Swanson v. Rosenblum

No. 59 November 9, 2017 143

IN THE SUPREME COURT OF THE

STATE OF OREGON

Matt SWANSON,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S065181)

En Banc

On petition to review ballot title filed August 8, 2017; con-

sidered and under advisement on September 26, 2017.

Harry B. Wilson, Markowitz Herbold PC, Portland, filed

the petition for review and the replying memorandum on

behalf of petitioner.

Jacob Brown, Assistant Attorney General, Salem, filed

the answering memorandum for respondent. Also on the

memorandum were Ellen F. Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

WALTERS, J.

The ballot title is referred to the Attorney General for

modification.

Case Summary: Petitioner sought review of Attorney General’s certified bal-

lot title for Initiative Petition 19, which, if adopted, would limit state legislators

to serving no more than eight years in any twelve-year period. Held: The ballot

title’s caption did not substantially comply with ORS 250.035(2)(a) because it

failed to inform voters of the measure’s retroactive application, which is a major

effect of the proposed measure.

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

144 Swanson v. Rosenblum

WALTERS, J.

Petitioner seeks review of the Attorney General’s

certified ballot title for Initiative Petition 19 (2018) (IP 19),

arguing that the ballot title caption does not satisfy the

requirements of ORS 250.035(2)(a). We review a certified

ballot title to determine whether it substantially complies

with those statutory requirements. See ORS 250.085(5)

(stating standard of review). For the reasons that follow,

we refer the ballot title to the Attorney General for modifi-

cation.

If adopted by voters, IP 19 would prohibit a person

from serving as a member of the Legislative Assembly for

more than eight years in any period of 12 years. Subject to

certain exceptions,1 IP 19 specifically provides that the state

measure would apply “retroactively to limit service by any

person who is a Representative or Senator upon the effec-

tive date of this Act, so that current or prior membership is

included in the calculation of years of service.”

The Attorney General certified the following ballot

title caption for IP 19:

“Limits service by state legislators: No more than

eight years in any twelve-year period.”

Petitioner contends that that caption does not com-

ply with ORS 250.035(2)(a), which provides that a ballot

title’s caption be no “more than 15 words that reasonably

identif[y] the subject matter of the state measure.” The “sub-

ject matter” of a measure is the “actual major effect” of the

measure or, “if the measure has more than one major effect,

all such effects (to the limit of the available words).” Whitsett

v. Kroger, 348 Or 243, 247, 230 P3d 545 (2010).

1

IP 19 identifies the following exceptions:

“a.)  A Representative or Senator elected in the November 2018 election

may serve out that full term, even if service in such position exceeds the time

limitations of this Act.

“b.)  A person who, at the time of passage of this Act, holds an office of

Senator that continues until January 2021 may continue to serve in such

position even if service in such position exceeds the time limitations of this

Act.”

Cite as 362 Or 143 (2017) 145

Although petitioner acknowledges that the caption

informs voters of one major effect of IP 19—its prohibition on

years of service—petitioner contends that it fails to inform

voters of another major effect—that the measure applies

retroactively, with exceptions. In petitioner’s view, the mea-

sure’s retroactive application is an actual major effect of the

measure for two reasons. First, petitioner submits, the pro-

posed measure will begin to change the composition of the

legislature in just two years, not in eight years, as voters

reasonably might presume. Petitioner explains that, with-

out notice to the contrary, voters reasonably could expect

that legislators would not be subject to the measure’s lim-

itations on legislative service until they had served for eight

years from the effective date of the measure; or, in other

words, voters reasonably might believe that past legislative

service would not be considered in applying the measure’s

prohibition. Second, petitioner contends, the measure’s ret-

roactive application is a major effect that must be signaled

because, if the measure is enacted, it will prohibit many cur-

rent legislators from completing their terms.

Addressing petitioner’s first argument, the Attorney

General submits that the caption does not include “tempo-

ral qualifications” and therefore adequately informs voters

that its length-of-service limitation applies to all legislative

service, including past and current service.2 The Attorney

General accepts that the caption could be more explicit;

however, she argues, further detail is not required to “rea-

sonably identif[y]” the measure’s major effect. Voters are

apprised of those details in the “Yes” vote statement and

the summary portions of the ballot title, and, the Attorney

General contends that that is sufficient.

Addressing petitioner’s second argument, the Attorney

General takes issue with petitioner’s interpretation of the

measure as prohibiting many current legislators from com-

pleting their terms. The Attorney General urges us not

to rely on that “speculative” interpretation as a basis for

requiring modification of the caption.

2

The Attorney General notes that petitioner did not make his first argu-

ment when commenting on the Attorney Generals’ draft ballot title. However, the

Attorney General does not contend that that failure forecloses our consideration

of petitioner’s argument and, instead, addresses its merits.

146 Swanson v. Rosenblum

For the following reasons, we agree with petitioner’s

first argument and refer the ballot title to the Attorney

General for modification. As a result, we need not, and do

not, address petitioner’s second argument.

As noted, ORS 250.035(2)(a) requires a ballot title’s

caption to reasonably identify the “subject matter” of the pro-

posed measure. “To determine the subject matter of a pro-

posed measure, we first examine its words and the changes,

if any, that the proposed measure would enact in the con-

text of existing law.” Kain/Waller v. Myers, 337 Or 36, 41, 93

P3d 62 (2004). “We then examine the words of the caption

to determine whether they reasonably identify the proposed

measure’s subject matter”—i.e., its major effect, or, if more

than one, all such effects (to the limit of the available words).

Id.; see Whitsett, 348 Or at 247 (defining “subject matter”).

Currently, there is no term-limit restriction on a

state legislator’s service. If adopted, IP 19 would limit ser-

vice by state legislators and would prohibit them from serv-

ing more than eight years in any period of 12 years. The

certified ballot title caption informs voters of that change

in the law. However, although the measure specifically pro-

vides that “current or prior membership is included in the

calculation of years of service,” the certified caption does not

convey that information. We agree with petitioner that that

aspect of the measure is one of its major effects. If current

or prior membership were not used in determining a legis-

lator’s years of service, then the measure would not begin to

affect the composition of the state legislature for eight years.

Because current and prior membership is included in that

determination, the measure’s effect would be more immedi-

ate. Thus, the actual impact of the measure on the legisla-

ture’s composition is a major effect that must be described in

the ballot title’s caption.

The Attorney General does not disagree but con-

tends that the certified caption suffices to “reasonably iden-

tif[y]” that major effect. The Attorney General argues that

the lack of temporal limitation in the caption is sufficiently

informative and, citing Conroy v. Rosenblum, 358 Or 807,

816, 371 P3d 1180 (2016), that, although the caption could be

more specific, the detail that petitioner seeks is unnecessary

Cite as 362 Or 143 (2017) 147

and appears in the “Yes” vote result statement and sum-

mary. The Attorney General is incorrect in that analysis.

The caption is the cornerstone of the ballot title and

must describe “the proposed measure’s subject matter ‘accu-

rately and in terms that will not confuse or mislead poten-

tial petition signers and voters.’ ” Kain/Waller, 337 Or at 40

(quoting Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d

366 (1995)). Although, as we indicated in Conroy, there may

be instances in which a measure is complex and its details

are appropriately left to other parts of the ballot title, those

instances are ones in which the caption accurately identifies

the major effects of a measure in terms that will not confuse

voters. 358 Or at 816. Here, the certified ballot title does

not meet that standard. Without further information, voters

reasonably could think that the measure is prospective only;

that is, only legislative service after the effective date of the

measure will affect a legislator’s continued service. To make

the ballot title caption for IP 19 sufficiently informative and

clear, the Attorney General must describe its retroactive

effect. See Kain v. Myers (S49089), 333 Or 446, 449, 41 P3d

416 (2002) (even though caption did not include temporal

limitation, Attorney General conceded and court concluded

modification required when caption failed to state that pro-

posed measure, if adopted, would apply retroactively).

The ballot title is referred to the Attorney General

for modification.