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Beyer v. Rosenblum

Supreme Court of Oregon, En Banc

June 27, 2018

Roger W. BEYER, Petitioner,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Keely HOPKINS and Paul Donheffner, Petitioners,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Bryan Dale MUNSON, Petitioner,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Dominic AIELLO and Asha Aiello, Petitioners,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Kevin STARRETT, Petitioner,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.

          On petitions to review ballot title filed June 6 and June 7, 2018; considered and under advisement on June 12, 2018.

          T. Beau Ellis, Vial Fotheringham LLP, Lake Oswego, filed the petition for review for petitioner Beyer.

          Shawn M. Lindsay, Harris Berne Christensen LLP, Lake Oswego, filed the petition for review for petitioners Hopkins and Donheffner.

          Kristian Roggendorf, Roggendorf Law LLC, Lake Oswego, filed the petition for review for petitioner Munson.

          Ross Day, Day Law & Associates, PC, Portland, filed the petition for review for petitioners Dominic Aiello and Asha Aiello.

          Eric C. Winters, Wilsonville, filed the petition for review for petitioner Starrett.

          Denise G. Fjordbeck, Assistant Attorney General, Salem, filed the answering memorandum for respondent. Also on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Margaret Olney, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the memorandum on behalf of amici curiae Walter John Knutson, Michael Z. Cahana, and Alcena E. Boozer.

          Greg Wasson, Salem, filed the memorandum on behalf of amicus curiae himself.

         Case Summary: Petitioners challenged aspects of the certified ballot title that the Attorney General prepared for Initiative Petition (IP) 43 (2018). If approved, IP 43 would, with exceptions including a limited registration scheme, prohibit the unlawful possession or transfer of an "assault weapon" or a "large capacity magazine," as those terms are defined in the proposed measure. Held: (1) Aspects of the ballot title that describe the registration exception must be modified to accurately describe that exception; (2) the caption and the "yes" result statement must be modified to state that IP 43 would criminalize the possession and transfer of many semiautomatic weapons, as well as magazines holding over 10 rounds, instead of referring to" 'assault weapons' (defined), 'large capacity magazines' (defined)"; (3) the "yes" result statement also must be modified to explain that a current owner must either register a covered weapon or magazine, or must surrender, transfer, or destroy it; (4) the "no" result statement must be modified to more accurately describe current bans on "possession," rather than "purchases"; and (5) the summary must be modified to state that a current owner must take certain steps within 120 days of the effective date of IP 43, that IP 43 would create a new felony, and that IP 43 would limit the use of covered items.

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

          BALMER, C. J.

         In these consolidated cases, petitioners seek review of the Attorney General's certified ballot title for Initiative Petition (IP) 43 (2018), contending that various aspects do not comply with requirements set out in ORS 250.035(2). We review the certified ballot title to determine whether it substantially complies with those requirements. See ORS 250.085(5) (setting out that standard). For the reasons explained below, we refer the ballot title to the Attorney General for modification.

         I. BACKGROUND

         IP 43, a copy of which is attached as an Appendix, proposes a statutory enactment that, with exceptions including a limited registration scheme, would prohibit the unlawful possession or transfer of an "assault weapon" or a "large capacity magazine," as those terms are defined in the proposed measure. The measure defines "[a]ssault weapon" to include the following firearms, unless made permanently inoperable: (1) a semiautomatic rifle or pistol with the capacity to accept a detachable magazine, coupled with at least one additional listed feature;[1] (2) a semiautomatic pistol, or a semiautomatic, centerfire, or rimfire rifle with a fixed magazine, with the capacity to accept more than 10 rounds of ammunition; (3) a semiautomatic, centerfire rifle with an overall length of less than 30 inches; (4) a semiautomatic shotgun with a variety of identifiable features; and (5) a shotgun with a revolving cylinder. IP 43, § 3(1). That definition also includes a conversion kit from which an assault weapon can be assembled if parts are in the possession or under the control of the same person. IP 43, § 3(1)(a)(F). "Large capacity magazine" is defined as "any ammunition feeding device with the capacity to accept more than 10 rounds or any conversion kit or combination of parts from which such a device can be assembled," with exceptions that include a particular type of tubular magazine, a particular type of feeding device, or a feeding device that has been permanently altered so as not to accommodate more than 10 rounds. Id. at § 3(6).[2]

         After defining the weapons and magazines within its scope, IP 43 creates a new crime, "unlawful possession or transfer of an assault weapon or large capacity magazine," for any person who "manufactures, imports, possesses, purchases, sells or transfers any assault weapon or large capacity magazine," with exceptions. Id. at § 4(1). Exceptions include possession or transfer involving government officers, agents, and employees; members of the United States Armed Forces; or peace officers (all while acting within the scope of duty), id. at § 4(2)(a), as well as the related manufacture, sale, or transfer concerning the Armed Forces or state law enforcement, id. at § 4(2)(b) - (c). The final exceptions include compliance with the provisions described next, which apply only to persons who own covered items prior to IP 43 becoming effective (January 1, 2019), or who inherit covered items after that date. Id. at §§ 4(1), 8. The new crime is a Class B felony. Id. at § 4(6).

         For any person who already legally possesses an assault weapon or a large capacity magazine prior to the effective date, IP 43 requires that person to take one of the following actions within 120 days after that date: sell the weapon or magazine to a licensed dealer; surrender it to law enforcement for destruction; remove it from the state; render it permanently inoperable (weapons only, not magazines); or, if eligible, register it with the Oregon State Police (OSP), as explained below. Id. at § 4(3). Any person who inherits an assault weapon or a large capacity magazine after the effective date must take one of the same actions, within 120 days after acquiring title, except that removal from the state is not an available option. Id. at § 4(4).[3]

         Although registration is permitted in the circumstances just described, an owner who registers a covered item may not purchase any additional assault weapon or large capacity magazine. Id. at § 5(6). IP 43 thus would operate to impose a partial ban on the future acquisition of covered weapons or magazines in Oregon by nonexempt military, government, or peace officer users: Other than inherited items, only covered items owned prior to the effective date and then properly registered within 120 days would be permitted.

         The registration process imposes additional conditions on the narrow categories of owners who are permitted to seek registration-that is, those who own an assault weapon or a large capacity magazine prior to the effective date of IP 43, and those who inherit covered items thereafter. First, the owner must submit a form application to OSP containing certain information, and the owner must allow OSP to conduct a criminal background check to ensure that he or she is not a "prohibited possessor" under ORS 166.250.[4] Id. at § 5(2) - (3). Second, the owner must submit satisfactory evidence to OSP that he or she (1) has securely stored the weapon or magazine pursuant to existing law and any rules or regulations that OSP may adopt; and (2) will possess it only on his or her own property, on another's property with express permission, or on other permitted properties for certain purposes (e.g., on the premises of a licensed dealer or gunsmith for lawful repair purposes; at a public or private shooting range or gallery; at firearms competitions, exhibitions, or displays with additional restrictions; or while transporting to an authorized location). Id. at § 5(4). Once a weapon or magazine is registered, the owner may not sell or transfer it, except to a licensed dealer or gunsmith for certain purposes; and, as noted, the owner may not purchase any additional assault weapon or large capacity magazine. Id. at § 5(5) - (6).

         IP 43 includes a number of provisions that facilitate OSP's involvement with the new requirements, including retaining a registry of information obtained through the registration process; OSP also must adopt rules to administer that registry (including renewal and revocation procedures, and storage for weapons and magazines). Id. at § 6(4). IP 43 further provides that the record of information collected for registration purposes is exempt from disclosure under the Public Records Law, id. at § 6(5), and it expressly declares its provisions severable, id. at § 7.

         The Attorney General prepared a draft ballot title for IP 43, ORS 250.065(3), and the Secretary of State circulated that ballot title for public comment, ORS 250.067(1). After receiving more than 1, 000 comments, the Attorney General modified her draft ballot title, ORS 250.067(2)(a), and certified the following ballot title to the Secretary of State:

"Prohibits 'assault weapons' (denned), 'large capacity magazines' (denned), unless registered with state police. Criminal penalties
"Result of 'Yes' Vote: 'Yes' vote prohibits 'assault weapons' (denned), 'large capacity magazines' (defined), unless registered with State Police after background check. Criminal penalties. State Police must maintain registry.
"Result of 'No' Vote: 'No' vote retains current law requiring background check for firearm purchases, barring purchases by certain individuals, and not requiring registration of firearms or ammunition magazines.
"Summary: Measure prohibits 'assault weapons' (denned), 'large capacity magazines' (denned), unless registered with State Police after background check. Criminal penalties.
"'Assault weapons' definition includes: "• Semiautomatic rifles with detachable magazine and certain additional features;
"• 'Semiautomatic, centerfire or rimfire rifles,' or semiautomatic pistol, capable of holding more than ten bullets with fixed magazine;
"• Semiautomatic centerfire rifles under thirty inches;
"• Semiautomatic handguns with certain additional features; "• Semiautomatic shotguns with certain additional features; "• Shotguns with revolving cylinders.
"'Large capacity magazines' denned as capable of holding over 10 rounds, excluding tubular magazines in .22 caliber or lever-action firearms.
"Covered items not registered must be sold/surrendered/ destroyed. State Police must maintain registry. Acquisition mostly prohibited after effective date, January 1, 2019. Measure may limit uses of covered items. Other provisions."

         Petitioners are electors who timely submitted comments about the Attorney General's draft ballot title and who now are dissatisfied with all parts of the certified ballot title, including material that the Attorney General added after the comment period ended. See ORS 250.085(2) (describing who may challenge certified ballot title); ORS 250.085(6) (Supreme Court may consider arguments about material added after comment period ended). We address their arguments below.[5]

         II. ANALYSIS

         A. Caption

         We begin with the caption, which must, in 15 or fewer words, "reasonably identif[y] the subject matter" of the proposed measure. ORS 250.035(2)(a). Petitioners raise several challenges to the caption, and we agree that the caption must be modified in certain respects, as explained below.

         First, petitioners challenge the wording that refers to the registration requirements described in IP 43, sections 4(3)(e) and 4(4)(d)-that is, that the proposed measure would prohibit assault weapons and large capacity magazines "unless registered with state police." They argue that that quoted phrase is misleading because it implies that the registration exception would apply to future acquisitions, but, under IP 43, only inherited items are subject to such an exception after the effective date.

         As an initial matter, we agree with the parties that the "subject matter" of IP 43, which the caption must identify, includes both the prohibition on assault weapons and large capacity magazines, and the accompanying registration exception. See Parrish v. Rosenblum, 362 Or. 96, 102, 403 P.3d 786 (2017) ("subject matter" refers to the "actual major effect" of a proposed measure or, "if the measure has more than one major effect, all such effects within [the] applicable word limit" (internal quotation marks omitted)); Rasmussen v. Kroger, 350 Or. 281, 285, 253 P.3d 1031 (2011) (to identify the actual major effect, the Attorney General must consider the "changes that the proposed measure would enact in the context of existing law"). The central major effect of IP 43 is the criminal prohibition on the possession or transfer of the covered weapons and magazines. IP 43, § 4(1).[6] The registration exception is another effect that flows from that prohibition, as do many other of the measure's effects. Unlike other effects, however, the registration exception is subject to extensive additional requirements. IP 43, § 5. And the registration exception is the only means by which a current owner of a covered, operable weapon or magazine may retain ownership, with continuing possession in Oregon, after the effective date. Given those considerations, the registration exception is a major effect that is appropriately mentioned in the caption. See Swanson v. Rosenblum, 362 Or. 143, 146-47, 404 P.3d 949 (2017) (concluding that, to accurately convey the scope of a term limits measure, the caption must mention both the new limits and how they would be calculated; distinguishing that scenario from a ballot title that appropriately mentions the details of a complex measure in the result statements or the summary, instead of in the caption).

         We agree with petitioners, however, that the caption inaccurately describes the registration exception. By stating that assault weapons and large capacity magazines are prohibited "unless registered with state police," the caption implies that the exception generally permits registered ownership after IP 43 goes into effect. But, unless a covered weapon or magazine is inherited later, the exception applies only at the outset-that is, to any person who possesses a prohibited weapon or magazine prior to the proposed measure becoming effective (who then has 120 days to either register the weapon or magazine, or take a different required, alternative step). IP 43, § 4(3). (For inherited items, the registration exception applies for 120 days after the owner acquires title, id. at § 4(4)(d).) No other person is permitted to register a covered item, at any time. The caption must be modified accordingly.

         Petitioners raise another challenge to the caption that merits discussion. They argue that the terms "assault weapons" and "large capacity magazines" do not reasonably identify the subject matter of IP 43, and, instead, are impermissibly deceptive, confusing, and underinclusive. They assert that voters would share no common understanding of either term, except perhaps in reference to military-style weapons and their magazines (e.g., automatic weapons, such as machine guns; or military-style semiautomatic weapons, such as AR-I5s or AK-47s). In petitioners' view, however, IP 43 would prohibit possession of a "wide array of commonly owned" semiautomatic weapons and their magazines. For example, one definition of "assault weapon" in IP 43 is a semiautomatic rifle with the capacity to accept a detachable magazine and having at least one of several other identified features, IP 43, § 3(1)(a)(A), but petitioners contend that many of the listed features-as well as detached magazine capacity-are standard.[7] They offer many additional examples, citing various IP 43 definitions involving rifles, shotguns, and pistols, to contend that the proposed measure is exceptionally broad in scope.[8] The same is true, petitioners add, of magazines falling within the definition of "large capacity magazine"-that is, "any ammunition feeding device with the capacity to accept more than 10 rounds" or a conversion kit, with exceptions. IP 43, § 3(6). They emphasize that, (1) contrary to its own definition in IP 43, "large" suggests a number far exceeding 10; (2) most modern semiautomatic pistols are equipped with standard-issue magazines capable of holding 14-18 rounds; and (3) magazines holding more than 10 rounds also are standard for most handguns and rifles. It follows, they conclude, that "virtually all," "almost all," or "most" semiautomatic rifles, shotguns, and pistols, and their magazines, would be subject to IP 43, but voters likely would not recognize that many "commonly used" items would be so "[en]snared."

         The Attorney General acknowledges the lack of a shared understanding of the terms "assault weapons" and "large capacity magazines," but she contends that it is impossible to craft more accurate definitions-without omission or oversimplification-in the 15 words allotted for the caption.[9] In the Attorney General's view, the use of quotation marks surrounding those terms, coupled with the elaborating signals, "(defined)," sufficiently conveys that the measure itself defines the terms "assault weapon" and "large capacity magazine." See Chamberlain v. Myers, 344 Or. 612, 616, 188 P.3d 240 (2008) (court has required the Attorney General to place quotation marks around a term taken from a proposed measure, when the meaning is ambiguous); Carley/Towers v. Myers, 340 Or. 222, 232-33, 132 P.3d 651 (2006) (requiring, at the least, that a signal such as "(defined)" accompany an unfamiliar, quoted abbreviation, when the abbreviation would lead to unnecessary confusion). Petitioners, in turn, disagree that the quotation marks and accompanying "(defined)" signals render the caption substantially compliant with ORS 250.035(2)(a).[10] For the reasons explained below, we agree with petitioners.

         This court's decision in Tauman v. Myers, 343 Or. 299, 170 P.3d 556 (2007), involved similar-albeit not identical-circumstances as those involved here. The proposed measure in that case had set out a constitutional amendment that would have limited the recovery of noneconomic and punitive damages from a "charity," which the measure broadly defined as a nonprofit organization exempt from federal income taxes due to an extensive array of identified activities. The Attorney General included the quoted term "charity" in the caption, followed by "(defined)." Id. at 301. The petitioner challenged that aspect of the caption, arguing that it would leave most readers with "a false impression about the proposed measure's scope"-namely, that the measure was limited to organizations engaged in providing free assistance to the poor, the suffering, or the distressed-as opposed to more broadly including other nonprofit organizations. Id. at 302. This court agreed that the measure defined the term "charity" "more broadly than the term commonly is understood," such that the caption, in turn, "ha[d] the potential to leave petition signers and voters with a false impression of the proposed measure's subject matter." Id. at 303. The court rejected the Attorney General's argument that the accompanying signal, "(defined)," rendered the caption satisfactory under the substantial compliance standard:

"Although this court has approved the use of specially denned terms in quotation marks, followed by the word 'defined' in parentheses, to signal that the proposed measure specially defines a term and uses it in that specially denned sense, this court has never held that the use of such signals is always sufficient to ensure compliance with statutory standards. Rather, the court has approved those signals when, for example, the meaning of the disputed term was ambiguous and the proposed measure denned the term in a manner generally consistent with an accepted meaning of the term. Here, by contrast, the proposed measure gives the term 'charity' a unique definition that is significantly broader than its common definition. Under those circumstances, the signals described in Carley/Towers do little to cure the confusion caused by the caption's use of the term."

343 Or at 303-04 (internal quotation marks and citations omitted). In other cases, this court similarly has determined that using a quoted term from the measure may not be permissible, when the measure defines the term in an "uncommon, if not unique" way. See, e.g., Sager v. Myers, 328 Or. 528, 531-33, 982 P.2d 1104 (1999) (so stating, in context of modifying a ballot title caption using the term "job performance" from proposed initiative about teacher pay, defined as the degree to which the students' appropriate knowledge increased while under a teacher's instruction); Witt v. Kulongoski, 319 Or. 7, 14-17, 872 P.2d 14 (1994) (court modified caption using the term "clearcutting," when the proposed measure gave that term "a very different and uncommon meaning," but the caption did not so notify voters); see also Kain/Waller v. Myers, 337 Or. 36, 40, 93 P.3d 62 (2004) (caption must use terms that identify the subject matter and neither understate nor overstate the scope of the legal changes that the measure would enact).

         As described above, petitioners argue that, if a commonly understood meaning of "assault weapons" exists, it refers to military-style weapons, not semiautomatic weapons with the types of features described in IP 43 (many of which, they contend, are "standard"). We cannot say whether that is so, but we do agree (as does the Attorney General) that different voters reasonably could draw different meanings from the term "assault weapons"-some might think that it refers to only military-style weapons; some might think that it refers to the types of weapons that are described in IP 43; and some might think that it refers to an even more broad group of weapons. Similarly, different voters reasonably could draw different meanings from the term "large capacity magazines"-some thinking that it referred to magazines holding 10 rounds or fewer, but others thinking that it referred to magazines holding far more than 10 rounds.

         This case is not necessarily the same as Tauman, in which the proposed measure defined a term more broadly than its commonly understood meaning. But, in light of the particular definitions of "assault weapon" and "large capacity magazine" set out in IP 43, we agree with petitioners that the use of those terms in the caption-even if surrounded by quotation marks and accompanied by "(defined)"-would confuse or mislead voters about the measure's subject matter. See Greene v. Kulongoski, 322 Or. 169, 174-75, 903 P.2d 366 (1995) (caption must accurately describe subject matter "in terms that will not confuse or mislead potential petition signers and voters"). IP 43 provides broad definitions for both terms that differ from what at least some voters reasonably would think was meant by the terms "assault weapons" and "large capacity magazines," and, as explained, other voters reasonably may draw other, contrasting meanings from each term. See Swanson, 362 Or at 146-47 (requiring modification of a caption when its wording could cause voters to reasonably misunderstand how the proposed measure's operative provision would apply). It follows that that aspect of the caption does not substantially comply with ORS 250.035 (2)(a).

         We understand the Attorney General's expressed difficulty-given the 15-word limit for the caption-in crafting a more accurate description of the defined terms "assault weapon" and "large capacity magazine." And we disagree with petitioners' argument that the caption must state that IP 43 would ban "virtually all," "almost all," or "most" semiautomatic weapons and their magazines-those are factual contentions that are beyond the scope of the questions before us in these consolidated challenges to the certified ballot title. But, given the particular definitions set out in IP 43, section 3, we conclude that the caption could accurately state that the proposed measure would criminalize the possession and transfer of many semiautomatic weapons, as well as magazines holding over 10 rounds. We refer the caption to the Attorney General for modification.

         B. "Yes" and "No" Result Statements

         We turn to the "yes" and "no" result statements, which must be "simple and understandable" statements not exceeding 25 words that "describe [] the result" if the proposed measure is approved or rejected. ORS 250.035(2)(b) - (c). Petitioners first challenge the "yes" result statement for the same reasons identified above, that is, that it inaccurately describes the registration exception, IP 43, §§ 4(3)(e), 4(4)(d), and also inaccurately conveys the scope of the measure in light of the particular definitions of "assault weapon" and "large capacity magazine," id. at §§ 3(1), (6). We agree, for the reasons explained above, that the Attorney General must modify the "yes" result statement in those respects. See, e.g., Lavey v. Kroger, 350 Or at 559, 564, 258 P.3d 1194 (2011) (to substantially comply with the statutory requirements ...


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