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
C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC,
Portland, fled the petition for review and reply for
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.
W. Meek, Portland, fled the briefs for amici cur-iae
B. Elizabeth Trojan and Ronald A. Buel.
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.
ballot title is referred to the Attorney General for
Or. 533] KISTLER, J.
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.
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
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."
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
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
"Result of 'No' Vote:
'No' vote retains Oregon Constitution's existing
free-expression provision; Measure 47 (from 2006), regulating
campaign expenditures, requiring certain ...