S055745, Opinion — Caruthers v. Myers

596
On petition to review ballot title filed February 25, considered and under
advisement April 30, ballot title referred to the Attorney General for
modification June 19, modified ballot title certified July 7, 2008
(345 Or 96)
Jerry CARUTHERS
& Larry Wolf,
Petitioners,
v .
Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055745)
1 89 P3d 1

CJS, Statutes § 1 3 1 .
En Banc
Margaret S. Olney, of Smith, Diamond & Olney,
Portland, filed the petition for review.
Stacy RJ Guise, 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.

KISTLER, J.
Petitioners seek review of the Attorney General's
certified ballot title for Initiative Petition 27 (2010). 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 27, if enacted, would add the fol-
lowing text to the Oregon Revised Statutes:
"No employee shall be required to pay dues or other monies
to a union and no union shall be required to represent or
bargain for an employee who chooses not to be a member of
the union.
"(a) If an employee has not expressly agreed in writing to
be a member of or be represented by a union, then no money
shall be deducted from the employee's paycheck for the ben
efit of a union. Any employee of a collective bargaining unit
may withdraw from union membership and/or representa
tion at any time by delivering a signed, dated, written
notice to his or her employer stating that the employee does
not wish to be represented by the union.
"(b) This section shall not be implemented in a manner
impairing the obligations of an existing contract, but shall
affect new contracts and extensions to existing contracts. If
this section is invalidated by a court of competent jurisdic
tion in regard to any person or group of persons, it shall
remain in full force and effect for all persons and groups for
which it has not been invalidated."
The Attorney General certified the following ballot title for
Initiative Petition 27:
"PROHIBITS REQUIRING EMPLOYEES TO SHARE
COSTS OF UNION REPRESENTATION; UNION NOT
REQUIRED TO REPRESENT NONMEMBERS
"RESULT OF 'YES' VOTE: 'Yes' vote prohibits requir
ing employees within bargaining unit to share costs of
union representation; union is not required to represent or
bargain for nonmember employees.

Cite as 344 Or 596
"RESULT OF 'NO' VOTE: 'No' vote retains current
law authorizing agreements requiring employees to con
tribute to representation costs, requiring union to repre
sent all bargaining unit employees regardless of
membership.
"SUMMARY: Currently, employees may elect to be
represented in collective bargaining by union they choose.
An employee may decline to join union. Selected union
must bargain for and fairly represent all bargaining unit
employees, regardless of union membership. Collective bar
gaining agreement may require employees to contribute to
representation costs and may authorize payment through
payroll deduction. Measure prohibits agreements requiring
employees to contribute to representation costs. Provides
that unions shall not be required to represent or bargain for
employees who are nonmembers. Prohibits deductions from
an employee's paycheck for benefit of a union unless the
employee has expressly agreed in writing to become a mem
ber of or be represented by the union. Allows employee to
withdraw from union at any time with written notice. Other
provisions."
Petitioners challenge the caption, the "yes" vote result state
ment, and the summary. Petitioners' challenges to the vari
ous parts of the ballot title turn on the degree to which, in
drafting a ballot title, the Attorney General must describe
the effect of a measure in its statutory context, and we begin
with that issue.
The proposed measure would change state law to
provide, among other things, that "no union shall be required
to represent or bargain for an employee who chooses not to be
a member of the union." Petitioners argue that settled federal
law requires a private sector union to represent all the
employees in a bargaining unit and that that federal require
ment will continue to apply notwithstanding any changes
that the proposed measure might make to state law. See
Abood u. Detroit Board of Education, 431 US 209, 224, 97
S Ct 1782, 52 L Ed 2d 261 ( 1977) (unions subject to National
Labor Relations Act (NLRA), 29 USC §§ 151-169, must rep
resent all employees within the bargaining unit); Brown u.
Hotel Employees, 468 US 491, 503, 104 S Ct 3 179, 82 L Ed 2d
373 ( 1984) (federal labor law preempts inconsistent state

law). Petitioners also argue that current state law would con
tinue to impose similar obligations on public sector unions
even if the measure is enacted. See Sizemore v. Kulongoski,
322 Or 229, 236 n 4, 905 P2d 1 146 ( 1995) (public employee
unions must represent all employees, union and nonunion).
Petitioners conclude that, considered in the context of those
statutes, the effect of the proposed measure is more limited
than the ballot title states.
The Attorney General recognizes that the premise of
petitioners' argument "may well be correct." That is, the
Attorney General does not dispute that, if the measure were
adopted, its effect would be limited. The Attorney General
observes, however, that petitioners' argument rests in part
on a determination that federal law would preempt part of
the proposed measure-a determination that he asserts "is
beyond the scope of the ballot title process." Accordingly, he
reasons that the ballot title properly describes the terms of
the ballot measure without regard to its actual effect (or lack
of effect) on existing law.
ORS 250.035 requires the Attorney General to draft
a 15-word caption that "identifies the subj ect matter of the
state measure," a 25-word "yes" vote result statement that
"describes the result if the * * * measure is approved," and a
125-word summary of the "measure and its m aj or effect."
ORS 250.035(2)(a), (b), and (d). The purpose of those require
ments is to ensure that voters have accurate information
about the subject and effect of a proposed measure. This court
has held that, to comply with those statutory requirements,
the Attorney General may have to go beyond the words of a
measure in order to give the voters accurate and neutral
information about a proposed measure. See Wolf v. Myers,
343 Or 494, 500-0 1, 1 7 3 P3d 812 (2007) (ballot title prepara
tion requires some level of interpretation of the measure);
Pelikan ! Tauman v. Myers, 342 Or 383, 389, 153 P3d 1 1 7
( 2007) ("[W] hen the effects of a measure are not reasonably
subj ect to dispute, the Attorney General may (and sometimes
must) go beyond the terms of the measure and mention those
effects in the ballot title"); Kain / Waller v. Myers, 337 Or 36,
40-41, 93 P3d 62 ( 2004) (explaining that determining the
subject matter of a measure requires, among other things,
examining the changes that a measure would make "in the

Cite as 344 Or 596 (2008) 601
context of existing law" and requiring that the caption nei
ther understate nor overstate those changes).
In this case, petitioners argue that the ballot title
fails to put the proposed measure "in the context of existing
law." See Kain / Waller, 337 Or at 41 (describing that require
ment). We agree with petitioners' argument. As petitioners
have argued and as the Attorney General has not disputed,
settled federal law requires private sector unions to repre
sent all employees in a bargaining unit without regard to
whether they are union members. Abood, 431 US at 224.
Although the proposed measure purports to excuse private
sector unions from that obligation as a matter of state law,
state law cannot excuse what federal law requires. Brown,
468 US at 503. Not only is the law settled but its application
here is clear. Under settled law, the proposed measure would
have no effect on a private sector union's federal obligation to
represent all the employees in a bargaining unit.
In responding to petitioners' objections to the ballot
title, the Attorney General does not address this court's deci
sion in Kain / Waller, which requires that the Attorney
General examine the words of a measure in the context of
existing law. Rather, he argues:
"Petitioners' real objection appears to be that the measure
cannot do what it purports to do: eliminate a union's
requirement to represent nonmembers. Petitioners may
well be correct. But the validity of the measure itself is
beyond the scope of the ballot title process."
The Attorney General does not cite any authority in support
of that argument. He did, however, cite Sizemore v. Myers,
326 Or 220, 953 P2d 360 ( 1997), in support of that proposition
before the Secretary of State. In Sizemore, this court held
that the ballot title in that case need not discuss the effect
that a proposed constitutional amendment to prohibit
regional governments would have on Oregon's constitutional
home rule provisions. 326 Or at 231. The court reasoned that
discussion of that issue "would require extensive legal inter
pretation, not only of the proposed initiative measure, but
also of the interaction of the initiative measure with other
constitutional provisions." Id.

602 Caruthers v. Myers
This aspect of the case does not present the same
problem that concerned the court in Sizemore. In Sizemore,
the relationship between the proposed measure and existing
law was complex and unresolved. Here, the relationship
between the proposed measure and existing federal law is
straightforward and settled. When petitioners objected to the
Attorney General's proposed ballot title on the ground that,
under settled federal law, the effect of the measure would be
more limited than the ballot title explained , Sizemore pro
vided no basis for avoiding the Attorney General's obligation
to describe the proposed measure accurately.
Even though the proposed measure would not affect
a private sector union's federal obligation to represent all the
employees within a bargaining unit, federal labor law does
not apply to state public sector unions. Regarding state pub
lic sector unions, petitioners argue that "the practical effect of
the measure's provision allowing a union to refuse 'to repre
sent' a non-member is unclear." They note that existing state
statutes impose interrelated obligations on public sector
unions to represent all members of a bargaining unit, that a
union's failure to represent all the members of the bargaining
unit could constitute a violation of those statutes, and that
the extent to which the measure would change those obliga
tions is not certain. As noted, the Attorney General acknowl
edges that petitioners "may well be correct."
Either the legislature or the people acting through
the initiative may repeal or amend existing state statutes.
The interpretive issue posed by the proposed measure is the
extent to which the proposed measure, if adopted, would alter
existing state law governing the relations between public sec
tor unions and the workers they represent. The answer to
that interpretative issue is, as petitioners acknowledge, com
plex. Unlike the effect on private sector unions, the effect of
the proposed measure on public sector unions cannot be
described as clear. It follows that, in this case, the issue
becomes how should the Attorney General draft a ballot title
when faced with such an ambiguity.
On that issue, this court explained in Wolf that,
when there are two or more plausible interpretations of a
proposed measure, "we ordinarily have declined to choose (or

Cite as 344 Or 596 603
to permit the Attorney General to choose) one of those inter
pretations for purposes of the ballot title." 343 Or at 50 1 ; see
also Sizemore, 326 Or at 2 3 1 ( declining to require Attorney
General to resolve ambiguity) . Rather, the court explained
that, in drafting the ballot title, the Attorney General should
communicate the ambiguity to the voters, and it identified
various ways in which the Attorney General could accom
plish that task. 343 Or at 50 1-02. In some cases, it may be
appropriate to use the terms from the measure. Id. The court
cautioned, however, that
"merely using terms taken from the measure itself does not
necessarily meet the statutory requirements for a ballot
title, and the Attorney General i s required to draft a ballot
title that accurately describes the subject matter of the pro
posed measure, the result if the measure were to pass, and
the major effect of the measure."
Id. at 502.
With that background in mind, we turn to petition
ers' objections to the caption, the "yes" vote result statement,
and the summary. As noted, ORS 250.035(2)(a) requires the
Attorney General to draft a 15-word caption that "reasonably
identifies the subject matter of the state measure." In this
case, the Attorney General sought to identify the subject mat
ter of the measure by describing its two purported major
effects. See Kain u. Myers, 336 Or 1 16, 120-2 1, 79 P2d 864
(2003) (noting that method as one way of identifying a meas
ure's subject matter). Specifically, the Attorney General cer
tified the following caption:
"PROHIBITS REQUIRING EMPLOYEES TO SHARE
COSTS OF UNION REPRESENTATION; UNION NOT
REQUIRED TO REPRESENT NONMEMBERS"
The difficulty with Attorney General's caption is that the sec
ond effect that he identifies is not an accurate description of
one of the measure's effects and thus does not substantially
comply with ORS 250.035(2)(a). See Kain / Waller, 337 Or at
40 (caption should not "understate or overstate the scope of
the legal changes that the proposed measure would enact").
As explained above, the proposed measure would not relieve
a private sector union of its federal obligation to represent all
the members of the bargaining unit, and the measure's effect
on a public sector union's state obligation to represent all the

members of a bargaining unit is unclear. In this context,
merely repeating the words of the proposed measure does not
communicate the measure's more limited effect. See Wolf,
343 Or at 502 (recognizing that proposition).1 The caption
must be modified.
Petitioners also challenge the "yes" vote result state
ment, arguing that it is deficient for the same reason that the
caption is: It tells the voters, without qualification and thus
inaccurately, that one effect of a "yes" vote is that a "union is
not required to represent or bargain for nonmember employ
ees." The "yes" vote result statement should reflect the meas
ure's more limited effect. See Novick I Crew v. Myers, 337 Or
568, 574, 100 P3d 1 064 (2004) ("yes" vote result statement
should reflect a proposed measure's "most significant and
immediate" consequences); Pelikan I Tauman, 342 Or at 390-
91 (concluding that "yes" vote result statement should reflect
effect on plaintiffs lawyers of a general limitation on contin
gent fees). Like the caption, the "yes" vote result statement
must be modified.
Finally, petitioners challenge the summary. ORS
250.035(2)(d) requires " [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 caption and "yes" vote result statement, must inform
voters that the measure's actual effect would be more limited
than the face of the measure would suggest. For the reasons
stated above, we agree. See Pelikan / Tauman, 342 Or at 390-
91 (concluding that summary should reflect effect on plain
tiffs lawyers of a general limitation on contingent fees).
Accordingly, we refer the caption, "yes" vote result state
ment, and the summary to the Attorney General for
modification.
Ballot title referred to the Attorney General for
modification.
1 We recognize that, if the Attorney General seeks to describe the subject mat
ter of the measure by listing its major effects, the task ofdrafting a 1 5-word caption
that accurately describes those effects while also distinguishing between private
and public unions could present difficulties. As this court has observed, however,
the Attorney Ckneral can sometimes avoid those difficulties by describing the sub
ject matter of the measure more generically. See Kain, 336 Or at 121 (discussing
that issue).