Swanson v. Rosenblum ( 2017 )

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.