Buehler v. Rosenblum , 354 Or. 318 ( 2013 )

318 October 3, 2013 No. 49
IN THE SUPREME COURT OF THE
STATE OF OREGON
Knute BUEHLER
and Duane Ray Fletchall,
Petitioners,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(S061408)
En Banc
On petition to review ballot title filed June 18, 2013;
considered and under advisement August 6, 2013.
Kevin L. Mannix, Kevin L. Mannix PC, Salem, filed the
petition and reply memorandum for petitioners.
Laura S. Anderson, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
Daniel W. Meek, Portland, filed an amicus brief in support
of Certified Ballot Title for Initiative Petition 11 (2014).
Margaret S. Olney, Portland, filed an amicus brief in
support of Certified Ballot Title for Initiative Petition 11 (2014)
on behalf of Gail Rasmussen, BethAnne Dabry and Patrick
Green.
BREWER, J.
Ballot title referred to the Attorney General for modi-
fication.
Two petitioners seek review of the Attorney General’s certified ballot title
for Initiative Petition 11 (2014). Initiative Petition 11, if approved by the voters,
would enact the “Our Oregon Signatures Count Act.” In general, the proposed
ballot measure would give registered voters “who ha[ve] committed no violation
of law” a statutory right—enforceable in the courts—to have their signatures
counted on a petition for an initiative, a referendum, a candidate nomination,
formation of a political party, or a recall. Petitioners and amici assert, among
other things, that the ballot title’s “yes” vote result statement and summary fail
Cite as 354 Or 318 (2013) 319
to substantially comply with the statutory requirements for ballot titles. Held:
The Attorney General’s “yes” vote result statement failed to substantially comply
with the statutory requirements for ballot titles because the statement is legally
incorrect and potentially misleading. The Supreme Court also held that the
summary of the ballot title did not accurately summarize the major effect of the
measure, as also required by statute. Accordingly, the Supreme Court referred
the ballot title to the Attorney General for modification.
Ballot title referred to the Attorney General for modification.
320 Buehler v. Rosenblum
BREWER, J.
Two petitioners seek review of the Attorney Gen-
eral’s certified ballot title for Initiative Petition 11 (2014).
See ORS 250.085(2) (specifying requirements for seeking
review of certified ballot titles). We also have received briefs
from amici curiae Rasmussen, Darby, and Green in support
of the certified ballot title, and amicus Meek in opposition
to it. Among them, petitioners and Meek advance a host of
arguments asserting various inadequacies of the ballot title.
We review the ballot title to determine whether it substan-
tially complies with ORS 250.035(2). See ORS 250.085(5)
(stating standard of review). For the reasons explained below,
we refer the ballot title to the Attorney General for modifi-
cation.
Initiative Petition 11, if approved by the voters,
would enact the “Our Oregon Signatures Count Act.” In gen-
eral, the proposed ballot measure would give registered
voters “who ha[ve] committed no violation of law” a statutory
right—enforceable in the courts—to have their signatures
counted on a petition for an initiative, a referendum, a candi-
date nomination, formation of a political party, or a recall. In
carrying out that objective, the measure includes provisions
related to signature gathering, voter registration, and ballot
titles for such petitions. Initiative Petition 11 provides, in
part:
“Section 3.  Laws and regulations may be enacted and
enforced to prevent forgery or fraud, and to maintain an
orderly process in the circulation of a petition. However, such
laws and regulations shall not be enforced in any manner
so as to prevent the petition signature of a registered voter,
who has committed no violation of law, from being included
in the determination whether the petition contains the
required number of signatures of voters.
“Section 4.  Notwithstanding ORS 250.042, the Secre-
tary of State and elections officers may not disqualify a
signature on a petition based on the failure of a circulator
to comply with a law governing the circulation of petitions
unless the secretary or elections officer determines that the
circulator’s failure was the result of a knowing and willful
violation of law.
“* * * * *
Cite as 354 Or 318 (2013) 321
“Section 10.  Except as required by the constitution
of this state, laws governing ballot titles for petitions and
ballot measures do not apply to petitions and ballot mea-
sures by citizen initiative that contain 100 words or fewer
of text (excluding the enacting or amendatory clause).
“Section 11.  Any ballot measure by citizen initiative
that contains 100 words or fewer of text (excluding the
enacting or amendatory clause) shall have the full text of
the measure presented on the ballot immediately after the
measure number and the enacting or amendatory clause.
The full text of the proposed measure shall be printed on
any petition sheet instead of any ballot title.
“Section 12.  If a registered voter signs a petition, and
the voter is deemed to be an inactive registered voter, the act
of placing his or her signature on a petition shall constitute
the immediate re-activation of the voter’s registration at
the address indicated by the voter on the petition, and the
voter’s signature shall be counted on that petition.
“Section 13.  On the date a voter registration form is
signed by an otherwise eligible person, the person’s signa-
ture shall be deemed active and registered for the purpose
of signing any petition.
“* * * * *
“Section 16.  This 2014 Act supersedes any Oregon law
which is inconsistent with this Act.”
The Attorney General certified the following ballot
title for the proposed measure:
“BALLOT TITLE:  Changes, repeals laws governing
petition signatures, ballot titles, qualified voters; authorizes
lawsuits challenging disqualified signatures
“Result of ‘Yes’ Vote:  ‘Yes’ vote changes, repeals laws
governing petition signature qualification, verification,
counting; public notice required if voter’s signature rejected;
requires printing entire text of short measures.
“Result of ‘No’ Vote:  ‘No’ vote retains existing laws
allowing disqualification of signatures unlawfully obtained,
not matching voter records, signed by inactive/unregistered
voter; all measures receive ballot titles.
“Summary:  Currently, only ‘qualified voters’ may sign
initiative/referendum, candidate nomination, political party
322 Buehler v. Rosenblum
formation, recall petitions; ‘qualified voters’ are electors
with active registration at time of signing. Constitution, stat-
utes, rules regulate signature collection, verification, and
counting to prevent fraud, forgery, improper signature
gathering. Measure prohibits laws disqualifying voter’s
valid signature even if gatherer/circulator obtains it ille-
gally; reactivates ‘inactive’ voter registration for all pur-
poses automatically upon signing petition, counts signa-
ture. Requires public electronic posting of voter name if
signature disqualified; signature counts if voter validates.
Authorizes lawsuit to contest signature disqualification,
attorney fees to voter/chief petitioner. Eliminates ballot title
for initiatives of 100 words or less, full text must be printed
on petition, ballot. Other provisions.”
Petitioners first assert that the caption and the “yes”
vote result statement do not substantially comply with ORS
250.035(2) because they state that the subject matter and
effect of the measure would be to “repeal” laws governing the
specified matters, whereas, in petitioners’ view, the measure
does not involve that subject matter nor would it have that
effect. Petitioners acknowledge that Initiative Petition 11
would effectively change several existing laws and that it
would “modify the enforcement of laws to allow an innocent
petition signer, who is a voter, to have his or her signature
counted.” However, petitioners assert, “the enforcement of
restrictions, as to actions by others, can continue: imposition of
fines, criminal penalties, etc.” Relatedly, amicus Meek asserts
that, even if the proposed ballot measure would repeal some
existing laws governing those matters, the caption and the
“yes” vote result statement incorrectly imply that the measure
would repeal all such laws. According to Meek, without a
limiting word such as “some” in the phrase “repeals laws,” the
caption and “yes” vote result statement are misleading and
vague.
The Attorney General replies that, even though the
measure would not expressly repeal inconsistent provisions
of existing laws, it would do so by implication. Thus, the
Attorney General reasons, the ballot title substantially com-
plies with ORS 250.035(2)(a).
We review challenges to ballot measure captions for
substantial compliance with ORS 250.035(2)(a), which requires
Cite as 354 Or 318 (2013) 323
a “caption of not more than 15 words that reasonably iden-
tifies the subject matter of the state measure.” The “subject
matter” of a measure refers to “the ‘actual major effect’ of a
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). To identify
the “actual major effect” of a measure, this court looks to
“the text of the proposed measure to determine the changes
that the proposed measure would enact in the context of
existing law” and then evaluates whether the caption rea-
sonably identifies those effects. Rasmussen v. Kroger, 350 Or
281, 285, 253 P3d 1031 (2011). In fulfilling the statutory
requirements, the caption must identify the measure’s sub-
ject matter in terms that will not “confuse or mislead poten-
tial petition signers and voters,” Mabon v. Myers, 332 Or 633,
637, 33 P3d 988 (2001), and it cannot overstate or understate
the scope of the legal changes that the measure would enact.
Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004).
Similarly, we review challenges to the “yes” vote
result statement for substantial compliance with ORS
250.035(2)(b), which requires a “simple and understandable
statement of not more than 25 words that describes the
result if the state measure is approved.” As this court has
stated, the “yes” vote result statement must set out “the most
significant and immediate consequences” of adoption of the
proposed measure. Pelikan/Tauman v. Myers, 342 Or 383,
390, 153 P3d 117 (2007).
To evaluate the major effects and significant conse-
quences of Initiative Petition 11, it is helpful to review the
existing laws governing signature gathering, voter regis-
tration, and ballot titles for initiative petitions, and then
compare them with the provisions of Initiative Petition 11.
Currently, petition signature sheets that do not meet
statutory and regulatory requirements are not included in
determining whether a petition or prospective petition con-
tains the required number of signatures of electors. For
example, ORS 250.042 provides that, if a signature sheet
is not certified by the petition circulator as required by law,
the signatures contained on the signature sheet “may not
be counted for purposes of determining whether the petition
324 Buehler v. Rosenblum
contains the required number of signatures of electors.” In
addition, ORS 250.048(7) provides that the Secretary of
State may not include any signatures in the count if a paid
circulator was not registered. Regulations promulgated to
implement those statutes provide that signature sheets of
paid circulators who are unable to show proof of registration
will not be accepted, OAR 164-014-0280(5)(c), and signatures
may not be counted if they do not match voter registration
records, OAR 165-014-0030(5) - (16).
Under sections 3 and 4 of Initiative Petition 11, how-
ever, otherwise valid voter signatures may not be disqualified
because of signature gathering irregularities such as those
described in ORS 250.042 and ORS 250.048. As noted, sec-
tions 3 and 4 of Initiative Petition 11 provide:
“Section 3.  Laws and regulations may be enacted and
enforced to prevent forgery or fraud *  *. However, such
*
laws and regulations shall not be enforced in any manner
so as to prevent the petition signature of a registered voter,
who has committed no violation of law, from being included
in the determination whether the petition contains the
required number of signatures of voters.
“Section 4.  Notwithstanding ORS 250.042, the Secre-
tary of State and elections officers may not disqualify a
signature on a petition based on the failure of a circulator
to comply with a law governing the circulation of petitions
unless the secretary or elections officer determines that the
circulator’s failure was the result of a knowing and willful
violation of law.”
Existing statutes also establish procedures govern-
ing initial voter registration and reactivation of registration.
For example, ORS 247.012 provides that a voter registration
is “active” on the date that a registration card is received
and accepted under that statute. Section 13 of Initiative
Petition 11 would change that existing law by providing
that a person’s signature is deemed “active” for purposes
of signing a petition on the date that the voter registration
form is signed. As another example, under existing law, an
elector for whom a county clerk has evidence of a change
in required voter registration information and who has not
voted or updated that information within five years may
be deemed inactive, and the elector’s registration may be
Cite as 354 Or 318 (2013) 325
cancelled, unless the elector updates the registration. See
ORS 247.013; ORS 247.563 (so providing). By contrast, sec-
tion 12 of Initiative Petition 11 provides that an inactive
registered voter’s signature on a petition “immediately”
re-activates the voter’s registration and that “the voter’s sig-
nature shall be counted on that petition.”
Finally, under current law, the Attorney General is
required to provide a ballot title for all state measures received
from the Secretary of State. ORS 250.065(3). However,
section 11 of Initiative Petition 11 provides that “[a]ny ballot
measure by citizen initiative that contains 100 words or fewer
of text * * * shall have the full text of the measure presented
on the ballot * * * instead of any ballot title.”
As discussed above, the Attorney General’s ballot
title characterizes the changes that Initiative Petition 11
makes to existing law as the “repeal” of those laws. The
Attorney General argues that that word fairly describes the
“actual major effect” of the measure, insofar as Initiative
Petition 11 at least impliedly repeals many existing laws. For
that reason, the Attorney General maintains, the caption
and the “yes” vote result statement substantially comply
with ORS 250.035(2)(a) and (b).
At the outset, we observe that nothing in Initiative
Petition 11 expressly repeals any existing law. However, when
a subsequent statute is “repugnant to or in conflict with a
prior statute *  * the prior statute is impliedly repealed.”
*
State v. Shumway, 291 Or 153, 160, 630 P2d 796 (1981). In
such a case, “the earlier must yield to the later by implied
repeal.” Anthony v. Veatch, 189 Or 462, 481, 220 P2d 493
(1950). This court will not presume an intent to repeal.
Shumway, 291 Or at 162. Rather, the court infers repeal of
a prior statute only when there is “plain, unavoidable, and
irreconcilable” conflict between the new and the old statute.
Id. (quoting Messick v. Duby, 86 Or 366, 371, 168 P. 628
(1917)). That is, “[t]he repeal by implication of one act by a
later act is not effected by mere conflicts or inconsistencies
between them, but only where the carrying out of the later
act prevents the enforcement of any part of the former.” State
v. Buck, 200 Or 87, 148-49, 262 P2d 495 (1953) (internal
citation omitted).
326 Buehler v. Rosenblum
On the other hand, if the effect of the subsequent
act is not to entirely abrogate an earlier statute but, rather,
to make it partially inoperative in certain situations, then
this court has been inclined to view the subsequent statute
as impliedly amending, rather than repealing, the earlier
statute. Lilly v. Gladden, 220 Or 84, 94, 348 P2d 1 (1959) (so
holding). In Balzer Mch v. Klineline Sand & Grav., 271 Or
596, 601, 533 P2d 321 (1975), for example, the court found
an implied amendment where the statute at issue partially
conflicted with an earlier statute on the same subject. The
court held that the “two statutes are inconsistent and,
therefore, the later will prevail.” Id. See also State v. Scott,
237 Or 390, 397, 390 P2d 328 (1964) (concluding that, to
the extent of inconsistency, subsequently enacted statute
impliedly amended prior statute).
In this case, none of the provisions of Initiative
Petition 11 entirely abrogates an existing statute. Section 3,
for example, provides that existing “laws and regulations
shall not be enforced in any manner so as to prevent the
petition signature of a registered voter, who has committed
no violation of law, from being included in the determination
whether the petition contains the required number of sig-
natures of voters.” That provision does not repeal an exist-
ing law; rather, it limits the enforcement of certain statutes
described above in some situations. Similarly, section 4,
which provides that, “nothwithstanding ORS 250.042,” sig-
nature gathering irregularities do not result in disquali-
fication of signatures on a petition unless the irregularity
“was the result of a knowing and willful violation of law,”
does not completely abrogate ORS 250.042, which disquali-
fies all signatures on a petition sheet if the signature
gatherer does not certify them in compliance withapplicable
laws. Finally, sections 12 and 13 do not completely supersede
the statutes that establish procedures for initial voter regis-
tration and reactivation of registration; rather, the measure
would create exceptions to those provisions when an inactive
registered voter or a person whose registration application
has not yet been accepted by the appropriate state official
signs a qualifying petition.
Cite as 354 Or 318 (2013) 327
In addition, section 11, which requires the full text
(not a ballot title) of a proposed ballot measure containing
“100 words or fewer of text” to be “presented on the ballot,”
does not completely supersede ORS 250.065(3). The latter
statute requires the Attorney General to provide a ballot
title for all proposed measures; should Initiative Petition 11
pass, the statute would remain in effect with respect to mea-
sures containing more than 100 words of text.
It follows that the Attorney General’s use of the word
“repeals” in the caption and “yes” vote result statement of the
ballot title is legally incorrect and potentially misleading.
Because the caption and “yes” vote result statement do not
substantially comply with ORS 250.035(2)(a) and (b) in the
respect that we have identified, we must refer the ballot title
to the attorney general for modification.1
Petitioners also challenge the summary of the ballot
title of Initiative Petition 11 under ORS 250.035(2)(d). That
statute requires “[a] concise and impartial statement of not
more than 125 words summarizing the state measure and
its major effect.” The function of the summary is “to provide
voters with enough information to understand what will
happen if the measure is approved.” Caruthers v. Kroger,
347 Or 660, 670, 227 P3d 723 (2010). That information may
include a description of the effect of the measure at issue on
other laws, so long as the description is accurate. Berman v.
Kroger, 347 Or 509, 514, 225 P3d 32 (2009).
Petitioners object to the following sentence in the
Attorney General’s summary for Initiative Petition 11:
“Measure prohibits laws disqualifying voter’s valid signa-
ture even if gatherer/circulator obtains it illegally[.]”
They argue that Initiative Petition 11 would not “prohibit”
laws. Rather, section 3 of Initiative Petition 11 provides that
laws dealing with forgery, fraud, and orderly process in the
circulation of a petition “shall not be enforced in any manner
1
Because we have concluded that Initiative Petition 11 does not “repeal”
existing law, we need not address amicus Meek’s argument that the caption and
the “yes” vote result statement are misleading and vague because of the absence of
a limiting word such as “some” in the phrase “repeals laws.”
328 Buehler v. Rosenblum
so as to prevent the signature of a registered voter, who has
committed no violation of law, from being included in the
determination whether the petition contains the required
number of signatures of voters.” That is, although the enforce-
ment of such laws would be restricted by the measure, such
laws would not be prohibited. We agree. In that respect, the
summary does not accurately summarize a major effect of the
measure. It follows that the summary does not substantially
comply with ORS 250.035(2)(d).2
The ballot title is referred to the Attorney General
for modification.
2
We reject without discussion the other challenges to the ballot title that peti-
tioner and amicus Meek have made.