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Swanson v. Rosenblum

Supreme Court of Oregon, En Banc

November 9, 2017

Matt SWANSON, Petitioner,
v.
Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent.

         On petition to review ballot title fled August 8, 2017; considered and under advisement on September 26, 2017.

          Harry B. Wilson, Markowitz Herbold PC, Portland, fled the petition for review and the replying memorandum on behalf of petitioner.

          Jacob Brown, Assistant Attorney General, Salem, fled the answering memorandum for respondent. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         Case Summary: Petitioner sought review of Attorney General's certified ballot title for Initiative Petition 19, which, if adopted, would limit state legislators to serving no more than eight years in any twelve-year period. Held: The ballot title's caption did not substantially comply with ORS 250.035(2)(a) because it failed to inform voters of the measure's retroactive application, which is a major effect of the proposed measure.

         The ballot title is referred to the Attorney General for modification.

         [362 Or. 144] WALTERS, J.

         Petitioner seeks review of the Attorney General's certified ballot title for Initiative Petition 19 (2018) (IP 19), arguing that the ballot title caption does not satisfy the requirements of ORS 250.035(2)(a). We review a certified ballot title to determine whether it substantially complies with those statutory requirements. See ORS 250.085(5) (stating standard of review). For the reasons that follow, we refer the ballot title to the Attorney General for modification.

         If adopted by voters, IP 19 would prohibit a person from serving as a member of the Legislative Assembly for more than eight years in any period of 12 years. Subject to certain exceptions, [1] IP 19 specifically provides that the state measure would apply "retroactively to limit service by any person who is a Representative or Senator upon the effective date of this Act, so that current or prior membership is included in the calculation of years of service."

         The Attorney General certified the following ballot title caption for IP 19:

         "Limits service by state legislators: No more than eight years in any twelve-year period."

         Petitioner contends that that caption does not comply with ORS 250.035(2)(a), which provides that a ballot title's caption be no "more than 15 words that reasonably identif[y] the subject matter of the state measure." The "subject matter" of a measure is the "actual major effect" of the measure or, "if the measure has more than one major effect, all such effects (to the limit of the available words)." Whitsett v. Kroser. 348 Or. 243, 247, 230 P.3d 545 (2010).

         [362 Or. 145] Although petitioner acknowledges that the caption informs voters of one major effect of IP 19-its prohibition on years of service-petitioner contends that it fails to inform voters of another major effect-that the measure applies retroactively, with exceptions. In petitioner's view, the measure's retroactive application is an actual major effect of the measure for two reasons. First, petitioner submits, the proposed measure will begin to change the composition of the legislature in just two years, not in eight years, as voters reasonably might presume. Petitioner explains that, without notice to the contrary, voters reasonably could expect that legislators would not be subject to the measure's limitations on legislative service until they had served for eight years from the effective date of the measure; or, in other words, voters reasonably might believe that past legislative service would not be considered in applying the measure's prohibition. Second, petitioner contends, the measure's retroactive application is a major effect that must be signaled because, if the measure is enacted, it will prohibit many current legislators from completing their terms.

         Addressing petitioner's first argument, the Attorney General submits that the caption does not include "temporal qualifications" and therefore adequately informs voters that its length-of-service limitation applies to all legislative service, including past and current service.[2] The Attorney General accepts that the caption could be more explicit; however, she argues, further detail is not required to "reasonably identif[y]" the measure's major effect. Voters are apprised of those details in the "Yes" vote statement and the summary portions of the ballot title, and, the Attorney General contends that that is sufficient.

         Addressing petitioner's second argument, the Attorney General takes issue with petitioner's interpretation of the measure as prohibiting many current legislators from completing their terms. The Attorney General urges us not to rely on that "speculative" ...


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