413 P.3d 966
Or.2018Background
- Petitioners challenged the Attorney General's certified ballot title for Initiative Petition 28 (IP 28); the Oregon Supreme Court reviews ballot titles for substantial compliance with ORS 250.035(2).
- IP 28 would add a sentence to Article I, §8 allowing laws that "regulate contributions and expenditures...to influence the outcome of any election" provided such laws are "adopted or amended by initiative or by an elected legislative body by a three‑fourths vote."
- The Attorney General's certified ballot title mentioned that Measure 47 (2006) "becomes law," summarized IP 28 as permitting regulation of campaign contributions/expenditures, and did not signal ambiguity about the scope of "regulate" or whether the three‑quarters requirement applies to initiatives.
- Petitioners argued the caption, yes/no result statements, and summary were misleading or incomplete: (1) reference to Measure 47 is speculative and confuses the major effect; (2) the term "regulate" is ambiguous as to its scope (disclosure vs. substantive limits); (3) ambiguity whether the three‑quarters vote requirement applies to initiatives; and (4) the yes/no statements failed to describe present law and major effects.
- The court concluded the caption, result statements, and summary did not substantially comply with ORS 250.035(2) and referred the ballot title back to the Attorney General for modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether caption may state "Measure 47 (2006) becomes law" | Markley/Hedbor/Lutz: reference is speculative and not the measure's major effect; confuses voters | AG: mentioning Measure 47 explains a concrete consequence of amendment | Court: Reference to Measure 47 in caption is inappropriate; caption should not mention it |
| Whether caption/summary must signal ambiguity of the word "regulate" | Petitioners: "regulate" can mean disclosure or substantive limits; caption must signal that uncertainty | AG: ordinary meaning of "regulate" suffices to inform voters | Court: "Regulate" is ambiguous in context of expressive activity; caption/summary should flag that uncertainty |
| Whether three‑quarters vote requirement must be disclosed and whether it applies to initiatives | Lutz: three‑quarters requirement is a significant effect and should be in result statement; ambiguity whether it applies to initiatives | AG: phrase placement implies it applies only to elected legislative bodies | Court: Three‑quarters requirement is a significant effect and must appear in the "yes" result; proviso is ambiguous as to whether it also applies to initiatives and that ambiguity should be captured |
| Whether summary/yes/no statements can state Measure 47 will "become law" if IP 28 passes | Petitioners: prediction is speculative; IP 28 may only allow laws consistent with First Amendment and Measure 47 may not be First Amendment‑compliant | AG: IP 28 provides constitutional authorization that would allow Measure 47 to take effect under its own terms; constitutionality is for future challenge | Court: AG's definitive statement is inaccurate; proper description is that Measure 47 might be revived (speculative) and summary must be revised |
Key Cases Cited
- Vannatta v. Keisling, 324 Or. 514 (1997) (contributions to candidates are protected expression under Article I, §8)
- Hazell v. Brown, 352 Or. 455 (2012) (explains Measure 47 (2006) and section 9(f) contingency that would codify Measure 47 but delay its operation until constitution allows limitations)
- Wolf v. Myers, 343 Or. 494 (2007) (ballot titles should signal when terms in measure are ambiguous)
- Meyer v. Bradbury, 341 Or. 288 (2006) (addressed drafting/description issues for ballot measures and separate‑amendment doctrine)
- Novick/Crew v. Myers, 337 Or. 568 (2004) ("yes" and "no" result statements must describe most significant/immediate effects and state current law accurately)
- Robertson v. State, 293 Or. 402 (1982) (interpretation of Article I, §8 free‑expression protection)