Unger v. Rosenblum

672 March 3, 2016 No. 9

IN THE SUPREME COURT OF THE

STATE OF OREGON

Ben UNGER,

LaToya Fick, and

Carmen Rubio,

Petitioners,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S063766)

En Banc

On petition to review ballot title filed December 28, 2015,

considered and under advisement on February 9, 2016.

Margaret S. Olney, Bennett, Hartman, Morris & Kaplan

LLP, Portland, filed the petition for petitioner Unger. Gregory

A. Chaimov, Davis Wright Tremaine LLP, Portland, filed

the petition for petitioners Fick and Rubio.

Shannon T. Reel, Assistant Attorney General, Salem,

filed the answering memorandum. With her on the answer-

ing memorandum were Ellen F. Rosenblum, Attorney

General, and Paul L. Smith, Deputy Solicitor General.

Elden M. Rosenthal, Rosenthal, Greene & Devlin, P.C.,

Portland, filed the memorandum for amici curiae Ted

Kulongoski and Tim Nesbitt.

Margaret S. Olney, Bennett, Hartman, Morris & Kaplan

LLP, Portland, filed the memorandum for amicus curiae

Peter Buckley.

LANDAU, J.

The ballot title is referred to the Attorney General for

modification.

Case Summary: Initiative Petition 65 (2016) would establish a “High School

Graduation and College and Career Readiness Fund” within the General Fund.

Petitioners challenged the caption, the “yes” vote result statement and the sum-

mary of the certified ballot title. Held: (1) the ballot title’s caption is deficient

Cite as 358 Or 672 (2016) 673

because it speculates about the possible effects of the measure by stating that IP

65 “reduces funds for other services”; (2) on referral, the Attorney General may

address similar statements in the ballot title’s “yes” vote result statement and

summary asserting that funds required for IP 65 would be “unavailable for other

programs/services” because those statements may be misleading.

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

674 Unger v. Rosenblum

LANDAU, J.

Petitioners seek review of the Attorney General’s

certified ballot title for Initiative Petition 65 (2016) (IP 65),

arguing that the ballot title does not satisfy the require-

ments of ORS 250.035(2). This court reviews a certified

ballot title to determine whether it substantially complies

with the requirements of that statute. See ORS 250.085(5).

For the following reasons, we refer the ballot title to the

Attorney General for modification.

IP 65, if enacted, would establish a “High School

Graduation and College and Career Readiness Fund”

(Readiness Fund) within the state General Fund for the

purposes of—as the title of the fund suggests—improving

high school graduation rates and college and career readi-

ness. The measure would require the legislature, beginning

in 2017, to “appropriate, allocate or otherwise make avail-

able” to the fund not less than $800 per student per year.

Thereafter, the measure would require that the amounts

appropriated, allocated, or otherwise made available be

increased in accordance with Executive Order No. 14-14,

which requires the Oregon Department of Education bien-

nially to estimate the costs to maintain current levels of

performance for the State School Fund. The measure would

require the fund itself to be apportioned among school dis-

tricts based on the “extended weighted average daily mem-

bership” of high school districts, as provided under ORS

327.013(1)(c), which generally adjusts the calculation of

student population in a given district to reflect higher costs

associated with educating certain student populations. The

measure would provide that the funds allocated from the

Readiness Fund would be in addition to any other funds

that the legislature would appropriate, allocate, or make

available as part of the ordinary public education budgeting

process.

Under the terms of IP 65, school districts would be

required to apply to receive appropriations from the new

fund, in accordance with eligibility requirements to be

adopted by the State Board of Education. Those districts

meeting the eligibility requirements would then be respon-

sible for using some of the appropriations “to establish and

Cite as 358 Or 672 (2016) 675

expand career-technical education programs in high schools

that are relevant to the job market in the community or

region the school district serves.” The measure would further

require such school districts to use some portion of the funds

“to establish and expand college-level educational oppor-

tunities for students in high schools,” as well as “dropout-

prevention strategies” in high schools. And it would place a

cap on the percentage of appropriations from the new fund

that may be applied to school district “administrative costs.”

IP 65 also would require the Oregon Department of

Education to monitor the performance of districts receiving

money from the Graduation and Readiness Fund, to “inter-

vene where necessary” to ensure appropriate use of the

fund, and to “[f]acilitate continuous improvement of use” of

the fund. To pay for that work, the measure would authorize

the department to retain a small portion of the fund.

The Attorney General certified the following ballot

title for IP 65:

“Requires state funding for dropout-prevention,

career/college readiness programs;

reduces funds for other services

“Result of ‘Yes’ Vote:  ‘Yes’ vote requires state to fund

dropout-prevention, career/college readiness programs

through grants; state monitors programs. Required funds

unavailable for other programs/services.

“Result of ‘No’ Vote:  ‘No’ vote retains current law: leg-

islature not required to commit funds to career-technical/

college-level education/dropout-prevention programs; retains

discretion to allocate funds.

“Summary: Currently, legislature provides General

Fund revenues to State School Fund based on constitution-

ally required quality goals; funds distributed directly to

school districts under specified formula. Measure requires

legislature to separately provide at least $800 per high

school student—adjusted upward annually for inflation/

population—to Department of Education (ODE) adminis-

tered account; reduces General Fund revenues otherwise

available for education, public services. ODE distributes

those funds to school districts to establish/expand high

school programs providing career-technical education,

676 Unger v. Rosenblum

college-level courses, and dropout-prevention strategies.

School districts must apply for grants, meet specified

requirements. Districts may use limited portion of fund

for administration costs but not unrelated activities. ODE

monitors school district performance, ensures compliance,

facilitates programs; Secretary of State audits biannually.

Other provisions.”

Petitioner Unger contends that the certified ballot

title is deficient in several respects pertaining to the “no”

vote result statement and the summary. We reject those con-

tentions without discussion.

Petitioners Fick and Rubio also challenge the ballot

title, arguing that the caption does not reasonably identify

the subject of IP 65, that the ‘yes’ and ‘no’ vote result state-

ments do not accurately identify the consequences of voting

one way or the other, and that the summary is deficient in

that it carries forward problems with the caption and the

result statements.

We begin with their arguments about the caption.

ORS 250.035(2)(a) provides that a ballot title caption must

“reasonably identif[y] the subject matter of the state mea-

sure.” In this case, petitioners argue that the caption fails

to meet that standard because it states that IP 65 “reduces

funds for other services.” According to petitioners, nothing

in the wording of IP 65 would reduce funds for other ser-

vices. At best, they argue, the statement amounts to spec-

ulation about the possible budgetary effects of enacting the

proposed measure.

Citing Novick v. Myers, 333 Or 12, 16-17, 35 P3d

1017 (2001), the Attorney General defends the inclusion of

the phrase, arguing that, IP 65 does, in fact, reduce funds

for other services,

“because it mandates that the legislature appropriate to

the Readiness Fund a certain amount per year from the

General Fund. Because those moneys must be appropri-

ated to the Readiness Fund, those moneys are therefore

unavailable for other services.”

(Emphasis in original.)

The Attorney General’s reliance on Novick is mis-

placed. In that case, the proposed ballot measure would

Cite as 358 Or 672 (2016) 677

have allocated 10 percent of income tax revenues for high-

way construction and maintenance. 333 Or at 15. This court

held that the certified ballot title was deficient in that it

failed to explain that, by requiring a specified percentage of

income tax revenues to be devoted to one purpose, the mea-

sure necessarily resulted in a reduction in revenues for other

purposes. Id. at 17.

In contrast, in this case, IP 65 does not require that

a percentage of General Fund revenues be devoted to the

Readiness Fund. Rather, it requires that a specific amount

of money—$800 per student per year—be set aside for that

fund. Nothing in the wording of the measure itself reduces

funds for other services. And nothing in it would necessarily

have the effect of requiring a reduction in funds for other

services. It might or might not, depending how much money

was in the General Fund to begin with. If there were suf-

ficient money in the General Fund to cover the cost of the

Readiness Fund, for example, reductions in funding for

other services would not be required. Consequently, any

statement that IP 65 “reduces funds for other services” is,

at best, speculation. As this court has consistently stated,

it will not “speculate—or * * * permit the Attorney General

to speculate—about the possible effects of a proposed mea-

sure.” Wolf v. Myers, 343 Or 494, 500, 173 P3d 812 (2007); see

also Pelikan/Tauman v. Myers, 342 Or 383, 389, 153 P3d 117

(2007) (“[T]his court has explained that it will not speculate

about the possible effects of a proposed measure.”); Kain v.

Myers (S49089), 333 Or 446, 451, 41 P3d 416 (2002) (ballot

title need not mention “conditional and conjectural” effects

of proposed measure). The ballot title must be referred to

the Attorney General for modification of the caption.

Petitioners argue that the caption also is deficient

because it fails to make clear that IP 65 provides funds solely

for high-school activities, when current state policy places

career-technical education in “school districts, community

colleges, federal and state workforce training programs,

private career and technical education schools, apprentice-

ship programs and institutes of higher education.” ORS

344.055(1). The Attorney General responds that, although

the caption does not state explicitly that the measure’s focus

is high-school programs, when the ballot title is read as a

678 Unger v. Rosenblum

whole, the focus of the measure on high school programs

becomes clear. We note that the deletion of the clause con-

cerning the reduction of funds should provide enough words

for the Attorney General to address that issue on referral, if

she so chooses.

Petitioners challenge the “yes” vote result state-

ment on the ground that it carries forward the problem

with the caption in repeating that enactment of IP 65 would

reduce funds for other services. The wording of the “yes”

vote result statement, however, is not precisely the same as

that of the caption in that regard. While the caption states

that IP 65, if enacted, “reduces funds for other services,” the

“yes” vote result statement asserts that “[r]equired funds

[are] unavailable for other programs/services.” (Emphasis

added.) Strictly speaking, the assertion in the result state-

ment is accurate: Funds required for the Graduation and

Readiness Fund are not “available” for other programs or

services. Still, the statement could be misleading in that

it could be taken to suggest what the caption erroneously

states, namely, that IP 65 necessarily would reduce funds

for other services. Petitioners likewise complain that the

summary carries forward the same defect. The Attorney

General can address those issues, too, on referral, if she so

chooses.

Petitioners advance other arguments, which we

reject without discussion.

The ballot title is referred to the Attorney General

for modification.