Conroy v. Rosenblum , 359 Or. 601 ( 2016 )

No. 33 May 26, 2016 601
IN THE SUPREME COURT OF THE
STATE OF OREGON
Heather CONROY;
Margaret (“Maggie”) Neel, an individual elector;
Mike Forest, an individual elector;
Hanna Vaandering; Trent Lutz;
and Richard Schwarz,
Petitioners,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S063735)
En Banc
On petitioners’ objections to modified ballot title filed
April 7, 2016; considered and under advisement on April 26,
2016.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter,
P.C., Portland, filed the objections for petitioner Heather
Conroy.
Nathan R. Rietmann, Salem, filed the objections for peti-
tioners Margaret (“Maggie”) Neel and Mike Forest.
Aruna A. Masih, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the response to the objections of petition-
ers Margaret (“Maggie”) Neel and Mike Forest for petition-
ers Hanna Vaandering, Trent Lutz, and Richard Schwarz.
No appearance on behalf of respondent.
WALTERS, J.
The modified ballot title is referred to the Attorney
General for additional modification.
Case Summary: The Attorney General filed a modified ballot title in response
to the Supreme Court’s opinion in Conroy v. Rosenblum, 358 Or 807, __ P3d __
(2016). Two sets of petitioners filed objections to the modified ballot title. Held:
(1) The phrase “limits public employee union members’ obligations” in the mod-
ified caption is vague and potentially misleading in three respects; (2) the mod-
ified caption’s use of the word “might” does not adequately convey the potential
602 Conroy v. Rosenblum
“free-rider” effect the Court previously identified; (3) inconsisent use of the term
“bargaining” in the modified caption, “representation” in the “yes” result state-
ment, and “representation/bargaining” elsewhere in the modified ballot title
may cause voter confusion; and (4) the Attorney General must make conforming
changes to the modified “yes” result statement and modified summary.
The modified ballot title is referred to the Attorney General for additional
modification.
Cite as 359 Or 601 (2016) 603
WALTERS, J.
This ballot title review proceeding is before us for a
second time. Previously, we referred the Attorney General’s
certified ballot for Initiative Petition 62 (2016) (IP 62) for
modification. Conroy v. Rosenblum, 358 Or 807, __ P3d __
(2016). The Attorney General has prepared and filed a mod-
ified ballot title, which two sets of petitioners now challenge.
See ORS 250.085(10) (prescribing procedure for addressing
objections to a modified ballot title). For the reasons that
follow, we find certain of the objections to be well taken, and
we refer the modified ballot title to the Attorney General for
additional modification.
IP 62 applies to public employees (employees) and
public employee labor organizations (unions). If adopted
by the voters, IP 62 would amend several provisions of
the Oregon Public Employee Collective Bargaining Act. In
our earlier opinion, we described the proposed measure as
follows:
“Currently, unions set their own membership terms and
dues structures. There are constitutional and statutory
limits on amounts that nonmembers may be required to
pay for union activities, but there are no such limits on the
dues that members may be required to pay. IP 62 would
flip that arrangement, and, instead of imposing limits on
payments by nonmembers, would impose limits on dues
paid by union members. IP 62 § 3(2)(a) and (b); § 5(1).
Instead of permitting unions to charge dues to defray any
and all union expenses, the measure would limit dues to
an amount necessary and reasonable to defray the costs
of bargaining on matters concerning “employment rela-
tions.” IP 62 § 3(2)(b). The measure would permit a union
to collect additional revenue to defray other expenses only
by obtaining an employee’s affirmative written consent to
make such payments on a form prescribed by statute. IP 62
§ 6(1)(c); § 6(3).”
Conroy, 358 Or at 812-13. For convenience, we set out the
Attorney General’s modified ballot title for the proposed
measure:
“Limits public employee union members’
obligations; employees might benefit without
sharing bargaining costs. Authorizes lawsuits.
604 Conroy v. Rosenblum
“Result of ‘Yes’ Vote:  ‘Yes’ vote changes pub-
lic employee union members’ obligations, limiting dues
required of members; might allow employees to benefit from
representation without sharing costs. Authorizes lawsuits.
“Result of ‘No’ Vote:  ‘No’ vote retains public employee
unions’ authority to set membership obligations, require
union-represented public employees to share representation/
bargaining costs union legally must provide.
“Summary:  Current law allows public employees to
bargain collectively through a union. Union may require
membership dues to fund expenditures related to all
representation/bargaining and other union activities.
Collective bargaining agreements can require represented
nonmembers to pay fees, but not for union activities unre-
lated to representation/bargaining. Measure prohibits
requiring any dues/fees that fund activities not ‘reason-
ably and necessarily’ incurred for union representation/
bargaining concerning ‘employment relations’ (defined).
‘Employment relations’ includes all subjects on which
unions, employers must bargain, but not all subjects on
which they may bargain; thus, employees might benefit
from representation/bargaining without sharing costs.
Union may separately collect itemized payments for other
representation/bargaining activities, and other union activ-
ities from employee who authorizes additional amounts.
Authorizes enforcement lawsuits. Other provisions.”
We review a modified ballot title to determine
whether it substantially complies with the statutory require-
ments of ORS 250.035. See ORS 250.085(9) (stating stan-
dard of review). See also Nesbitt v. Myers, 335 Or 424, 427,
71 P3d 530 (2003) (“Our review of a modified ballot title has
the same scope as our review of a certified ballot title[.]”).
Two sets of petitioners, petitioners Neel and Forest,
and petitioner Conroy, challenge the modified ballot title.1
As an initial matter, petitioners Neel and Forest generally
object to the modified ballot title as a whole, maintaining
1
Petitioners Vaandering, Lutz, and Schwarz did not file a timely objection to
the modified ballot title. Instead, they filed a response to the objection of petition-
ers Neel and Forest. Much of that response overlaps with the objections made by
petitioner Conroy and does not require separate discussion. Petitioners’ further
response to the objections of petitioners Neel and Forest is without merit, and we
do not discuss it further.
Cite as 359 Or 601 (2016) 605
that the ballot title review process has caused important,
previously identified effects or results to become lost. They
contend that the modified ballot title no longer reasonably
identifies the actual major effect of the measure, which
they identify as (1) limiting the dues that public employee
unions may charge as a condition of membership and;
(2) requiring unions to obtain member authorization before
collecting money used for certain purposes. Petitioners
Neel and Forest also object more specifically to the mod-
ified caption and argue that the problems that they iden-
tify with respect to the caption also inhere in the modified
“yes” and “no” result statements and modified summary.
Petitioner Conroy also objects to all parts of the modified
ballot title, except the modified “no” result statement. We
begin our analysis with the parties’ objections to the mod-
ified caption.
MODIFIED CAPTION
Petitioners Neel and Forest set out two main objec-
tions to the modified caption. First, they claim that the
phrase “limits public employee union members’ obligations”
is vague and overbroad and is likely to mislead and confuse
voters. They note that the reference to “obligations” fails to
give readers any sense of what obligations would be limited
or to whom the obligations may be owed (e.g., from union
members to public employer, other union members, the pub-
lic, or themselves). They also stress that the caption does not
inform voters that, under IP 62, as this court described it,
“a union would no longer have the authority to set its own
membership requirements and to defray its costs through its
dues structure.” Conroy, 358 Or at 813. Instead, they assert,
the caption focuses on “limits” on “union members,” which
they suggest is misleading because IP 62 explicitly grants
rights to employees; the limits that it imposes are on unions,
not union members.
We agree that the phrase “limits public employee
union members’ obligations” is vague and potentially mis-
leading. See Girod v. Kroger, 351 Or 389, 397, 268 P3d 562
(2011), quoting Hunnicutt/Stacey v. Myers, 343 Or 387, 391,
171 P3d 349 (2007) (caption may fail to comply with statu-
tory requirements of ORS 250.035(2)(a) if it is “too vague
606 Conroy v. Rosenblum
and gives voters no clear picture of what is at stake.”). As
we stated previously, under IP 62, “a union would no longer
have the authority to set its own membership requirements
and to defray its costs through its dues structure.” Conroy,
358 Or at 813. The modified caption does not explain those
changes. Instead, it refers to “obligations” in conjunction
with “public employee union members.” The modified caption
is vague in that it does not describe the obligations to which
it refers and to whom they are owed, but it also is poten-
tially misleading. IP 62 does not expressly impose any obli-
gation on union members. Instead, IP 62 purports to offer
union members certain “rights.” IP 62 § 3(2). IP 62 does,
however, expressly impose obligations—and restrictions—
on unions themselves. For example, IP 62 requires unions
to offer a membership structure that protects the rights of
public employees (defined elsewhere in the measure), as a
condition of certification of the union as an exclusive repre-
sentative. IP 62 §§ 4(1), 5. For the reasons identified by peti-
tioners Neel and Forest, the Attorney General again must
modify the caption to correctly capture the changes that
IP 62 would make.
Next, petitioners Neel and Forest object to the phrase
“employees might benefit without sharing bargaining costs.”
They contend that, as used to describe IP 62, that phrase is
“underinclusive, inaccurate, misleading, politically loaded,”
and fails to reasonably identify the actual major effect of
the proposed initiative measure. In making that argument,
petitioners appear to acknowledge, as we explained previ-
ously, that a union could voluntarily engage in permissive
bargaining and obtain a contractual term applicable to
everyone in the bargaining unit, but not be able to recover
the expenses involved in doing so from those paying dues
only for mandatory bargaining. However, they argue, such
a contractual term may not be viewed as a “benefit” by all
bargaining unit members. Thus, petitioners assert, there is
only a possibility that members may obtain benefits with-
out paying for the costs of obtaining those benefits. Instead
of describing that possibility, petitioners argue, the caption
should describe the certainty that, under IP 62, union mem-
bers will not be required to pay for union activities that they
may find objectionable.
Cite as 359 Or 601 (2016) 607
Petitioner Conroy also objects to the phrase “employ-
ees might benefit without sharing bargaining costs,” but for
a different reason. She contends that the use of “might” is
inaccurate and misleading because it improperly conveys
to voters that the “free-rider” effect is speculative. That
is wrong, she contends, because the potential for “free-
riders” will exist if the initiative passes. According to peti-
tioner, this court used the term “potential free-rider effect”
because the extent to which a free-rider effect will arise in
any specific scenario cannot be determined at this juncture.
Additionally, petitioner claims that use of the word “might”
is flawed because it inaccurately implies that some (non-
union) bargaining unit employees would receive different
benefits than other (union) bargaining unit employees. In
fact, petitioner explains, any benefit that a union obtains
must be made available to all employees in the bargaining
unit.
The argument of petitioners Neel and Forest about
whether and to what extent “free-riders” will exist misses
the larger point.2 It may not be a certainty that there will be
“free-riders,” but it is a certainty that IP 62 will permit “free-
riders.” For that reason, we agree with petitioner Conroy
that use of the word “might” in the caption is inaccurate.
It does not adequately convey to voters the potential “free-
rider” effect that we previously identified. The modified cap-
tion must be further modified to correct that deficiency.
We turn next to petitioner Conroy’s second challenge
to the modified caption. Petitioner observes that it refers
only to “bargaining costs,” and not also to the representa-
tion services that a union is required to provide to non-dues-
paying employees, and contends that the modified caption
therefore is underinclusive. She asserts that because the ini-
tiative will allow “free-riders” to avoid paying both bargain-
ing and representation costs, the caption must be further
modified to correct that omission. In that regard, she also
notes the lack of symmetry between the modified caption,
on the one hand, and the modified “no” result statement
2
Petitioners Neel and Forest also appear to be rearguing a point that the
court already has decided against them. See Conroy, 358 at 816 (“[T]he ballot title
for IP 62 must inform voters that, under that measure, employees need not share
in a union’s total representation costs.”).
608 Conroy v. Rosenblum
and modified summary (which refer to “representation/
bargaining” activities and costs), on the other hand.
We agree that the inconsistent use of the terms
“bargaining” and “representation/bargaining” in the mod-
ified ballot title may cause voter confusion. Given that
the Attorney General is required to make other changes
to the ballot title, we suggest that she use the same
term—representation/bargaining—throughout.
MODIFIED RESULT STATEMENTS
As noted, both sets of petitioners object to the mod-
ified result statements. They argue that the same deficien-
cies evident in the caption reappear there. With respect
to the “yes” result statement, we agree.3 The reference to
“public employee union members’ obligations” in the “yes”
result statement is similarly vague and misleading, and the
phrase “might allow employees to benefit from represen-
tation without sharing costs” does not sufficiently identify
the “free-rider” problem that we have described. Petitioner
Conroy also notes that the “yes” result statement pres-
ents the converse of the problem that she identified in the
caption—it states that employees might benefit from “rep-
resentation” without sharing costs, but ignores the benefits
and costs of bargaining. We again suggest that the Attorney
General use the same term—representation/bargaining—
that she uses in the modified “no” result statement and mod-
ified summary.
MODIFIED SUMMARY
Finally, petitioner Conroy objects to the modified
summary because it also states, in her view inaccurately, that
“employees might benefit from representation/bargaining
without sharing costs.” (Emphasis added). For the same rea-
sons that we identified with respect to the modified caption,
the modified summary also must make clear that IP 62 will
permit employees to benefit without sharing costs.4
3
We have considered the additional objections of petitioners Neel and Forest
to the modified “yes” result and “no” result statements and conclude that they are
not well taken.
4
Because we already have rejected the objection of petitioners Neel and
Forest to the part of the modified caption that attempts to describe the “free-rider”
Cite as 359 Or 601 (2016) 609
SUGGESTED BALLOT TITLE
We understand how difficult it is to fit complex con-
cepts into few words and maintain accuracy. With the hope
of helping and not hindering, we offer the following as an
example of a ballot title that the Attorney General may wish
to consider:
Limits public union membership terms, dues/fees.
Permits employees to benefit without sharing costs.
Authorizes lawsuits.
Result of “Yes” Vote:  “Yes” vote limits public union
membership terms and dues/fees required of members; per-
mits employees to benefit from representation/bargaining
without sharing costs. Authorizes lawsuits.
Result of “No” Vote:  “No”’ vote retains public
employee unions’ authority to set membership obliga-
tions, require union-represented public employees to share
representation/bargaining costs union legally must provide.
Summary:  Current law allows public employees to
bargain collectively through a union. Union may require
membership dues to fund expenditures related to all
representation/bargaining and other union activities.
Collective bargaining agreements can require represented
nonmembers to pay fees, but not for union activities unre-
lated to representation/bargaining. Measure prohibits
requiring any dues/fees that fund activities not ‘reason-
ably and necessarily’ incurred for union representation/
bargaining concerning ‘employment relations’ (defined).
‘Employment relations’ includes all subjects on which
unions, employers must bargain, but not all subjects on
which they may bargain; thus, measure permits employ-
ees to benefit from representation/bargaining without
sharing costs. Union may separately collect itemized pay-
ments for other representation/bargaining activities, and
other union activities from employee who authorizes addi-
tional amounts. Authorizes enforcement lawsuits. Other
provisions.
The modified ballot title is referred to the Attorney
General for additional modification.
problem, we similarly reject their objection to the modified summary on the same
basis. We also note that the additional objections of petitioners Neel and Forest to
the modified summary are not well taken.