Ben UNGER, Mary Geddry, John Booker, and Marie Bowers Stagg, Petitioners,
Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent.
petitions to review ballot title fled July 28, 2017;
considered and under advisement on September 26, 2017.
C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC,
Portland, fled the petition and reply and supplemental
memoranda on behalf of petitioner Unger.
Kneeland, Eugene, fled the petition and reply and
supplemental memoranda on behalf of petitioners Geddry and
Gibson, Gibson Law Firm, LLC, Portland, fled the petition and
reply and supplemental memoranda on behalf of petitioner
Wasson, pro se, Salem, fled the supplemental memorandum on
behalf of amicus curiae himself.
Shannon T. Reel, Assistant Attorney General, Salem, fled the
answering memorandum on behalf of respondent. Christopher A.
Perdue, Assistant Attorney General, Salem, fled the
supplemental memorandum on behalf of respondent.
on the answering and supplemental memoranda were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Or. 211] LANDAU, J.
case comes to us as a ballot title challenge. But, because of
its unusual procedural posture, we asked the parties for
briefing on our authority even to undertake it. In brief, the
issue is this: Does the Oregon Supreme Court have authority
to consider a ballot title challenge if the underlying
initiative measure has not satisfied all the statutory
prerequisites for obtaining a ballot title in the first
place? For the reasons that we spell out in this opinion, the
answer to that question is no. We therefore dismiss the
ballot title challenge without addressing its merits.
OVERVIEW OF OREGON'S INITIATIVE PROCESS
begin with an overview of the initiative process, to provide
context for the facts of this case and our disposition of the
issue we have mentioned. Article IV, section l(2)(a), of the
Oregon Constitution provides that the people of the state
possess the power to "initiate" lawmaking
independently of the legislature. That is, they have the
power to propose statutes and amendments to the constitution,
which will go into effect if approved by a sufficient number
of voters at a statewide election. Id.
Oregon Constitution places a number of requirements and
conditions on the exercise of the initiative power. First, a
measure may not be submitted to a vote until supported by a
petition signed by a specified number of qualified voters
equal to a percentage of the total number of votes cast for
all candidates for governor at the last election at which the
governor was elected to a four-year term; the percentage
depends on whether the measure is statutory or
constitutional. Or Const, Art IV, § l(2)(b), (c).
Second, the petition must be filed with the Secretary of
State "not less than four months before the election at
which the proposed law or amendment to the Constitution is to
be voted upon." Id. at § l(2)(e). Third,
the petition must include the full text of the proposed
amendment. Id. at § l(2)(d). Fourth, it must
"embrace one subject only and matters properly connected
constitution also imposes limitations on the exercise of the
initiative power when it is used to amend the [362 Or. 212]
constitution. Of relevance to this case, Article XVII,
section 1, provides that when two or more amendments are
submitted to the voters in the same election, "they
shall be so submitted that each amendment shall be voted on
separately." In Armatta v. Kitzhaber. 327 Or.
250, 277, 959 P.2d 49 (1998), this court held that
separate-vote requirement of Article XVII, section 1, means
that a single initiative measure cannot "effect two or
more changes that are substantive and not closely related * *
* because it would prevent the voters from expressing their
opinions as to each proposed change separately."
constitution expressly authorizes the legislature to
prescribe " [t] he manner of exercising" the
initiative power by "general laws, " that is, by
statutes. Or Const, Art IV, § 1(5). See generally
Caruthers v. Kroger, 347 Or. 660, 664, 227 P.3d 723
(2010) ("[T]he constitution empowers the legislature
with the authority and responsibility of fleshing out the
[initiative] process."). Pursuant to that constitutional
authority, the legislature enacted ORS chapter 250, which
provides a comprehensive statutory process for placing
proposed initiative petitions on the ballot and ensuring
compliance with constitutional requirements and conditions.
The legislature also authorized the Secretary of State to
adopt administrative rules necessary to administer the
state's election laws, ORS 246.110 and ORS 246.150. It
also more specifically authorized the secretary to adopt
rules necessary to carry out specific provisions of ORS
chapter 250. See, e.g., ORS 250.015(1); ORS
250.045(3); ORS 250.067(5).
brief, the law requires that individuals who propose a
statewide initiative measure, known as "chief
petitioners, " file with the Secretary of State a
"prospective petition, " which consists of the text
of the proposed measure along with the signatures of at least
1, 000 electors. ORS 250.045(1). Once the secretary has
received a prospective petition and verified the sponsorship
signatures, the secretary forwards it to the Attorney
General. ORS 250.065(2). The Attorney General then has five
days in which to prepare a draft ballot title-that is, a
three-part summary of the proposed measure and its major
effects stated in the form of (1) a caption of no more than
15 words; (2) a "yes" and "no" [362 Or.
213] vote result statement of no more than 25 words
explaining the consequences of a "yes" and
"no" vote; and (3) a summary of no more than 125
words. ORS 250.035(2). The secretary then provides notice of
the public's right to submit written comments on the
draft ballot title. ORS 250.067(1). After receiving any
comments, the secretary forwards them to the Attorney
General. Id. The Attorney General then considers
those comments and certifies either the original draft ballot
title or a revised ballot title. ORS 250.067(2).
who previously commented on the draft ballot title and who
are dissatisfied with the certified ballot title may seek
review in the Supreme Court. ORS 250.085(2). Any such
electors are required to file a petition for judicial review
within 10 business days of the Attorney General's
certification of the ballot title. ORS 250.085(3)(a). And the
elector must notify the Secretary of State in writing the
following business day that the petition has been filed. ORS
Supreme Court reviews the Attorney General's certified
ballot title to determine whether it substantially complies
with the statutory requirements as to its form and content.
ORS 250.085(5). In conducting that review, the court is
constrained not to consider any argument not previously
submitted in written comments to the Secretary of State on
the draft ballot title, unless the arguments concern wording
in the ballot title that was added after that stage in the
process. ORS 250.085(6). If the court determines that the
challenged ballot title substantially complies with the
statutory requirements, the court certifies the ballot title
to the secretary. ORS 250.085(8). If the court determines
that the challenged ballot title does not substantially
comply, then the court refers the ballot title to the
Attorney General for modification. Id. The final,
certified ballot title then is placed on the cover of the
initiative petition, which is required before chief
petitioners may solicit signatures in support of the measure.
the ballot title process, the Secretary of State reviews the
prospective petition for compliance with the requirements of
Article IV, section 1, and Article XVII, section 1, including
that a proposed measure does not [362 Or. 214] contain more
than one amendment. OAR 165-014-0028(1). The secretary
solicits comments from the public on those issues at the same
time that the Attorney General is drafting the ballot title.
OAR 165-014-0028(2), (3). Those comments are submitted during
the same time for submitting comments on the Attorney
General's draft ballot title. OAR 165-014-0028(3). After
reviewing the comments, the secretary notifies the chief
petitioners of the results of his or her review. OAR
165-014-0028(4). If the secretary determines that a proposed
initiative measure does not satisfy constitutional
requirements, he or she will not approve the cover and
signature sheet that contains the certified ballot title and
that enables chief ...