
FILED: SEPTEMBER 8, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
JAY DUDLEY
and JIM HILL,
	Petitioners,
	v.
BOB JENKS,DANIEL MEEK and CHARLES DAVIS,in their capacities as members ofthe Citizens Committeeappointed pursuant to ORS 251.205(1),
	Respondents.
(SC S47797)
	En Banc
	On petition to review explanatory statement.
	Argued and submitted August 24, 2000.
	John A. DiLorenzo, Jr., Portland, argued the cause for
petitioners.  With him on the petition were Aaron K. Stuckey and
Hagen, Dye, Hirschy & DiLorenzo, P.C.
	Daniel Meek, Portland, argued the cause and filed the
answering memorandum for respondents. 
	GILLETTE, J.
	Ballot measure explanatory statement certified.  Under ORAP
1.20(4), and notwithstanding ORAP 9.25(1) and ORAP 14.05, this
opinion will become effective when the appellate judgment issues. 
The State Court Administrator shall issue the appellate judgment
at 5:00 p.m. on September 11, 2000, unless a petition for
reconsideration is both filed with and physically received by the
Office of the State Court Administrator by that time.  Any timely
petition for reconsideration will stay issuance of the appellate
judgment until the court acts on such petition.
	GILLETTE, J.
	In this original proceeding, petitioners challenge the
explanatory statement for Ballot Measure 90 (2000).  See ORS
251.205 (providing for creation and manner of selection of
committee of five citizens to prepare explanatory statement for
initiated and referred measures); ORS 251.215 (providing for
preparation and filing of explanatory statement by committee). 
The measure, which was passed by the legislature and referred by
the people, would amend present statutory law relating to the
ability of public utility and telecommunications companies to
obtain a return of and a return on property that has been retired
from service.
After a majority of the explanatory statement committee
prepared and filed an explanatory statement for the measure, ORS
251.215(1), the Secretary of State held a hearing to receive
comments on the statement.  Following the hearing, the committee
majority filed a revised explanatory statement with the Secretary
of State.  ORS 251.215(2), (3).  Petitioners (1) offered suggestions
for changes to the explanatory statement at that hearing; they
are entitled to seek a different explanatory statement in this
court.  ORS 251.235; see also Homuth v. Keisling, 314 Or 214,
218-19, 837 P2d 532 (1992) (ORS 251.235 authorizes Supreme Court
review of explanatory statement when any suggestions were offered
at Secretary of State's hearing).
	The committee is directed by statute to prepare an
explanatory statement that is an "impartial, simple and
understandable statement explaining the measure."  ORS
251.215(1).  This court's task is to determine whether the
explanatory statement contains a sufficient and clear statement
explaining the measure.  See Sizemore v. Myers, 327 Or 456, 459,
964 P2d 255 (1998) (so stating); ORS 251.235 (authorizing court
to consider challenges to explanatory statement on grounds that
statement is "insufficient or unclear").  
	Petitioners who challenge an explanatory statement bear
the burden of demonstrating that the statement is insufficient or
unclear.  June v. Roberts, 310 Or 244, 248, 797 P2d 357 (1990). 
That burden is a significant one.  This court has stated:
		"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. * * *


		"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."

Teledyne Wah Chang Albany v. Powell, 301 Or 590, 592-93, 724 P2d
319 (1986) (emphasis supplied).  With the foregoing standards in
mind, we turn to the referred measure and its explanatory
statement that are before us in this case.
	For the convenience of the reader, we here set out both
the referred measure and the explanatory statement respecting the
measure that was prepared by a majority of the citizens'
committee appointed to perform that task.  The referred measure
provides:
		"Be It Enacted by the People of the
State of Oregon:
		"SECTION 1. ORS 757.140 is amended to
read:


		"757.140. (1) Every public utility shall
carry a proper and adequate depreciation
account.  The Public Utility Commission shall
ascertain and determine the proper and
adequate rates of depreciation of the several
classes of property of each public utility. 
The rates shall be such as will provide the
amounts required over and above the expenses
of maintenance, to keep such property in a
state of efficiency corresponding to the
progress of the industry.  Each public
utility shall conform its depreciation
accounts to the rates so ascertained and
determined by the commission.  The commission
may make changes in such rates of
depreciation from time to time as the
commission may find to be necessary.
		"(2) Notwithstanding ORS 757.355, in the
following cases the commission may allow in
rates, directly or indirectly, the return of
and a return on amounts on the utility's
books of account which the commission finds
represent undepreciated investment in [a]
utility [plant, including that which]
property that has been retired from service:
		"(a) When the retirement is due to
ordinary wear and tear, casualties, acts of
God, acts of governmental authority; or


		"(b) When the commission finds that the
retirement is in the public interest.

 "SECTION 2. ORS 759.135 is amended to
read:
		"759.135. (1) Every telecommunications
utility shall carry a proper and adequate
depreciation account. The Public Utility
Commission shall ascertain and determine the
proper and adequate rates of depreciation of
the several classes of property of each
telecommunications utility.  The rates shall
be such as will provide the amounts required
over and above the expenses of maintenance,
to keep such property in a state of
efficiency corresponding to the progress of
the industry.  Each telecommunications
utility shall conform its depreciation
accounts to the rates so ascertained and
determined by the commission.  The commission
may make changes in such rates of
depreciation from time to time as the
commission may find to be necessary.
		"(2) Notwithstanding ORS 757.355, in the
following cases the commission may allow in
rates, directly or indirectly, the return of
and a return on amounts on the utility's
books of account which the commission finds
represent undepreciated investment in [a]
utility [plant, including that which]
property that has been retired from service:
		"(a) When the retirement is due to
ordinary wear and tear, casualties, acts of
God, acts of governmental authority; or


		"(b) When the commission finds that the
retirement is in the public interest.

		"SECTION 3. The amendments to ORS
757.140 and 759.135 by sections 1 and 2 of
this 1999 Act apply to public utility and
telecommunications utility property retired
from service before, on or after the
effective date of this 1999 Act.
		"SECTION 4. The amendments to ORS
757.140 and 759.135 by section 1 and 2 of
this 1999 Act apply to orders of the Public
Utility Commission entered before, on or
after the effective date of this 1999 Act."

(Bold denotes new material; bracketed and italicized material is
deleted.)
	The majority of the citizens' committee certified the
following explanatory statement for the referred measure:
		"Measure 90 would change Oregon law to allow
regulated utilities (electric, phone, gas, water) to
charge rates high enough to give the utilities profits
on 'retired' plants and property no longer providing
service, including plants that have stopped working. 
The Measure is retroactive and would allow rates giving
utilities profits on the Trojan nuclear plant, which
shut down permanently in 1992.


		"Measure 90 would have these effects:
		"1. It would reinstate a 1995 order of the Oregon
Public Utilities Commission (Commission) giving
Portland General Electric Co. (PGE) profits on the
closed Trojan nuclear plant by allowing PGE to
charge ratepayers approximately $304 million for
'return on investment' or profit on Trojan.


		"2. It would nullify the decision of the Oregon
Court of Appeals that present law (enacted by
voters by initiative in 1978) prohibits utilities
from charging rates giving them profits for
retired plants, including Trojan.
		"3. It would allow utilities to charge rates high
enough to receive, at the same time, profits on
retired plants and also profits on the plants the
utilities build to replace them.

		"Measure 90 would apply to all public utilities
regulated by the Oregon Commission.
		"Measure 90 seeks to bypass, as to retired plants,
the existing statute, enacted by Oregon voters in 1978,
which states:
		"No public utility shall, directly or indirectly,
by any device, charge, demand, collect or receive
from any customer rates which are derived from a
rate base which includes within it any
construction, building, installation or real or
personal property not presently used for providing
utility service to the customer.

		"Measure 90, however, would authorize the Oregon
Commission to allow utilities to receive profits on
plants, including those which have stopped working or
are otherwise retired before the end of their expected
lives.
		"Measure 90 is retroactive and would apply to all
utility plants and property retired in the past.  The
Trojan nuclear plant was permanently closed in 1992, 19
years before the end of its expected life.  In 1995,
the Oregon Commission allowed PGE to charge ratepayers
approximately $304 million to give PGE stockholders a
'return on investment' or profit on Trojan.  (This
assumes no future change to the rate of return the
Oregon Commission approved for PGE.)
		"By the end of 1999, PGE ratepayers had paid
approximately $150 million to PGE for Trojan profits.
		"In 1998, the Oregon Court of Appeals reversed the
1995 Oregon Commission order, concluding that present
law (the 1978 ballot measure) prohibits utilities from
charging rates to receive profits on plants not
providing service, including Trojan.  While the Oregon
Supreme Court was reviewing this decision, the 1999
Oregon Legislature passed HB 3220.  PGE then asked the
Supreme Court to reverse the earlier Court decision, on
the basis of HB 3220.  Oregon citizens then submitted
53,489 valid signatures to subject HB 3220 to a
statewide referendum.  Measure 90 is the referendum on
HB 3220.  Measure 90 is not an initiative."

		As noted, the issue is whether the explanatory
statement is insufficient or unclear in that it fails to explain
the measure in a way that is "impartial, simple and
understandable."  ORS 251.215(1).  Petitioners argue that the
explanatory statement is insufficient or unclear in several
respects.  We turn to those arguments.
	Petitioners argue, first, that the explanatory
statement as a whole is "partial."  Among other things, they
contend that it is one-sided in that "[i]t does not include any
reference to any statements that would lead a typical voter to
even consider voting for the measure."  An explanatory statement
must be impartial and, if it is not, it is insufficient.  Sollis
v. Hand, 310 Or 251, 255, 796 P2d 1188 (1990); Teledyne Wah Chang
Albany, 301 Or at 593. 
	Hyperbole aside, petitioners may be correct that the
explanatory statement, when read as a whole, would not incline a
voter to approve the referred measure.  But that argument proves
too much.  As we have noted, the explanatory statement is a
political statement that is intended to be the result of
compromise.  The statutes do not promise that any statement
necessarily will cause a voter to be disposed favorably toward a
measure; they promise only that a statement will not turn a voter
against a measure unfairly.  We have considered petitioners'
overall challenge on the explanatory statement carefully but
conclude that, in light of the deference that such statements are
to receive, the statement cannot be condemned as wholly biased
and unfair.  If petitioners are to prevail, they must do so with
respect to their more specific objections to the statement.
	Petitioners next argue that the explanatory statement
is fatally inaccurate when it states, at three different places,
that the measure would "allow" utilities to charge rates high
enough to receive, at the same time, profits on retired plants
and also profits on the plants that the utilities build to
replace them.  The measure would not "allow" utilities to do
anything of their own volition, petitioners assert.  Instead, it
would permit the Public Utility Commission (PUC) to authorize
such rates, if the PUC found it to be appropriate to do so.  It
may be that, when read in isolation, the several uses of the word
"allow" in the explanatory statement could be misleading.  But we
do not believe that it is appropriate to read any phrase or
sentence in an explanatory statement in isolation.  In the
present case, for example, the explanatory statement also
contains three references to the PUC, all of which refer (one
directly and the other two indirectly) to the fact that the rates
at issue are ones that the PUC "allows" the utility to charge. 
When it is read in the context that we have described, the word
"allow" does not convey the misimpression that petitioners
assert.  We find no insufficiency in this respect.
	Petitioners next assert that the explanatory statement
is insufficient, because it "makes no mention whatsoever of the
Legislature's rationale for passing the bill [that became this
referred measure]."  We are not aware of any statutory provision
that requires the committee specifically to identify and report
on the legislature's rationale, assuming that there is a single
rationale attributable to those who voted for the measure and
further assuming that that motivation can be identified.
	Petitioners next challenge the use throughout the
explanatory statement of the term "profits" to describe the
concept of "return on investment" that the measure is intended to
allow to the regulated utilities.  We find no violation of the
statutory standard.  We believe that the committee was well
within its range of discretion in choosing to use a term that
aptly would describe for many (if not most) persons the common
understanding of what a utility receives when it obtains a return
"on" an investment. 
	Finally, petitioners object to inclusion in the
explanatory statement of statements that ratepayers have paid
approximately $150 million to PGE for Trojan profits and will be
charged another $304 million for a profit on Trojan if the
measure is approved.  Petitioners contend that those numbers are
"speculative" and have "no basis whatsoever in any record."  The
first objection is not supported by anything that would lead us
to believe that the majority of the committee that drafted the
explanatory statement was not entitled to believe that the
figures were accurate.  There are two problems with the second
objection:  First, there is no requirement that we are aware of,
either in ORS 251.235 or elsewhere, that all statements in an
explanatory statement be based on some kind of record.  Second,
respondents have included with their submissions materials that
indicate that the figures in question were brought up repeatedly
during the progress of the referred measure through the
legislature and afterward.  As noted, petitioners bear the burden
of showing that the explanatory statement is insufficient or
unclear.  They have not met that burden in this respect.
	We note one further argument advanced by petitioners,
because it is pertinent to this court's continued consideration
of challenges to explanatory statements under ORS chapter 251, as
well as to consideration of challenges to ballot titles under ORS
chapter 250.  	Petitioners argue that ORS 251.235, (2) which gives
this court the authority to re-draft and certify a new
explanatory statement, is unconstitutional, because any duty to
draft explanatory statements belongs to the Legislative
Department. (3)
	Petitioners' argument is a familiar one.  Since 1995,
various members of this court have declined to participate in the
reformation of ballot titles and explanatory statements because
they concluded that re-drafting of that kind is beyond the
court's constitutional power under Article III, section 1, of the
Oregon Constitution. (4) See Rooney v. Kulongoski, 322 Or 15, 55,
902 P2d 1143 (1995) (Unis, J., dissenting, joined by Durham, J.)
(re-writing ballot titles is legislative function); Deras v.
Myers, 327 Or 472, 479, 962 P2d 692 (1998) (Durham, J.,
dissenting) (re-writing explanatory statements is legislative
function); see also Eisenzimmer v. Myers, 330 Or 272, 275, 998
P2d 1272 (2000) (Riggs, J., concurring) (modifying a ballot title
violates separation of powers); Earls v. Meyers, 330 Or 171, 178,
999 P2d 1134 (2000) (Van Hoomissen, J., dissenting, joined by
Riggs, J.) (separation of powers issues in ballot title
challenges should be revisited); Novick v. Myers, 330 Or 154,
159, 998 P.2d 1258 (2000) (Leeson, J., concurring) (noting
disagreement that this court can engage in interpretive exercise
in ballot title challenges).  However, despite those published
comments by various past and present members of this court, this
is the first time that the issue has been raised by a party in a
challenge to an explanatory statement.

	The principle of separation of powers is central to our
system of government.  Rulings respecting the scope of that
principle can have sweeping consequences.  Our ruling on the
merits of petitioners' challenges to the explanatory statement in
this case obviates any need to answer petitioners' separation of
powers arguments now, but the issue is one that seems certain to
arise again.  We note it to alert potentially affected parties
and with the expectation that, in that event, we shall have both
the briefing that will permit the issue to be addressed in a
structured way and the time to permit us to render a fully-considered decision.

	Petitioners have not carried their burden of
establishing that the explanatory statement is insufficient or
unclear.  It follows that the statement should be certified to
the Secretary of State without modification.  We certify the
following explanatory statement for Ballot Measure 90 to the
Secretary of State:

		Measure 90 would change Oregon law to
allow regulated utilities (electric, phone,
gas, water) to charge rates high enough to
give the utilities profits on "retired"
plants and property no longer providing
service, including plants that have stopped
working.  The Measure is retroactive and
would allow rates giving utilities profits on
the Trojan nuclear plant, which shut down
permanently in 1992.


		Measure 90 would have these effects:


		1. It would reinstate a 1995 order of
the Oregon Public Utilities Commission
(Commission) giving Portland General
Electric Co. (PGE) profits on the closed
Trojan nuclear plant by allowing PGE to
charge ratepayers approximately $304
million for "return on investment" or
profit on Trojan.


		2. It would nullify the decision of the
Oregon Court of Appeals that present law
(enacted by voters by initiative in
1978) prohibits utilities from charging
rates giving them profits for retired
plants, including Trojan.


		3. It would allow utilities to charge
rates high enough to receive, at the
same time, profits on retired plants and
also profits on the plants the utilities
build to replace them.

		Measure 90 would apply to all public
utilities regulated by the Oregon Commission.


		Measure 90 seeks to bypass, as to
retired plants, the existing statute, enacted
by Oregon voters in 1978, which states:


		No public utility shall, directly or
indirectly, by any device, charge,
demand, collect or receive from any
customer rates which are derived from a
rate base which includes within it any
construction, building, installation or
real or personal property not presently
used for providing utility service to
the customer.

		Measure 90, however, would authorize the
Oregon Commission to allow utilities to
receive profits on plants, including those
which have stopped working or are otherwise
retired before the end of their expected
lives.


		Measure 90 is retroactive and would
apply to all utility plants and property
retired in the past.  The Trojan nuclear
plant was permanently closed in 1992, 19
years before the end of its expected life. 
In 1995, the Oregon Commission allowed PGE to
charge ratepayers approximately $304 million
to give PGE stockholders a "return on
investment" or profit on Trojan.  (This
assumes no future change to the rate of
return the Oregon Commission approved for
PGE.)


		By the end of 1999, PGE ratepayers had
paid approximately $150 million to PGE for
Trojan profits.


		In 1998, the Oregon Court of Appeals
reversed the 1995 Oregon Commission order,
concluding that present law (the 1978 ballot
measure) prohibits utilities from charging
rates to receive profits on plants not
providing service, including Trojan.  While
the Oregon Supreme Court was reviewing this
decision, the 1999 Oregon Legislature passed
HB 3220.  PGE then asked the Supreme Court to
reverse the earlier Court decision, on the
basis of HB 3220.  Oregon citizens then
submitted 53,489 valid signatures to subject
HB 3220 to a statewide referendum.  Measure
90 is the referendum on HB 3220.  Measure 90
is not an initiative.

	Ballot measure explanatory statement certified.  Under
ORAP 1.20(4), and notwithstanding ORAP 9.25(1) and ORAP 14.05,
this opinion will become effective when the appellate judgment
issues.  The State Court Administrator shall issue the appellate
judgment at 5:00 p.m. on September 11, 2000, unless a petition
for reconsideration is both filed with and physically received by
the Office of the State Court Administrator by that time.  Any
timely petition for reconsideration will stay issuance of the
appellate judgment until the court acts on such petition.




1. 

Petitioners were themselves members of the citizens'
committee that was appointed under ORS 251.205 to prepare the
explanatory statement at issue here.  Petitioners declined to
join the majority of the citizens' committee in certifying that
explanatory statement.  Respondents have moved to dismiss the
present petition to review explanatory statement on the ground
that the caption used by petitioners fails to set out the fact
that petitioners themselves were members of the citizens'
committee.  Respondents rely on ORAP 11.32(2)(a), which provides:
		"The citizens committee appointed to prepare the
explanatory statement shall be designated
'Respondents,' the Attorney General shall not be
designated as a respondent, and the title of the
proceeding shall be 'Petition to Review Explanatory
Statement'."

Petitioners argue that it would be absurd to name themselves as
additional respondents, in view of the fact that it is they who
are challenging the explanatory measure.  We think that it is
sufficient to state that failure to comply precisely with the
requirements of ORAP 11.32(2)(a) is not jurisdictional. 
Respondents' motion to dismiss this proceeding is denied.

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2. 	ORS 251.235 provides, in part:


"Any person dissatisfied with an explanatory statement
* * * may petition the Supreme Court seeking a different
statement and stating the reasons the statement filed with
the court is insufficient or unclear.  * * * [T]he court
shall review the statement, hear arguments and certify an
explanatory statement to the Secretary of State.  The review
by the Supreme Court shall be conducted expeditiously to
insure the orderly and timely conduct of the election at
which the measure is to be submitted to the electors.  The
statement certified by the court shall be the explanatory
statement printed in the voters' pamphlet."	

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3. 	In their brief, petitioners attempt to distinguish
between re-drafting ballot titles, which this court declared to
be a constitutional exercise of this court's power in Rooney v.
Kulongoski, 322 Or 15, 902 P2d 1143 (1995), and re-drafting
explanatory statements, which petitioners argue is
unconstitutional for the same reasons stated in Justice Unis'
dissent in Rooney.  Because we do not now decide petitioners'
constitutional argument, we need not reach the question whether
re-drafting ballot titles is distinguishable from re-drafting
explanatory statements for separation of powers purposes.

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4. 	Article III, section 1, of the Oregon Constitution,
which requires a separation of powers among the three coordinate
branches of government, provides:


		"The powers of the Government shall be divided
into three seperate [sic] departments, the Legislative,
the Executive, including the administrative, and the
Judicial; and no person charged with official duties
under one of these departments, shall exercise any of
the functions of another, except as in this
Constitution expressly provided."
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