Lavey v. Kroger
258 P.3d 1194
| Or. | 2011Background
- Petitioners challenge the Attorney General's certified ballot title for Initiative Petition 16 (2012) on studded-tire use.
- The measure would repeal two exemptions from the existing year-round studded-tire prohibition and bar road-authority variance permits.
- Current law ORS 815.160 bans studded-tire use; exemptions include several categories, notably (7) winter-season allowance and (12) retractable studded tires.
- Initiative Petition 16 would delete ORS 815.165(7) and (12) exemptions and amend ORS 818.200 to eliminate variance permits for studded-tire use.
- The ballot title contained a caption and “Yes”/“No” statements, which petitioners argue misstate the measure’s effect and subject matter; the court agrees on caption and yes-statement defects and directs modification; the opinion provides the statutory and case-law framework for evaluating ballot-title accuracy.
- The court ultimately refers the ballot title to the Attorney General for modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether caption complies with ORS 250.035(2)(a). | Lavey/Taylor: caption inaccurately claims a new year-round ban. | Kroger: caption reflects the major effect as described. | Caption does not substantially comply; referred for modification. |
| Whether the yes-vote statement complies with ORS 250.035(2)(b). | Lavey/Taylor: statement misdescribes the change (absolute ban). | Kroger: statement conveys legislative change. | Yes-statement not accurate; referred for modification. |
| Whether the overall subject matter is accurately identified. | Lavey/Taylor: subject matter scope too broad; omits remaining exemptions. | Kroger: subject matter identified by caption aligns with major effect. | Caption fails to identify subject matter accurately; referred for modification. |
Key Cases Cited
- Kain/Waller v. Myers, 337 Or. 36 (2004) (requires accurate subject matter identification in ballot captions)
- Greene v. Kulongoski, 322 Or. 169 (1995) (caption must accurately reflect measure’s subject matter)
- Whitsett v. Kroger, 348 Or. 243 (2010) (defines ‘subject matter’ as actual major effect and analyzes caption accordingly)
- Rasmussen v. Kroger, 350 Or. 281 (2011) (explains major effects and how caption should identify them)
- Brady/Berman v. Kroger, 347 Or. 518 (2009) (addressed caption wording reflecting limited scope of change)