250.085(4) only because it is virtually impossible to do any better, given the text of the measure proposed by the petitioners. 1
The electorate and the courts are used to dealing with measures that may contain some drafting flaws which produce questions as to what is intended by the sponsors. When flaws are minor and the chief purpose is easily ascertained, common sense often comes to the rescue so as to permit one to compose a ballot title that will meet the statutory requirements and ignore the flaws. In the case of this proposed measure, the flaws are not minor, and the chief purpose is not easily ascertained.
The Attorney General, pursuant to ORS 250.065(3), provided a draft ballot title. ORS 250.067 provides for comments on the draft title. One of the chief petitioners, Rogers, commented that he found the title “acceptable as prepared.” Another, Pfaff, found the draft title “entirely appropriate,” “fairly stated” and clear “with regard to the meaning and intent of this petition.”
Another person, Neuburger, who claimed in his written comment to be a “member of the drafting committee” of the measure, expressed his extreme dissatisfaction with the draft title. He stated that the committee recognized that most of the abuses of citizens’ rights concerned real property but that the committee was concerned with “all aspects of citizens’ property.” He continued that the measure was intended to cover
“liberty of contract, right to spend one’s salary on what one wishes, riparian rights, rights against seizure of property due to license revocation, rights to carry on an occupation to earn one’s living.”
He complained that the draft title did not reflect the omnibus *698 nature that the drafters intended. He further contended that the draft title implied that there would be compensation only for “reductions” in property value. Said he:
“This is not true. One of the most flagrant abuses of citizens’ rights we considered was the recent increase in assessed valuation of certain Clackamas county properties where property was upzoned, i.e., increased in value. * * * A protection against this type of abuse is incorporated in subsection (2) of the amendment that prohibits a taking by ‘assessment’ as well as zoning; a taking relating, here, to an action by a public body that can be construed to be a deprivation of right through inverse expropriation. Thus, a person’s right in property can be damaged by ‘upzoning.’ This aspect is not addressed in the ‘QUESTION.’ ”
Mr. Neuburger is not a petitioner before this court, but his comments are a part of the record on review by this court under ORS 250.067(4). I note them because they make it abundantly clear that the text chosen by the drafters of the measure seem to mean different things even among themselves.
The petitioners eschew any desire to hinder the power of governing bodies to regulate for the public health and safety. The meaning and content of that term is not completely free from doubt, and it may well mean something different to the sponsors of the measure than it would to others, but I shall assume that the meaning could be eventually ascertained on a case-by-case basis. For the purpose of this opinion I shall take regulation by any means to be regulation for other than the protection of health and safety.
Subsection (1) of the proposed measure provides:
“The right of an individual to acquire and own private property and use it for any purpose; except for those uses that endanger the public health and safety; enjoy the fruits of its production; dispose or sell it at its fair market value based on the highest and best use shall be inviolate, the rights inalienable and shall be protected by the state, and the political subdivisions thereof.”
Although the want of orderly arrangement of these words raises many interesting questions as to purpose of the subsection, I shall for the moment confine my remarks to the declaration that some thing or things are “inviolate” and *699 “inalienable.” I find that these terms are defined in subsection (12):
“(12) Definitions: The following words, used in this amendment (sic) [sic] shall have the following meaning as applied to this amendment unless the text otherwise requires:[ 2 ]
“1. INVIOLATE: Individual rights in private property inviolate or incapable of being broken, taken or destroyed, rights indestructible secure from violation, infringement, assault or trespass.
“2. INALIENABLE: Rights to title cannot be usurped or transferred by another, incapable of being surrendered, transferred or taken, annulled, voided, undone, forfeited or taken.”
As is readily seen, there is a certain circuity or tautology in defining “inviolate” as “inviolate,” but I leave that for some other time. What is important is that a right which is inviolate is defined as one that cannot be taken; nevertheless, subsections (2) and (3) of the proposed measure are largely concerned with the taking of those very things.
Subsection (1) provides that certain rights in property are “inalienable,” and subsection (12) states that this term means that rights to title are incapable of being surrendered or transferred. Using the definition provided by the sponsors of this measure causes subsection (1) to say that the right or power to sell or dispose of property is “inalienable” but in the same breath that the right of title is incapable of being surrendered or transferred. In the words of either Laurel or Hardy, “This is a fine kettle of fish you’ve got me into.”
Subsection (2) provides:
“Taking any of the value or rights of the owner of private property by regulation, zoning, ordinance, assessment legal strategem [sic], or police power for any purpose which is not essential to public health and safety is prohibited without just *700 and equitable compensation, assessed and arranged prior to the taking, and such taking of real property shall be in fee simple.” 3
We find here that if government takes any of the value or rights of the owner of private property by the enumerated means, just compensation must be paid therefor, and if real property is taken, the fee simple must be taken. Subsection (3) teaches the meaning of “taking.”
“A taking occurs when: Any action by any governing body, public entity, organization or person the affect [sic] of which is, or will be to appreciably diminish, damage, deprive or expropriate the rights of any owner of private property, including the right to leave property equally to heirs general.”
Taken together, the subsections are capable of meaning that if government by any of the enumerated means appreciably diminishes the rights of an owner of real property, that constitutes a taking, obligating the owner to sell, and the taxpayers to buy, the real property for just compensation. I sincerely hope that is not the case. Should my city pass an ordinance banning the planting of deciduous trees on single-family residence lots, thereby appreciably diminishing my present right to plant such trees around my home, I do not want thereby to be forced to sell my home to the city (to be paid for by the taxpayers) just because the constitution states that the taking “shall” be in fee simple.
Another thought occurs to me. Suppose the government by one of the enumerated means appreciably diminishes the rights of an owner of a life estate in real property. The measure says that the taking “shall” be in fee simple, one meaning of which, given in subsection (12), is “complete ownership.” Does this mean that the remainderman must sell (and the taxpayers buy) whether the remainderman wants to do so or not? One might say that common sense tells us that it was never intended that the owner must sell and the taxpayer *701 must buy, but subsection (4) makes it abundantly clear that where there is a taking, “title” is to pass. 4
Without even addressing the ambiguities and internal inconsistencies contained in the rest of the subsections, I believe that I have demonstrated the difficulty in discerning the “purpose” of this measure and expressing it in the form commanded by the statute. I would finally, however, address the fact that actions by regulatory agencies, such as the Public Utilities Commissioner, Banking Section, Real Estate Commissioner, Board of Forestry, etc., may by “regulation” (or even “legal stratagem”) appreciably diminish the rights of the owner of property, thereby constituting a taking that results in title passing in fee simple to the government and obligating the taxpayers to pay for the acquisition. I do not suppose that any regulatory body would do so, but I suppose that it is possible that the Board of Forestry, with an eye on a nice piece of timberland, might adopt a regulation that had the effect of appreciably diminishing the rights of the owner and thereby force a sale to the Board, or the state, regardless of the owner’s desires.
I am fully cognizant that this court has often said that the effect of a measure need not be addressed in the ballot title, but when a measure is ambiguous in its effect, it is difficult to discern and express its purpose. The sponsors’ stated purpose cannot override what their chosen words would accomplish.
As I shall point out later, one of the drafters of this measure does not agree that it speaks only to reduction in value. Maybe he is right.
The apparently purposeless insertion of “(sic)” suggests the influence of a “teacher” of law not lately in the public eye as much as in former times. See Marguerite E. Wright Trust v. Dept. of Rev., 297 Or 533, 538-545 , 685 P2d 418 (1984) (Lent, J., concurring). It is hard to imagine a reason why a “(sic),” which ordinarily indicates a mistake in spelling, should be inserted by the very person who drafts the text; but if the drafter wished to employ a “(sic)” somewhere, he could have done so after the phrase “the affect” in subsection (3).
The inclusion of the word “assessment” is what caused Mr. Neuburger’s concern. I am not clear in my mind just what he believes this language to accomplish. Maybe he construes it to mean that if the assessor raises the appraised value of the property, the taxpayers will have to buy, and the owner will have to sell, the property at the appraised value.
Subsection (4) provides:
“Just and equitable compensation shall be based on the current fair market value of the property being taken at its highest and best use at the time of the taking, and it must be declared a taking and paid for as title passes.”