Ady v. Rosenblum ( 2023 )

702 December 7, 2023 No. 36
IN THE SUPREME COURT OF THE
STATE OF OREGON
Hugh ADY,
Petitioner on Review,
and
Reed SCOTT-SCHWALBACH,
Petitioner on Review,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent on Review.
(SC S070443 (Control); SC S070446)
On petitions to review ballot title filed September 13,
2023; considered and under advisement on November 7,
2023.
Eric C. Winters, Wilsonville, filed the petition and reply
memorandum for petitioner Hugh Ady.
Margaret S. Olney, Bennett Hartman, LLP, Portland,
filed the petition and reply memorandum for petitioner Reed
Scott-Schwalbach.
Carson L. Whitehead, 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.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong, and James, Justices.*
GARRETT, J.
The ballot title is referred to the Attorney General for
modification.
______________
* Masih, J., did not participate in the consideration or decision of this case.
Cite as 371 Or 702 (2023) 703
704 Ady v. Rosenblum
GARRETT, J.
Chief petitioner Ady and petitioner Scott-
Schwalbach separately challenge the Attorney General’s
certified ballot title for Initiative Petition 30 (2024) (IP 30).
We review the ballot title for substantial compliance with
ORS 250.035(2). See ORS 250.085(5) (stating standard of
review). For the reasons explained below, we reject all but
two of the arguments raised by petitioners. Because we
conclude that the ballot title for IP 30 requires modifica-
tion in two respects, we refer it to the Attorney General for
modification.
I. BACKGROUND
If adopted, IP 30 would establish a program to pro-
vide state funding to certain families who incur “qualified
expenses” for educating their children outside of the public
school system. IP 30 § 2(1); id. § 2(3)(b). IP 30 defines “quali-
fied expenses” to include tuition and fees at a “participating
school,” id. § 1(5), a defined term that refers to a “provider of
educational services as described in ORS 339.030(1)(a), (d),
(e)[,] or (h),” id. § 1(3). Those statutory references describe
children who are exempt from compulsory public school
attendance because they attend “a private or parochial
school” (ORS 339.030(1)(a)), have a “private teacher” (ORS
339.030(1)(d)), or are home-schooled (ORS 339.030(1)(e)).
In other words, one effect of IP 30 would be to allow cer-
tain students to receive state funding to attend parochial
schools.
All households having an adjusted gross income
of $125,000 or less would be eligible to receive those funds.
IP 30 § 10.1 The funding would be provided through a new
“Education Savings Account Program” administered by
the state. IP 30 §§ 2(2), 2(5), 3, 4.2 The individual accounts
within that program would be funded through transfers
1
For the 2025-26 school year only, the program would be limited to low-
income households, defined as 200 percent of the federal poverty level. IP 30
§§ 2(2)(b), 1(1); see id. § 7 (program as a whole effective for 2025-26 school year).
That would change the following school year. Id. § 10 (amending section 2 to add
all households up to $125,000); id. § 11 (section 10 amendments effective begin-
ning with 2026-27 school year).
2
The Educational Savings Account itself is singular, but each qualified stu-
dent has an individual account within it. See IP 30 §§ 3(1), 4, 5.
Cite as 371 Or 702 (2023) 705
by the Department of Education of monies calculated as a
percentage of the “statewide average distribution,” id. § 2(5)
(c)(A), which IP 30 defines as “an amount determined by
the Department of Education each school year to equal the
average per student distribution of the State School Fund as
general purpose grants for all school districts in this state,
as adjusted by any weights described in ORS 327.013(1)(c)
(A)(i) and (ii),” id. § 1(7).
In addition to creating the Education Savings
Account Program, IP 30 would change state law regarding
the process for inter-district transfers, id. § 18, and it would
increase the percentage of students in each school district
who can be enrolled in virtual public charter schools with-
out district approval from three percent to six percent, id.
§ 21.
A state measure’s ballot title has three statutory
components: (1) a caption of not more than 15 words that
reasonably identifies the measure’s subject matter; (2) sim-
ple and understandable statements of 25 words or less that
describe the result of a ‘yes’ vote and a ‘no’ vote; and (3) a
concise and impartial statement of no more than 125 words
that summarizes the measure. ORS 250.035(2). For IP 30,
the Attorney General certified the following ballot title:
“Provides public funds for homeschooling, private/
religious school tuition, expenses; income eligibility.
Establishes cross-district enrollment”
“Result of ‘Yes’ Vote: ‘Yes’ vote provides public funds
for homeschooling, religious or private tuition, qualified
expenses. Income eligibility. Establishes cross-district
enrollment, with limitations. Allows additional virtual
charter programs.
“Result of ‘No’ Vote: ‘No’ vote maintains current sys-
tem of educational funding; no public funds for homeschool,
private, or religious school tuition; some publicly funded
programming/services available.
“Summary: Currently, Oregon resident students are
entitled to free, appropriate public education; no public
funds for homeschool, private, or religious school tuition;
some publicly funded programming/services available.
Provides public funds for qualified students through
706 Ady v. Rosenblum
accounts maintained by State Treasury. Annual amount per
student equals 80% of statewide average amount provided
to school districts for each child enrolled in public schools.
Funds directed from monies otherwise appropriated to
State Department of Education for public schools. Initially
available to low-income (defined), then to resident students
with household adjusted gross income under $125,000
(adjusted annually). Accounts used for homeschooling, reli-
gious/private school tuition, qualified expenses. Recipients
need not change creed, practices, admissions, curriculum.
Establishes cross-district enrollment. Allows additional
virtual charter schools. Constitutionality of religious school
funding uncertain.”
Chief petitioner Ady challenges all parts of the bal-
lot title. Petitioner Scott-Schwalbach challenges the vote
result statements and the summary. For the reasons dis-
cussed below, we conclude that the Attorney General should
modify the “yes” result statement and the summary in two
respects, but we reject the other challenges.
II. DISCUSSION
A. Caption
The caption must “reasonably identif[y] the subject
matter” of the proposed measure in 15 words or less. ORS
250.035(2)(a). We have explained that the subject matter of
a proposed measure is its “actual major effect.” Whitsett v.
Kroger, 348 Or 243, 247, 230 P3d 545 (2010) (internal quo-
tation marks omitted). If the measure has more than one
major effect, then the caption must identify “all such [major]
effects (to the limit of the available words).” Id. We determine
the subject matter by examining the words of the proposed
measure, as well as “the changes, if any, that the proposed
measure would enact in the context of existing law.” Kain/
Waller v. Myers, 337 Or 36, 41, 93 P3d 62 (2004).
Chief petitioner Ady contends that the caption fails
to meet those standards in several ways. For the conve-
nience of the reader, we set out the certified caption again:
“Provides public funds for homeschooling, private/
religious school tuition, expenses; income eligibility.
Establishes cross-district enrollment”
Cite as 371 Or 702 (2023) 707
Chief petitioner Ady’s primary objections turn on
the use of the words “homeschooling, private/religious school
tuition, expenses.” As an initial matter, he maintains that
the reference to “religious school[s]” is misleading regarding
the subject matter: the term “religious school” is not used in
either IP 30 or the statutes it references, and he contends
that the term is ambiguous in a way that “parochial school”
is not.
The Attorney General responds that “religious
school” is a synonym for “parochial schools” that is more
easily understood by voters. We agree with the Attorney
General that the caption is sufficient despite using the term
“religious school.” It is synonymous with “parochial school,”
and we do not think the term is ambiguous or misleading.
See Webster’s Third New Int’l Dictionary 1643 (unabridged
ed 2002) (defining “parochial school” as “a school maintained
by a religious body usu. for elementary instruction”).
Chief petitioner Ady also contends that the caption
should not refer to the funding of “religious” schools as a
major effect and that, by doing so, the caption omits refer-
ence to another major effect: that the number of students
who could opt into attending a virtual charter school is
increased. The Attorney General contends that providing
public funds to those entities would be a significant change
to existing law. As we understand Ady’s response, Ady does
not dispute that providing public funds to religious schools
would be a major effect; Ady’s contention, rather, is that this
cannot be said to be a major effect of the measure because
the constitutional status of such funding is uncertain. That
is: On the one hand, the Oregon Constitution restricts the
use of public funds to finance religious education. Or Const,
Art I, § 5 (prohibiting use of state funds “for the benefit of
any religeous [sic], or theological institution”); see Dickman
et al v. School Dist. 62C et al, 232 Or 238, 366 P2d 533 (1961),
cert den, 371 US 823 (1962) (concluding that Article I, sec-
tion 5, had been violated by a school district providing text-
books to pupils of parochial schools without charge). On the
other hand, as both Ady and the Attorney General observe,
the First Amendment to the United States Constitution
may pose a barrier to applying that provision of the Oregon
708 Ady v. Rosenblum
Constitution in a manner that excludes religious schools
from distributions available to nonreligious private schools.
See Espinoza v. Mont. Dep’t of Revenue, 591 US ___, 140 S Ct
2246, 2261, 207 L Ed 2d 679 (2020) (“A State need not sub-
sidize private education. But once a State decides to do so, it
cannot disqualify some private schools solely because they
are religious.”).
To be sure, the provision in IP 30 that would provide
public funds for religious schools raises questions under the
state and federal constitutions. Whether and to what extent
that provision may withstand constitutional scrutiny does
not bear, however, on whether it is a major effect of the mea-
sure that must be reflected in the caption. The measure, by
its terms, purports to provide such funding, and we agree
with the Attorney General that that is a major effect of the
measure.3
Chief petitioner Ady also contends that the caption
fails to adequately describe how funds from IP 30’s Education
Savings Account Program would be limited to “income-eli-
gible students.” We disagree; the caption already refers to
“income eligibility” after mentioning “tuition, expenses.”
Chief petitioner Ady lastly contends that the cap-
tion should reflect that the number of students who could
opt into attending a virtual charter school is increased. The
Attorney General contends that the proposed measure’s
expansion of virtual charter school enrollment is less sig-
nificant than the other changes that have been identified in
the caption. We agree with the Attorney General. IP 30 is 36
pages of single-spaced text. Given the word constraints for
the caption, her decision to focus on other major effects did
not render the ballot title noncompliant. See Buel/Markley
v. Rosenblum, 366 Or 570, 575, 468 P3d 459 (2020) (substan-
tial compliance is a “flexible” standard that “allows room
for the exercise of discretion by the ballot title drafter”);
Oregon Taxpayers Union v. Paulus, 296 Or 476, 480-81, 676
P2d 305 (1984) (when petitioner contended ballot title failed
3
Chief petitioner Ady makes similar arguments regarding references to
religious schools in the “yes” result statement, the “no” result statement, and
the summary. For the reasons set out here, we also reject those additional
contentions.
Cite as 371 Or 702 (2023) 709
to include major provisions and it was not possible to iden-
tify “all the component parts of the initiative measure in the
limited format mandated by statute,” then “part of our task
is to determine * * * which changes are more important than
others,” while deferring to the judgment of the Attorney
General “where reasonable minds can differ”); Priestley v.
Paulus, 287 Or 141, 145, 597 P2d 829 (1979) (in “complex
measures,” word limits on ballot titles “require * * * that
the Attorney General weigh the relative importance of the
features of the measure in determining what is to be men-
tioned in the title”).
B. “Yes” Result Statement
The “yes” result statement is a “simple and under-
standable statement” of 25 words or less that “describes the
result” if the proposed measure is approved. ORS 250.035(2)
(b).
The “yes” result statement here provides:
“Result of ‘Yes’ Vote: ‘Yes’ vote provides public funds
for homeschooling, religious or private tuition, qualified
expenses. Income eligibility. Establishes cross-district
enrollment, with limitations. Allows additional virtual
charter programs.”
Chief petitioner Ady argues that the “yes” result
statement should expressly state that funds from the
Education Savings Account Program “are parent-directed
for the student’s benefit.” We disagree; the contention is
overly specific and does not seem necessary.
Petitioner Scott-Schwalbach challenges the “yes”
result statement in two respects.
To begin with, we reject his argument that the
“yes” result statement should put “qualified expenses” in
quotation marks and add “(defined).” The adjective “quali-
fied” sufficiently conveys that idea that the qualifications for
the expenses are contained in IP 30. See Webster’s at 1858
(defining “qualified,” in relevant part, as “having complied
with the specific requirements or precedent conditions (as
for an office or employment) : eligible, certified”).
710 Ady v. Rosenblum
Petitioner Scott-Schwalbach is on firmer ground
when he points out that the “yes” result statement incor-
rectly describes a result of IP 30 as “Allows additional
virtual charter programs.” State law does not cap virtual
charter programs; it caps enrollment in those programs. See
ORS 338.125(4)(b)(A) (subject to school district permission,
enrollment is limited to three percent of the students who
reside in the district). IP 30 would amend that statute to
increase the enrollment cap to six percent. IP 30 § 21.
The Attorney General argues that doubling the
number of students could result in additional virtual char-
ter programs to meet the increased need. Regardless, she
asserts that the reference is not likely to confuse voters.
We agree with petitioner Scott-Schwalbach that the
“yes” result statement is inaccurate. Accordingly, we refer
it to the Attorney General for correction. See Buel/Markley,
366 Or at 579-81 (referring “no” result statement and sum-
mary to Attorney General for modification when statement
of current law was no longer accurate); Nearman/Miller v.
Rosenblum, 358 Or 818, 830-31, 371 P3d 1186 (2016) (“yes”
result statement reference to “immigration verification”
was inaccurate and misleading when measure addressed
only documentation that United States citizen must provide
to register to vote); Hunnicutt v. Myers, 333 Or 610, 613, 43
P3d 1114 (2002) (ballot title stated that terms were defined
“by citing current statutes,” when terms were defined by fed-
eral regulations; court required ballot title to be modified).4
4
The Attorney General suggests that we exercise our authority to certify
the ballot title with a modification to the “yes” result statement, changing “pro-
grams” to “enrollment.” See ORS 250.085(8) (when ballot title does not substan-
tially comply, Supreme Court may either “modify the ballot title and certify
the ballot title to the Secretary of State or refer the ballot title to the Attorney
General for modification”).
We reject the Attorney General’s invitation to modify the “yes” result state-
ment ourselves. As we explained in Straube/McEvilly v. Myers, 340 Or 395, 399,
133 P3d 897 (2006), we exercise our discretion to make such modifications when
the error “is not substantive” and doing so would not “deprive any party of any
opportunity to argue any theory that the party wished to advance respecting the
requirements of ORS 250.035(2).” Id. (error involved was “typographical”); see
also Bates/Dahlman v. Rosenblum, 355 Or 375, 377-78, 325 P3d 735 (2014) (same).
We note—without in any way commenting on the validity of the contention—that
petitioner Scott-Schwalbach asserts that merely changing “programs” to “enroll-
ment” would not be sufficient.
Cite as 371 Or 702 (2023) 711
C. “No” Result Statement
The “no” result statement must be “[a] simple and
understandable statement of not more than 25 words that
describes the result if the state measure is rejected.” ORS
250.035(2)(c). The statement “should accurately describe
the substance of current law on the subject matter of the
proposed measure.” Fletchall v. Rosenblum, 365 Or 98, 111,
442 P3d 193 (2019) (internal quotation marks and citation
omitted).
The Attorney General’s “no” result statement is as
follows:
“Result of ‘No’ Vote: ‘No’ vote maintains current sys-
tem of educational funding; no public funds for homeschool,
private, or religious school tuition; some publicly funded
programming/services available.”
Chief petitioner Ady argues that the statement
should reflect that rejecting the measure means that
cross-district enrollment may be blocked by a student’s
assigned school district, and that virtual private charter
school enrollment remains capped at three percent. The
Attorney General responds that the “no” result statement
correctly focuses on current law as it relates to the most
important effects of IP 30; given the word limit, it would not
be possible to include the additional information. We agree
with the Attorney General in that respect.
Petitioner Scott-Schwalbach maintains that the
“no” result statement should expressly state that public
funding of religious schools is prohibited by Article I, section
5, of the Oregon Constitution. The Attorney General count-
ers that it would risk confusing voters to discuss constitu-
tional effects only in the “no” result statement for a measure
that does not purport to amend the Oregon Constitution. We
agree with the Attorney General on that point as well.
D. Summary
Finally, we turn to the summary. The summary of
a ballot title must contain “a concise and impartial state-
ment” not exceeding 125 words that “summariz[es] the
* * * measure and its major effect.” ORS 250.035(2)(d). “The
712 Ady v. Rosenblum
function of the summary is ‘to provide voters with enough
information to understand what will happen if the mea-
sure is approved.’ ” Nearman/Miller, 358 Or at 822 (quoting
Caruthers v. Kroger, 347 Or 660, 670, 227 P3d 723 (2010)).
The Attorney General’s ballot title provides:
“Summary: Currently, Oregon resident students are
entitled to free, appropriate public education; no public
funds for homeschool, private, or religious school tuition;
some publicly funded programming/services available.
Provides public funds for qualified students through
accounts maintained by State Treasury. Annual amount per
student equals 80% of statewide average amount provided
to school districts for each child enrolled in public schools.
Funds directed from monies otherwise appropriated to
State Department of Education for public schools. Initially
available to low-income (defined), then to resident students
with household adjusted gross income under $125,000
(adjusted annually). Accounts used for homeschooling, reli-
gious/private school tuition, qualified expenses. Recipients
need not change creed, practices, admissions, curriculum.
Establishes cross-district enrollment. Allows additional
virtual charter schools. Constitutionality of religious school
funding uncertain.”
Chief petitioner Ady notes that the summary refers
to allowing “additional virtual charter schools,” instead of
informing voters that it would increase the available regis-
tration slots for those schools. For the reasons discussed in
connection with the “yes” result statement, we agree that
that is an error that should be corrected.
Chief petitioner Ady contends that the summary
should not call attention to the constitutionality of providing
funding for religious schools. The Attorney General argues
that it is appropriate to note the uncertainty about the con-
stitutional issues. For the reasons discussed in connection
with the caption, we agree with the Attorney General that
the note is appropriate.
Petitioner Scott-Schwalbach argues that the sum-
mary is inaccurate in referring to “80% of statewide average
amount provided to school districts for each child enrolled
in public schools.” He notes that IP 30 defines “statewide
Cite as 371 Or 702 (2023) 713
average distribution”—a phrase that is not found in the
summary—to use two weights provided for in ORS 327.013,
rather than the full list of weights in that statute. See IP 30
§ 1(7) (defining term as “average per student distribution”
adjusted by weights in ORS 327.013(1)(c)(A)(i) - (ii)); compare
ORS 327.013(1)(c)(A)(i) - (vi) (to determine the “[w]eighted
average daily membership,” six different weighting factors
are used). He contends that the summary should use the
phrase “statewide average distribution” in quotation marks,
with the additional notation “(defined).” The change, he
argues, would “signal that the term has a special definition
that is different from current understanding.”
The Attorney General contends that the sentence
accurately describes the measure’s effect in general terms.
She adds that petitioner Scott-Schwalbach does not explain
why more detail would aid voters.
We agree with the Attorney General. The term
actually used in the summary, “statewide average amount”
reads as a simple description; the summary does not use a
technical term that might confuse the voters, and it does
not give ordinary words an atypical meaning. See Parrish
v. Rosenblum, 362 Or 96, 106, 403 P3d 786 (2017) (“[T]his
is not a situation in which the use of technical, legal, or
unique wording drawn from the measure’s text results in
a caption that is impermissibly misleading or confusing.”).
Petitioner Scott-Schwalbach does not dispute that the sen-
tence otherwise “provide[s] voters with enough information
to understand what will happen if the measure is approved.”
Nearman/Miller, 358 Or at 822 (internal quotation marks
and citation omitted).
Petitioner Scott-Schwalbach’s argument expressly,
and incorrectly, assumes that the summary uses the term
“statewide average distribution,” which it does not. The pro-
posal to use “statewide average distribution” in quotation
marks, followed by “(defined),” would substitute a techni-
cal term from IP 30 for the Attorney General’s descriptive
text. Moreover, “statewide average distribution” is a term
apparently unique to IP 30, as the term does not occur in
the Oregon Revised Statutes or the Oregon Administrative
Rules. Petitioner Scott-Schwalbach thus asks that the
714 Ady v. Rosenblum
sentence in the summary be changed to make it less descrip-
tive and more obscure. We decline to do so.
Finally, petitioner Scott-Schwalbach contends that
the discussion of the income-eligibility limits is mislead-
ingly favorable. He contends that the relevant sentence—”[i]
nitially available to low-income (defined), then to resident
students with household adjusted gross income under
$125,000 (adjusted annually)”—is insufficient because it
does not specify the duration of “initially.” We do not find
the term misleading.
III. CONCLUSION
In sum, we conclude that the “yes” result statement
and the summary of the certified ballot title should be mod-
ified as discussed above.
The ballot title is referred to the Attorney General
for modification.