S055744, Opinion — Chamberlain v. Myers (S055744)

605
On petition to review ballot title filed February 25, 2008; considered and under
advisement on April 30, ballot title referred to the Attorney General for
modification June 19, modified ballot title certified July 23, 2008
(345 Or 160l
Tom CHAMBERLAIN
& Barbara Byrd,
Petitioners,
u.
Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055744)
189 P3d 6

606 Chamberlain v. Myers (S055744)
C,JS, Statutes § 1 3 1 .
En Banc
Margaret S. Olney, of Smith, Diamond & Olney,
Portland, filed the petition for review.
Judy C. Lucas, Senior Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the memorandum were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
KISTLER, J.
Ballot title referred to the Attorney General for
modification.

Cite as 344 Or 605 607
KISTLER, J.
Petitioners seek review of the Attorney General's
certified ballot title for Initiative Petition 26 (20 10). See ORS
250.085(2) (specifying requirements for seeking review of cer
tified ballot title). This court reviews the certified ballot title
to determine whether it substantially complies with ORS
250.035(2). See ORS 250.085(5) (stating standard of review).
For the reasons explained below, we refer the ballot title to
the Attorney General for modification.
Initiative Petition 26, if enacted, would add the fol-
lowing text to the Oregon Revised Statutes:
"No employee shall be required to pay money to a union or
be represented by a union unless a majority of the subject
employees have voted in a secret ballot election to be rep
resented by the union. Due to the serious potential for coer
cion and undue pressure, an employee's card check author
ization shall not be deemed a valid vote for unionization."
The Attorney General certified the following ballot title for
Initiative Petition 26:
"EMPLOYEES NOT REQUIRED TO BE REPRESENTED
BY UNION, SHARE REPRESENTATION COSTS
ABSENT SECRET-BALLOT ELECTION
"RESULT OF 'YES' VOTE: 'Yes' vote excuses employ
ees from being represented by union, sharing representa
tion costs, unless majority of 'subject employees' (unde
fined) authorized union representation in secret-ballot
election.
"RESULT OF 'NO' VOTE: 'No' vote retains law: union
approved by employees (by election or written authoriza
tion) represents all employees; all employees may be
required to share representation costs.
"SUMMARY: Under current law, employees may
choose union representation by majority of votes cast in a
secret-ballot election or through employer recognition
based on written authorizations from majority of employ
ees. Representation continues unless 30 percent of employ
ees show support for election to decertify union and major
ity vote to decertify. Selected union must represent all
employees, regardless of union membership. A collective
bargaining agreement may require all employees to

608 Chamberlain v. Myers (S055744)
contribute to representation costs. Under measure, no
employee may be required to be represented by union or to
contribute to costs of representation unless a majority of
'subject employees' (not defined) have voted in a secret
ballot election to be represented by the union. Employee's
'card check authorization' (not defined) is not a valid vote.
Other provisions."
Petitioners challenge the caption, the "yes" vote result state
ment, and the summary.
Petitioners argue that the caption in this case is defi
cient for the same reasons that we held the caption in
Caruthers v. Myers, 344 Or 596, 189 P3d 1 (2008), deficient.
See ORS 250.035(2)(a) (requiring a "caption of not more than
15 words that reasonably identifies the [measure's]
subject matter"). In that case, as in this one, the Attorney
General sought to identify the subject matter of the measure
by describing the measure's major effects. See Kain v. Myers,
336 Or 1 16, 12 1, 79 P3d 864 (2003) (noting that method as
one way of identifying a measure's subject matter). In doing
so, however, the Attorney General has overstated one effect
of the measure. The measure would not relieve private sector
unions of their federal obligation to represent all the employ
ees in the bargaining unit, and its effect on public sector
unions' comparable state obligation is unclear. The caption is
deficient in overstating that effect. See Caruthers, 344 Or at
603-04 (explaining that proposition). We recognize that the
measure in this case is more complex than the measure at
issue in Caruthers and thus presents a more difficult chal
lenge for the Attorney General to identify its subject matter
in 15 words. However, the caption, as presently stated, is not
accurate and must be referred.
Petitioners also challenge the "yes" vote result state
ment. They contend that it is deficient for the same reasons
that we discussed in Caruthers. See ORS 250.035(2)(b)
(requiring a "simple and understandable statement of not
more than 25 words that describes the result if the state
measure is approved"). We agree. Petitioners also argue that
the "yes" vote result statement should alert voters to the fact
that the proposed measure would effect a significant change
in secret-ballot elections by replacing the current simple
majority standard for winning elections with an absolute

Cite as 344 Or 605 609
majority standard. As petitioners note, existing law govern
ing public sector union elections provides that the winner of a
secret-ballot election is the entity that obtains the support
of a "majority of the votes cast in [the] election." ORS
243. 686(4). By contrast, the measure provides that "a major
ity of the subject employees" must vote to be represented by a
union before the employees can be required to be represented
by the union and share representation costs.
The Attorney General agrees that "this measure
would significantly change the way the majority vote is deter
mined in union representation elections." He argues, how
ever, that the "yes" vote result statement adequately
addresses the change by stating that the measure requires a
"majority of 'subject employees' (undefined)" to elect union
representation.
The decision in Crumpton v. Kulongoski, 321 Or 279,
896 P2d 12 1 1 ( 1995), answers the parties' dispute. The pro
posed measure in Crumpton would have amended the state
constitution to replace the simple majority requirement for
passage of ballot measures that raise government revenue
with an absolute majority requirement. Id. at 281. As this
court explained, the measure would have replaced the "tra
ditional rule * * * that a majority of those voting will deter
mine the outcome of an election" with "a new rule" under
which "all persons who are eligible to vote * * * participate in
the election" whether they vote or not. Id. at 28 1-82. Under
the measure, "votes that are not cast at all * * * [would] count
as 'no' votes" instead of not counting. Id. at 282.
The ballot title question1 in Crumpton stated that
the measure would bar passage of all revenue-raising meas
ures "submitted to voters unless majority ofregistered voters
approve ." Id. at 28 1. This court held that the question failed
to comply with statutory standards because "it fail[e] d to
inform the voters" about the "very significant change" that
the measure would have made regarding the type of majority
required to raise government revenue. Id. at 282-83. In the
1 At the time of this court's decision in Crumpton, the "yes" vote result state
ment and "no" vote result statement were combined i n a single question. The leg·
islature later amended the statute to omit the question in favor of separate "yes"
and "no" vote result statements. See 1995 Or Laws, ch 534, § 1 (making change).

610 Chamberlain v. Myers (8055744)
court's view, the reference to a "majority of registered voters"
did not "effectively" highlight that change because it did not
"make it clear that, for future passage of [revenue-raising
ballot measures] , this measure will require 50 percent plus
one of all registered voters, including those who do not vote,
not 50 percent plus one of all registered voters who vote ." Id.
at 282 (some emphasis omitted).
The change that the proposed measure in Crumpton
would have imposed on the majority requirement for ballot
measures raising government revenue is identical to the
change that the proposed measure in this case would impose
on the majority requirement for union representation elec
tions. Following Crump ton, we hold that the "yes" vote result
statement must effectively highlight the shift from a simple
maj ority standard to an absolute majority standard that this
measure would impose. We also conclude that the "yes" vote
result statement fails to effectively highlight that change. It
is true, as the Attorney General notes, that the "yes" vote
result statement refers to a "majority of 'subject employees'
(undefined)." That reference, however, is similar to the pro
vision in the question in Crumpton referring to a "majority of
registered voters." Just as the latter reference failed to make
clear the nature and scope of the change that the proposed
measure in Crumpton would have imposed, the wording on
which the Attorney General relies in this case also is
insufficient.
Finally, petitioners challenge the summary. See ORS
250.035(2)(d) (requiring a "concise and impartial statement
of not more than 125 words summarizing the state measure
and its major effect"). Petitioners argue that the summary,
like the "yes" vote result statement, is insufficient for the rea
sons stated in Caruthers. We agree. They also argue that the
summary is insufficient because it fails to effectively high
light the change that the proposed measure would impose on
the type of majority necessary to win a union representation
election. The Attorney General contends that the summary
adequately addresses that change because it contains one
statement mentioning that, "[u] nder current law, employees
may choose union representation by majority of votes cast in
secret-ballot election," and a second statement indicating

Cite as 344 Or 605 (2008) 6 1 1
that the measure requires the support of "a majority of 'sub
j ect employees' (not defined)."
In our view, the two statements on which the
Attorney General relies do not satisfy Crumpton, viz. , they do
not "effectively" highlight the significant change that the
measure would make. Although the first statement identifies
the current state of the relevant law and the second state
ment identifies what the relevant law will be if the measure
is enacted, the first sentence is located at the beginning of the
summary and the other at the end. Nothing in the summary
highlights the causal connection between the measure's
enactment and the change described in the statements, or
indeed states that there will be any change. Following
Crumpton, we hold that the summary must be modified. 2
B allot title referred to the Attorney General for
modification.
2 We have considered other challenges that petitioners make to the ballot title
and reject them without further discussion.