Eaton v. Keisling

813 P.2d 37, 311 Or. 415, 1991 Ore. LEXIS 72
CourtOregon Supreme Court
DecidedJune 6, 1991
DocketSC S37937
StatusPublished
Cited by2 cases

This text of 813 P.2d 37 (Eaton v. Keisling) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eaton v. Keisling, 813 P.2d 37, 311 Or. 415, 1991 Ore. LEXIS 72 (Or. 1991).

Opinion

GRABER, J.

In this original proceeding, petitioner challenges the ballot title for a proposed initiative measure.1 We modify the ballot title and certify it as modified.

The Attorney General certified this ballot title to the Secretary of State:

“STATE MUST DETERMINE SELECTIVE COMMERCIAL FISHING METHODS, OPPOSE SOME GILLNETTING
“Question: Shall state fish department be required to determine methods for selective commercial fish harvesting, oppose some gillnetting, promote sport fishing?
‘ ‘Summary: Act sets policy to harvest fish commercially by most selective means available, to return non-target fish unharmed. State to determine most selective commercial fish harvesting methods, oppose some Columbia River gill-netting. State to develop, implement plans to protect fish species most likely affected by commercial harvest. Plan goals are to achieve optimum recreational fishing; protect natural runs, genetic diversity of fish species. State may harvest, sell salmon if numbers exceed goals, use proceeds to carry out the Act. Allows private lawsuits to enforce Act.”

Petitioner seeks a different ballot title,2 ORS [418]*418250.085(2),3 contending that the ballot title certified by the Attorney General does not substantially comply with the requirements of ORS 250.035. ORS 250.035(1) provides:

“The ballot title of any measure to be initiated or referred shall consist of:
“(a) A caption of not more than 10 words which reasonably identifies the subject of the measure;
“(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure 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 85 words summarizing the measure and its major effect.”

As petitioner notes, this court reviews ballot titles for “substantial compliance” with those requirements. ORS 250.085(4); Reed v. Roberts, 304 Or 649, 652, 748 P2d 542 (1988). We turn to a consideration of petitioner’s arguments concerning the Caption, Question, and Summary.

CAPTION

The Caption must “reasonably [identify] the subject of the measure.” ORS 250.035(l)(a). Petitioner argues that the Caption fails reasonably to identify the subject of the measure, because it does not state that the subject of the measure is ‘ ‘to establish a sport fishing priority and to impose restrictions on the commercial gillnet fishery.” According to petitioner, the laws governing commercial harvesting of fish presently protect natural runs of anadromous fish and require conservation.4 That being so, he argues, the “primary aim” of the initiative is to eliminate consideration of economic and commercial, as distinct from recreational and [419]*419aesthetic, benefits in the management of Oregon’s fish resources. He argues that the subject of the measure is, therefore, to restrict commercial fishing more than it is now and that the Caption fails to reveal that subject.

We agree with petitioner that the present Caption does not comply substantially with ORS 250.035(1)(a). On the subject of the state’s goals for fish management, the present Caption says only that the state “must determine selective fishing methods” (emphasis added), whereas the measure would establish a policy “that the commercial harvest of fish be conducted by the most selective means available and in a manner that allows all nontarget fish to be returned to the water unharmed.” Section 4(1) (emphasis added). Similarly, section 2 of the measure declares that the state must “take every means possible” to protect Columbia River salmon, steelhead, and sturgeon from nonselective commercial harvest, and section 4(2) provides that “[sjtocks of fish shall be selected that will allow for commercial harvest by the most selective methods.” The single adjective, “selective,” in the Caption does not capture fully the subject of the measure, which, on its face, is to require the state to seek “the most selective” means of commercial fishing.

Moreover, the present Caption says only that the state must “determine” certain methods of fishing, whereas the measure would establish a policy and would require the state to take actions to “carry out” that policy. Section 4(1). For example, section 4(1) (b) of the measure specifies that the Fish and Wildlife Commission “shall oppose to the extent of its authority and influence” certain gillnetting. Section 2 of the measure provides that “the commission shall develop and implement management plans” for the protection of certain fish. The verb “determine” in the Caption does not capture fully the subject of the measure, which, on its face, is to require the state to act in accordance with what it determines.

Petitioner does not question directly the inclusion of a reference to gillnetting in the Caption. As noted, section 4(1) (b) specifies that the Fish and Wildlife Commission “shall oppose to the extent of its authority and influence, the taking of fish by gillnet in the mainstem of the Columbia River from the mouth upriver to Bonneville Dam during the period beginning January 1 and ending August 31 of each calendar [420]*420year.” Thus, gillnetting is one of the subjects of the measure. Petitioner’s proposed deletion from the Caption of the reference to gillnetting appears to result from his argument that the subject of the measure is more generally to restrict commercial fishing and from the limitation on the number of words that may appear in a caption.

The measure’s requirement that certain state officials oppose spring gillnetting in the mainstem of the Columbia River, section 4(1)(b), is a means to achieve the primary purpose of conducting commercial fishing “by the most selective means available and in a manner that allows all non-target fish to be returned to the water unharmed,” section 4(1). We thus agree with petitioner’s implicit argument that opposition to gillnetting is not the main subject of the measure. Restricting the commercial harvest of fish is the main subject of the measure; most of the significant provisions of the measure relate to that overall subject. Sections 2 (second paragraph), 4(1), 4(2), 4(4), and 5(l)(a).

The Attorney General’s Caption does not substantially comply with ORS 250.035(l)(a), because it fails “reasonably [to identify] the subject of the measure.” We substitute this Caption: RESTRICTS COMMERCIAL FISHING TO THE MOST SELECTIVE MEANS AVAILABLE.

QUESTION

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Related

Baker v. Keisling
822 P.2d 1162 (Oregon Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
813 P.2d 37, 311 Or. 415, 1991 Ore. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eaton-v-keisling-or-1991.