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Markley v. Rosenblum

Supreme Court of Oregon, En Banc

March 8, 2018

Kyle MARKLEY and Lars Hedbor, Petitioners,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Trent LUTZ, Petitioner,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.

         On petitions to review ballot title fled December 28, 2017; considered and under advisement on February 6, 2018.

          Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, fled the petition for review and reply for petitioners Markley and Hedbor.

          Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, fled the petition for review and reply for petitioner Lutz.

          Shannon T. Reel, Assistant Attorney General, Salem, fled the answering memorandum for respondent on review. Also on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Daniel W. Meek, Portland, fled the briefs for amici cur-iae B. Elizabeth Trojan and Ronald A. Buel.

         [362 Or. 532] Case Summary: Petitioners seek review of the Attorney General's ballot title for Initiative Petition (IP) 28. IP 28, if enacted, would amend the free speech provision of the Oregon Constitution to permit laws that regulate campaign contributions and expenditures. Petitioners challenged the caption, "yes" and "no" result statements, and the summary arguing, among other things, that the caption includes matters that are not the subject of the measure, incorrectly states the effect of the measure, if passed, on a 12-year old statute that, by its terms, is currently dormant, and fails to alert the voters that the extent to which the measure would permit regulation of expressive activity is unclear. Held: The caption, "yes" and "no" result statements, and the summary do not substantially comply with the requirements in ORS 250.035 for many of the reasons identified by petitioners.

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

          [362 Or. 533] KISTLER, J.

         Two sets of petitioners have challenged the Attorney General's certified ballot title for Initiative Petition 28 (IP 28). We review the ballot title for substantial compliance with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we conclude that the ballot title does not substantially comply with ORS 250.035(2) and refer the ballot title to the Attorney General for modification.

         Article I, section 8, of the Oregon Constitution prohibits laws "restraining the free expression of opinion, or restricting the right to speak, write, or print free on any subject whatever." See State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982) (interpreting Article I, section 8). This court held in Vannatta v. Keisling, 324 Or. 514, 931 P.2d 770 (1997) (Vannatta I), that making contributions to candidates is protected expression and that laws limiting the amount of contributions that a person, corporation, or union makes to candidates or political committees violate Article I, section 8. 324 Or. at 537-39; see Vannatta v. Oregon Government Ethics Comm., 347 Or. 449, 222 P.3d 1077 (2009) (clarifying Vannatta I).

         IP 28, if adopted, would add an exception to the constitutional protections recognized in Vannatta I. More specifically, IP 28 would add the following sentence to Article I, section 8:

"Laws consistent with the freedom of speech guarantee of the United States Constitution may regulate contributions and expenditures, of any type or description, to influence the outcome of any election; provided, that such laws are adopted or amended by initiative or by an elected legislative body by a three-fourths vote."

         A law will come within the exception set out in IP 28 if three conditions are met: the law must (1) be "consistent with the freedom of speech guarantee of the United States Constitution"; (2) "regulate contributions and expenditures * * * [made] to influence the outcome of any election"; and (3) be "adopted or amended by initiative or by an elected legislative body by a three-fourths vote."

          [362 Or. 534] The Attorney General certified the following ballot title for IP 28:

"Amends Constitution: Allows laws regulating contributions/expenditures made to influence elections; Measure 47 (from 2006) becomes law
"Result of 'Yes' Vote: 'Yes' vote amends constitution, allows laws regulating contributions and expenditures to influence election outcomes; triggers Measure 47 (from 2006), regulating campaign expenditures, requiring certain disclosures.
"Result of 'No' Vote: 'No' vote retains Oregon Constitution's existing free-expression provision; Measure 47 (from 2006), regulating campaign expenditures, requiring certain ...

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