S057315, Opinion — Caruthers v. Kroger (S057315)

574
On petition to review ballot title filed April 30, considered and under advisement
on July 1, ballot title referred to Attorney General for modification August 6,
modified ballot title certified September 17, 2009 (347 Or 45)
Jerry CARUTHERS
and Larry Wolf,
Petitioners,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057315)
213 P3d 1251

Cite as 346 Or 574 	575
CJS, Statutes§ 131.
En Banc
Aruna A. Masih, Bennett, Hartman, Morris & Kaplan
LLP, Portland, filed the petition and the reply memorandum
for petitioners.
Erin C. Lagesen, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With her on the
memorandum were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
Nathan R. Rietmann, Salem, filed a brief for amicus
curiae Jim Greenfield.
BALMER,J.
The ballot title is referred to the Attorney General for
modification.

576 	Caruthers v. Kroger (S057315)
BALMER,J.
Petitioners seek review of the Attorney General's
certified ballot title for Initiative Petition 34 (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 34, 	if enacted, 	would amend
Oregon law to provide that "no public resource shall be used
to collect or help collect money used for a political purpose."
The measure defines "public resources" 1 to include "public
money, public employee time on the job during working
hours, and public buildings, equipment and supplies." It fur-
ther states that "a resource shall be deemed to have been
used, even if the public entity is reimbursed for the cost of
using or providing it * * *." The proposed measure defines
"political purpose" to include, among other things, contribu-
tions or independent expenditures in support of or in opposi-
tion to a candidate, political party, or initiative or referen-
dum. The measure would penalize any person or entity that
uses for a political purpose money collected in whole or in
part through the use of "a public resource" or that "commin-
gles" money so collected with "political funds." If a person or
entity violates the prohibition, then the person or entity must
pay a civil penalty of twice the amount of money spent in vio-
lation of the measure, and, thereafter, "no public employer or
government entity shall collect money for any purpose for
that person or entity."
The Attorney General certified the following ballot
title for Initiative Petition 34:
"PENALIZES INDIVIDUALS, ENTITIES FOR USING
FUNDS COLLECTED WITH 'PUBLIC RESOURCE'
(DEFINED) FOR 'POLITICAL PURPOSE' (DEFINED).
"RESULT OF 'YES' VOTE: 	'Yes' vote prohibits indi-
viduals, entities from using money for 'political purpose'
1 The prohibition in Initiative Petition 34 uses the term "public resource,"
while the definition refers to "public resources."

Cite as 346 Or 574 (2009) 	577
(defined) if collected with 'public resource' (defined) or com-
mingled with such money; mandates penalties.
"RESULT OF 'NO' VOTE: 	'No' vote retains current
law, which does not restrict individuals', entities' use of
money collected with public resources, or commingling such
money with 'political' funds.
"SUMMARY: 	Current law allows individuals, entities
to use money for 'political purposes,' including money col-
lected with 'public resources.' Measure prohibits individu-
als, organizations, other entities from using money for
'political purposes' if 'public resources' were used in col-
lecting it. 'Money' includes in-kind contributions, inde-
pendent expenditures, pass-through contributions. 'Public
resources' include money, public employee work time,
buildings, equipment, supplies, excluding resources used in
preparing, circulating official voters' pamphlet, conducting
election. 'Used for political purpose' means: contributed to
candidate, political committee, political party, initiative/
referendum committee; spent supporting, opposing candi-
date, ballot measure, gathering signatures for proposed
measure, petition; excludes certain lobbying activities.
Mandates civil penalties; bars government from collecting
money for entity that uses such money for 'political purpose'
or commingles it with 'political' money. Other provisions."
Petitioners are electors who timely submitted writ-
ten comments to the Secretary of State concerning the con-
tent of the Attorney General's draft ballot title and who
therefore are entitled to seek review of the resulting certified
ballot title in this court. See ORS 250.085(2) (stating that
requirement). Petitioners challenge the caption, the "yes"
and "no" vote result statements, and the summary.
A ballot title must contain a caption "that reason-
ably identifies the subject matter" of the proposed measure.
ORS 250.035(2). Petitioners assert that the caption of the cer-
tified ballot title, which focuses on the fact that the measure
"penalizes" individuals and entities that "us[e]" for a political
purpose funds collected for them by means of a public
resource, understates the scope of the measure and thus does
not properly identify the subject of the measure. The caption
understates the scope of the measure, petitioners argue,
because the prohibition on the use of public resources to col-
lect such money affects not only individuals and entities who

578 	Caruthers v. Kroger (8057315)
use that money and for whom the measure establishes spe-
cific penalties, but also others, such as public employers, that
may be involved in collecting the money. Petitioners state
that "the restriction is the central subject of the measure and
the penalty only the consequence of a violation of that prohi-
bition." The Attorney General responds that the penalties are
a key aspect of the measure and that, by specifying that those
who use money collected with "public resources" for "political
purposes" will be penalized, the certified caption informs
voters about what the measure prohibits and also that the
measure contains an enforcement mechanism.
On balance, we agree with petitioners. The Attorney
General is certainly correct that the penalty provision is an
important part of the measure, and those subject to the pen-
alties-individuals and entities that use for a political pur-
pose money collected by means of a public resource-doubt-
less have an interest in knowing the penalty for violating the
prohibition. However, the measure also restricts the conduct
of other entities, including public employers and other gov-
ernmental entities, that are not subject to any specific pen-
alty. Moreover, the prohibition directly affects yet another
group-public 	employees 	who 	may 	wish 	to 	contribute
through a payroll deduction or similar procedure to an entity
that uses some of the money collected for a political purpose.
Thus, in our view, the prohibition in the measure is broader
than the caption suggests. The emphasis in the certified cap-
tion on the individuals and entities that are subject to specific
penalties comes at the expense of the identification of the pro-
hibition itself. That prohibition, which is plainly stated in the
first sentence of the measure, quoted above, must be referred
to in the caption. 2
Petitioners assert that the caption also fails to meet
the statutory standard because of other alleged deficiencies,
but we do not find those arguments to be well taken. We also
2 Petitioners did not challenge the "yes" and "no" vote result statements or the
summary on the grounds just discussed. However, changes to the caption that are
required based on this decision may lead the Attorney General to make alterations
in other parts of the ballot title in the interest of compliance with ORS
250.035(2)(b) to (d). The Attorney General has the authority to make changes of
that kind. See Hunnicutt I Stacey v. Myers, 343 Or 387, 393, 171P3d349 (2007) (so
noting).

Cite as 346 Or 	579
reject without discussion petitioners' challenge to the "yes"
vote result statement in the certified ballot title.
Petitioners also challenge the "no" vote result state-
ment. They argue that the statement fails to make clear that
current law allows individuals and entities to spend their
own money for political purposes, whether or not any part of
that money was collected with public resources. Although the
specifics of petitioners' argument are not entirely clear, peti-
tioners appear to have two concerns. First, they are con-
cerned that, because the "no" vote result statement states
that current law does not restrict the use of"money collected
with public resources," voters may mistakenly understand
that current law allows the use of "public" money for political
purposes, rather than only money of public employees that
those employees choose to contribute-for example, through
a payroll deduction plan-to a union or other organization.
Second, they suggest that the statement fails to make clear
that current law imposes no restrictions on the use of money
collected from individuals by means of public resources-or
on the use of other funds of an individual or organization with
which money gathered by means of public resources may be
commingled.
We 	sympathize 	with 	the 	task 	of the 	Attorney
General in seeking to describe current law as it contrasts
with the complicated restrictions that the measure would
impose. We do agree, however, with both of petitioners' con-
cerns. Some change should be made to the "no" vote result
statement to make it clear that the money referred to is the
employees' own money, rather than "public" money, and that
current law imposes no restrictions on the way individuals or
entities may use their own money, whether or not that money
was collected, in whole or in part, by means of public
resources.
Finally, petitioners argue that the certified summary
fails 	to 	accurately 	summarize 	the 	measure 	in 	several
respects. We agree with one of petitioners' arguments. As
noted above, the measure provides that a "public resource"
has been "used" even if the public entity is reimbursed for the
cost of using or providing the resource. The summary does
not describe that aspect of the definition of"public resource."

580 	Caruthers v. Kroger (8057315)
Petitioners argue that the summary should inform voters
that "even where there is no expenditure of public resources,
i.e.[,] when the cost of such resources is reimbursed, the
measure prohibits use of such funds for 'political purpose' or
maintenance of such funds with funds used for 'political pur-
pose.'" The Attorney General responds that the certified
summary accurately summarizes the 	proposed measure
because it describes the flat prohibition on the use for politi-
cal purposes of funds collected using public resources. The
Attorney General asserts that voters will understand that
"any use of public resources to collect [money that is used for
a political purpose], without exception, triggers the restric-
tion***."
We agree with petitioners. Absent the proposed
measure's definition of "public resources" as including any
use of public resources, even if reimbursed, one could make a
reasonable argument that, if there is no net expenditure of
public resources, no public resources were used. The measure
appears to foreclose that interpretation, and voters must be
informed of that aspect of the measure.
The ballot title is referred to the Attorney General
for modification.