Towers v. Rosenblum

No. 39 September 12, 2013 125
IN THE SUPREME COURT OF THE
STATE OF OREGON
Arthur TOWERS,
Gail Rasmussen,
and Bethanne Darby,
Petitioners,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(S061292)
En Banc
On petitions to review ballot title filed May 7, 2013; con-
sidered and under advisement August 6, 2013.
Steven C. Berman of Stoll Stoll Berne Lokting & Shlacher,
P.C., Portland, filed the petition and response for petitioner
Towers.
Margaret S. Olney of Bennett, Hartman, Morris &
Kaplan LLP, Portland, filed the petition and response for
petitioners Rasmussen and Darby.
Douglas F. Zier, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on the
answering memorandum were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Jill Gibson Odell, Beaverton, filed the amicus curiae
memorandum for herself.
Paul Gamson, Portland, filed the memorandum for amici
curiae Tom Chamberlain and Patrick Green.
LANDAU, J.
The ballot title is referred to the Attorney General for
modification.
Petitioners challenged the proposed ballot title for Initiative Petition 9 (2014),
which would amend several provisions of the Oregon Public Employee Collective
126 Towers v. Rosenblum
Bargaining Act. Held: The proposed ballot title does not identify the free-rider
effect of the measure and must be modified.
The ballot title is referred to the Attorney General for modification.
Cite as 354 Or 125 (2013) 127
LANDAU, J.
Petitioners seek review of the Attorney General’s
certified ballot title for Initiative Petition 9 (2014), arguing
that the ballot title does not satisfy the requirements of ORS
250.035(2). We review a certified ballot title to determine
whether it substantially complies with those statutory require-
ments. See ORS 250.085(5) (stating standard of review). For the
reasons that follow, we refer the ballot title to the Attorney
General for modification.
Initiative Petition 9, if adopted by the voters, would
amend several provisions of the Oregon Public Employee Col-
lective Bargaining Act (PECBA). PECBA currently allows
public employers and unions to enter into “fair-share” union
security agreements. ORS 243.666(1); ORS 243.672(1)(c).
Under those agreements, public employees choosing not to join
a union are nevertheless responsible for a proportional share
of the representation costs incurred by the union, collected
as “payment-in-lieu-of-dues” sums. ORS 243.650(10); Dale v.
Kulongoski, 321 Or 108, 111-12, 894 P2d 462 (1995).
Initiative Petition 9 declares that “[a] person shall
have the individual freedom of choice in the pursuit of public
employment” and that no one may be required either to join
or not join a labor organization as a condition of public
employment. It further provides that, “[i]f an employee does
not choose to join and participate in a labor organization,
such employee shall not pay an amount of money in-lieu-of-
dues to a labor organization, another organization, or third
party as a condition of employment.” That type of legislation
is often referred to by its popular political slogan, “right to
work.”
The Attorney General certified the following ballot
title for Initiative Petition 9:
“BALLOT TITLE:  Prohibits compulsory payment
of union representation costs by public employees
choosing not to join union
“Result of ‘Yes’ Vote:  ‘Yes’ vote prohibits requiring
represented public employees who choose not to join union
to make compulsory ‘payment in lieu of dues’ for union rep-
resentation costs.
128 Towers v. Rosenblum
“Result of ‘No’ Vote:  ‘No’ vote allows requiring rep-
resented public employees who choose not to join union to
make compulsory ‘payment in lieu of dues’ for union rep-
resentation costs.
“Summary:  Current law allows public employees to
bargain collectively through a labor organization/union as
their exclusive representative; prohibits requiring union
membership as condition of public employment; requires
union to fairly represent members and nonmembers in bar-
gaining unit; allows contracts requiring public employees
who choose not to join union to make compulsory ‘payment
in lieu of dues’ for cost of union representation. Measure
affirms public employees’ right to join or decline to join
union; prohibits requiring public employees choosing not
to join union to make compulsory ‘payment in lieu of dues’
for union representation costs; makes entry into such com-
pulsory payment agreements an unfair labor practice.
Measure applies only to new, renewed, or extended contracts
entered into after the effective date of the measure. Other
provisions.”
Petitioners challenge the caption, result statements,
and summary of the certified ballot title. We reject, without
discussion, all of those challenges save one, which is that
the caption, result statements, and summary all fail to iden-
tify properly the subject matter and effect of the initiative.
According to petitioners, all three components of the ballot
title fail to explain that the major effect of the measure is
“to allow employees to refuse to share in the costs of rep-
resentation that the union is legally obligated to provide.” In
petitioners’ view, the effect of the measure is thus to permit
“free riders” to obtain the benefits of the representation that
the union must provide without having to pay for them.
Petitioners argue that, in several prior cases, this court has
concluded that the law required that ballot titles for similar
measures include information about the free-rider effect of
adopting those measures.
The Attorney General answers that the ballot title
substantially complies with statutory requirements. She
argues that the law requires that the ballot title identify the
“subject matter” of the proposed measure and the subject mat-
ter of Initiative Petition 9 “is a proposed prohibition on requir-
ing ‘payments in lieu of dues’ * * * [from] public employees who
Cite as 354 Or 125 (2013) 129
choose not to join a union.” The Attorney General does not
appear to address petitioners’ argument that this case is
controlled by prior decisions of this court concerning similar
measures, which decisions required the ballot titles to include
an explanation of the free-rider effect of adopting those
measures.
We begin with the requirements for the caption.
ORS 250.035(2)(a) requires that a ballot title for a proposed
state measure contain a caption of not more than 15 words
that reasonably identifies the “subject matter” of the
proposed measure. The caption is the “headline” of the ballot
title; it “provides the context for the reader’s consideration of
the other information in the ballot title” and must describe
the proposed measure’s subject matter accurately. Greene v.
Kulongoski, 322 Or 169, 175, 903 P2d 366 (1995). For the
purposes of this court’s review, the “subject matter” of a
ballot title is “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).
As petitioners correctly observe, this is not the
first case in which this court has been asked to address the
sufficiency of a ballot title pertaining to a right-to-work
initiative. In Novick/Bosak v. Myers, 333 Or 18, 36 P3d 464
(2001), the court considered the proposed ballot title for a
proposed constitutional amendment that declared that all
employees have a “right to bargain directly as individuals
with their employers” and that no one may “be required to
accept or pay for representation or any other service” by labor
organizations unless the employee requests the represen-
tation or service in writing. Id. at 21.
The Attorney General’s certified caption read:
“AMENDS CONSTITUTION: DECLARES RIGHT OF
INDIVIDUAL EMPLOYEES TO ‘BARGAIN’ WITH
EMPLOYERS; REQUIRES WRITTEN ACCEPTANCE OF
UNION REPRESENTATION.” Id. at 22. The petitioners chal-
lenged the sufficiency of the caption, arguing that, among
other things, it failed to explain the free-rider effect of the
measure. Id. at 23. This court agreed, explaining,
130 Towers v. Rosenblum
“Under current law, unions and employers may negotiate
union security agreements that, in one form or another,
require bargaining unit employees who are not union mem-
bers to pay for the cost of union representation. In practical
terms, a prohibition on such agreements enables those
employees to receive union representation without cost and
represents a significant change in Oregon law. We agree
with petitioners that that prohibition is one of the * * * ‘sub-
ject matters’ that the proposed measure addresses and that
the Attorney General’s caption fails to identify that subject
matter.”
Id. at 26 (citations omitted).
The court addressed the same issue in Sizemore/
Terhune v. Myers, 342 Or 578, 157 P3d 188 (2007). In that
case, the court addressed the sufficiency of a ballot title for
a proposed measure that would have created a new stat-
ute declaring that no person may be required to “become or
remain a member of a labor organization” or “pay any dues,
fees, assessments or other similar charges, however denomi-
nated, of any kind or amount[,] to a labor organization.” The
Attorney General’s ballot title caption stated: “PROHIBITS
NEGOTIATED CONTRACTS REQUIRING: PRIVATE
EMPLOYEES TO JOIN UNION, REPRESENTED NON-
MEMBERS TO SHARE REPRESENTATION COSTS.” Id.
at 582. The petitioners argued that the caption was deficient
because, among other things, it failed to explain the free-
rider effect of the measure. Id. at 588. This court agreed:
“In context, the subject matter of the proposed measure
consists of two identifiable legal changes. The proposed
measure will eliminate any employment condition requiring
any person to pay money to a union, and, thereby, it will
entitle employees to receive the union’s legally mandated
representation services without sharing in the cost of those
services. The certified caption refers to only one of those
subjects. *  * The Attorney General must address that
*
deficiency on referral.”
Id. at 588-89 (emphasis in original).
This case is controlled by our prior decisions in
Novick/Bosak and Sizemore/Terhune. As in both of those
cases, the measure at issue in this one would, if adopted,
declare a right not to be required to join a labor organization
Cite as 354 Or 125 (2013) 131
as a condition of employment and a right not to pay dues,
fees, or other charges to such labor organizations. As in both
of those cases, an “actual major effect” is that employees
who choose not to be represented will be able to receive
services from a labor organization without having to pay for
them. And, as in both of those cases, the Attorney General’s
certified ballot title caption is deficient for failing to identify
that actual major effect.
As we have noted, petitioners argue that the certified
ballot title result statements and summary are deficient for
the same reason. Petitioners are correct. ORS 250.035(2)(b)
and (c) set out the requirements for result statements. They
require that a ballot title contain simple and understandable
statements, not to exceed 25 words, describing the result
of approval or rejection of the proposed measure. ORS
250.035(2)(d) requires that a ballot title for a proposed state
measure contain a concise and impartial summary of not
more than 125 words that summarizes the proposed measure
and its major effects.
In Dale, this court considered the Attorney General’s
certified ballot title for a proposed constitutional amendment
that would have provided that “no public employee * * * shall
be required or unduly pressured to join or otherwise be con-
nected to, or pay dues, or contribute fair share, or pay fees
or assessments to a public employee union.” 321 Or at 116.
The Attorney General prepared a ballot title that included
a summary stating that the measure “[b]ans requiring
employees to join union or to pay dues or representation costs.”
Id. at 110. The petitioners argued that the summary was inade-
quate because it failed to identify the free-rider effect of the
measure, and this court agreed, holding that the summary
did “not disclose that employees who are not members of the
union, but who are members of the bargaining unit, will
receive representation without cost.” Id. at 114.
Again, this court’s prior case law is controlling. The
Attorney General must address the foregoing deficiencies on
referral.
The ballot title is referred to the Attorney General
for modification.