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Unger v. Rosenblum

Supreme Court of Oregon, En Banc

December 14, 2017

Ben UNGER, Mary Geddry, John Booker, and Marie Bowers Stagg, Petitioners,
Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent.

         On petitions to review ballot title fled July 28, 2017; considered and under advisement on September 26, 2017.

          Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, fled the petition and reply and supplemental memoranda on behalf of petitioner Unger.

          Ann B. Kneeland, Eugene, fled the petition and reply and supplemental memoranda on behalf of petitioners Geddry and Booker.

          Jill Gibson, Gibson Law Firm, LLC, Portland, fled the petition and reply and supplemental memoranda on behalf of petitioner Stagg.

          Greg 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.

          Also on the answering and supplemental memoranda were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [362 Or. 211] LANDAU, J.

         This 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.


         We 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.

         The 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 therewith." Id.

         The 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."

         The 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).

         In 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).

         Electors 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 250.085(4).

         The 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. ORS 250.045(6).

         During 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 ...

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