Unger v. Rosenblum ( 2016 )

672 March 3, 2016 No. 9
IN THE SUPREME COURT OF THE
STATE OF OREGON
Ben UNGER,
LaToya Fick, and
Carmen Rubio,
Petitioner,
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 opportu-
nities for students in high schools,” as well as “dropout-pre-
vention 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-techni-
cal/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 ten 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.