Peppers v. Myers , 325 Or. 611 ( 1997 )

KULONGOSKI, J.

In this original proceeding, petitioners challenge the Attorney General’s certified ballot title for a proposed initiative measure. Petitioners¹ are electors who, in a timely manner, submitted written comments about the Attorney General’s draft ballot title. ORS 250.067(1). Consequently, petitioners are entitled to seek modification of the proposed ballot title in this court. ORS 250.085(2). We have considered each of petitioners’ arguments and conclude that those arguments fail to demonstrate that the Attorney General’s ballot title does not comply substantially with the requirements of ORS 250.035(2). See ORS 250.085(5) (establishing this court’s standard of review of ballot titles). Accordingly, we certify the Attorney General’s ballot title without modification.

Pursuant to ORS 250.067(2), the Attorney General has certified the following ballot title:

“AMENDS CONSTITUTION: PROHIBITS USING PUBLIC RESOURCES TO COLLECT MONEY FOR POLITICAL PURPOSES

“RESULT OF YES’ VOTE: Yes’ vote prohibits using public resources to collect or help collect political funds.

“RESULT OF ‘NO’ VOTE: ‘No’ vote rejects prohibition on using public resources to collect or help collect political funds.

“SUMMARY: Amends constitution. Prohibits using ‘public funds’ to collect or assist in collecting ‘political funds.’ ‘Public funds’ defined to include public employee time, public property or equipment and supplies. ‘Political funds’ defined to include any expenditure supporting or opposing a candidate, ballot measure or initiative petition. Prohibition applies even if public entities are reimbursed for use of public funds for collection. Measure would prohibit public employee payroll deduction for any entity that uses any funds deducted for political purposes or that commingles political and nonpolitical funds.”

Petitioners challenge all sections of the Attorney General’s certified ballot title. We address their objections in turn.

Petitioners first object to the caption. They argue that use of the term “public resources” in the caption is misleading because, in their view, the proposed measure is not limited to prohibiting the use of public resources to collect money for political purposes. Petitioners argue that the “true subject” of the proposed measure is to ban all payroll deductions for voluntary employee contributions to any political action fund, candidate, or measure. Consequently, they argue that the caption should refer specifically to the prohibition against payroll deduction. Petitioners’ argument is not well taken.

The caption of a ballot title is limited to 10 words and must “reasonably identifiy] the subject matter of the state measure.” ORS 250.035(2)(a). The subject matter of the proposed measure is the prohibition of the use of public funds for collecting money for political purposes. That is a broad prohibition. One effect of that prohibition apparently would be to prohibit payroll deductions for public employee contributions to political causes.² However, there are other possible effects as well. Petitioners confuse the alleged motivation of the drafter for drafting the proposed measure with the actual subject matter of the proposed measure as written. Assuming that the primary motivation behind the drafting of this proposed measure was to prohibit payroll deductions of money to be used for political purposes, the subject matter of the proposed measure, as written, extends beyond payroll deductions. Indeed, given the scope of its wording, it would be misleading to characterize the proposed measure as pertaining only or even primarily to payroll deductions. We conclude that the Attorney General’s caption does not fail to comply substantially with ORS 250.035(2)(a) in any respect that is asserted by petitioners.

Petitioners next challenge both the “ ‘yes’ vote” and “‘no’ vote” result statements. Those statements serve to describe the result if the measure is approved or rejected by the voters. ORS 250.035(2)(b) and (c). Both statements use the term “public resources,” and petitioners argue that the statements are misleading for the same reason that they asserted with respect to the caption. We reject that argument for the same reason discussed above.

Petitioners also challenge the summary, and they propose the following alternative summary:

“SUMMARY: Amends Constitution. Law currently allows all employees to make political contributions by payroll deduction. Measure forbids payroll deduction of public employee political contributions and any other use of public property, equipment, supplies or employee time to assist in collecting funds if any portion of the collected funds are [sic] used to support or oppose candidates or measures. Ban applies even if the public body is reimbursed the costs of collection. Imposes penalties.”

ORS 250.035(2)(d) provides that a ballot title must contain “[a] concise and impartial statement of not more than 85 words summarizing the measure and its major effect.” The Attorney General’s summary uses the term “public funds” in place of the term “public resources” used in the caption and result statements. Apparently, the certified ballot title uses the terms interchangeably.³ Petitioners do not argue that the variation in terminology causes confusion. Instead, petitioners contend that use of the term “public funds” in the summary is misleading in the same way that petitioners argued that use of the term “public resources” was misleading. Again, we reject that argument based on the reasoning discussed above.

Petitioners also contend that the summary unnecessarily defines the terms “public funds” and “political funds.” Petitioners argue that those terms are defined in unorthodox ways and that, therefore, the definitions are “unnecessarily confusing.” Based on that premise, petitioners argue that use of both terms and their respective definitions should be deleted from the summary. Petitioners’ argument is unpersuasive. The use of those terms and their respective definitions tracks the wording of the proposed measure. At heart, petitioners object to the wording of the proposed measure. The Attorney General’s job is not to rewrite a proposed measure. Rather, in the context of the summary, it is to certify a summary that concisely and impartially apprises the voters of the subject matter and the major effect of the proposed measure. The inclusion of those terms and their respective definitions helps to summarize the proposed measure and its major effect. Therefore, such inclusion substantially complies with ORS 250.035(2)(d). .

Finally, petitioners contend that the summary is insufficient, because it fails to explain that public employees currently may make voluntary political contributions by payroll deduction. Petitioners assert that only by including that background information can the summary adequately inform voters how the proposed measure would change current law. We reject that argument as well. ORS 250.035(2)(d) does not require that a summary describe the current state of the law.⁴ It requires only that the summary concisely and impartially summarize the measure and its major effect. The Attorney General’s summary meets those requirements.

In sum, we conclude that the caption, result statements, and summary of the Attorney General’s certified ballot title do not fail to comply substantially with the requirements of ORS 250.035(2) in any of the respects urged by petitioners. Consequently, we certify the Attorney General’s ballot title to the Secretary of State.

Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10).

1 Two petitioners are Robert Crumpton and Bruce Adams, the Executive Director and President of the Oregon Education Association and Oregon Association of Classified Employees, respectively. The other petitioner is Rich Peppers, the Director of the Political Department of the Oregon Public Employees Union, Local 503, Services Employees International Union.

2 The parties agree that the prohibition would not prevent payroll deductions if those deductions did not include money that the recipient applied to any political purpose and that was not commingled with other funds that were used for political purposes.

3 The proposed measure uses only the term “public funds.” At oral argument, counsel for the Attorney General explained that that term was replaced in the certified ballot title with the term “public resources” in the caption and the result statements to better inform voters of the broad scope of the prohibition. However, in the summary, the certified ballot title retains the term “public funds” in quotation marks and defines that term.

4 Of course, it often will be true that, in explaining how a proposed measure will change existing law, a summary implicitly will inform the voters of the current state of the law as well.