S057678, Opinion — Caruthers v. Kroger

660
On petition to review ballot title filed August 10, considered and under advisement
on November 17, 2009, ballot title referred to Attorney General for modification
February 11, petitioner's objections to modified ballot title filed February 19,
Attorney General's certified ballot title referred to Attorney General by
opinion for further modification March 18, 2010
See 348 Or 63, 228 P3d 549 (2010)
Jerry CARUTHERS,
Petitioner,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057678)
227 P3d 723

Cite as 34 7 Or 660 	661
CJS, Statutes§ 131.
En Banc
Thomas K 	Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and reply memorandum for
petitioner.
Douglas F. Zier, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on
the memorandum were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
GILLETTE, J.
The ballot title is referred to the Attorney General for
modification.

662 	Caruthers v. Kroger
GILLE'ITE, J.
Petitioner seeks review of the certified ballot title for
Initiative Petition 43 (2010). See ORS 250.085(2) (describing
ballot title review process). Initiative Petition 43 (2010), if
approved, would add to the Oregon Constitution's provisions
concerning the collection of voter signatures and the qualifi-
cation of proposed initiative and referendum measures for
submission to the voters. We review the certified ballot title
for substantial compliance with statutory requirements. ORS
250.085(5).
The complete text of Initiative Petition 43 (2010) is
as follows:
"In order to respect voter participation in the initiative and
referendum process, and in order to ensure the integrity of
public officials in reviewing signatures on petitions, the
People add the following provision to Section 1, Article IV of
their Constitution:
"Every registered voter who has signed an initiative or ref-
erendum petition that has been filed as provided in section
(1)(2)(e) or section (1)(3)(b) of this Article is guaranteed the
right to have his or her signature counted for purposes of
determining whether the initiative or referendum petition
has obtained enough signatures to qualify for submission to
the voters. No statute or rule may restrict this right."
The Attorney General certified the following ballot title for
that proposed constitutional amendment:
"Amends Constitution: 	Guarantees registered
voter right to have signature counted in determining
initiative/referendum qualification for ballot
"Result of 'Yes' Vote: 	'Yes' vote requires every regis-
tered voter's signature on initiative/referendum petitions to
be counted in determining if sufficient number were col-
lected to qualify measure for ballot.
"Result of 'No' Vote: 	'No' vote retains laws regarding
acceptance, verification of signatures on initiative/referen-
dum petitions, including use of statistical sampling in
determining if sufficient number were collected.
"Summary: 	Amends constitution. Initiative/referen-
dum petitions qualify for submission to voters only when

Cite as 347 Or 660 (2010) 	663
they are signed by sufficient number of qualified voters;
exact number depends on type of measure. Currently, laws
and administrative rules establish requirements for signa-
ture collection and verification to prevent fraud, forgery, or
improper signature gathering. Instead of counting each sig-
nature submitted, elections officials use statistical sam-
pling of signatures from valid petition forms to determine if
sufficient number of qualified voter signatures were col-
lected. Measure guarantees registered voters right to have
their signatures counted in determining if sufficient num-
ber of signatures were submitted to qualify measure
for ballot; prohibits any statute or administrative rule
from restricting this right; may invalidate existing consti-
tutional provisions, statutes, administrative rules regard-
ing initiative/referendum petition requirements. 	Other
provisions."
Petitioner is an elector who timely submitted com-
ments regarding the draft ballot title, and who therefore is
entitled to challenge the certified ballot title in this court.
Petitioner contends that the ballot title's caption, its "yes"
and "no" vote result statements, and its summary all are
insufficient. 	Before addressing petitioner's 	specific chal-
lenges, however, we describe briefly the existing legal context
in which Initiative Petition 43 (2010), if it were approved,
would apply.
Article IV, section 1(2)(a), of the Oregon Constitution
provides that
"[t]he people reserve to themselves the initiative power,
which is to propose laws and amendments to the Constitution
and enact or reject them***."
Section (3)(a) of that same Article similarly provides that
"[t]he people reserve to themselves the referendum power,
which is to approve or reject at an election any Act, or part
thereof, of the Legislative Assembly that does not become
effective earlier than 90 days after the end of the session at
which the Act is passed."
An initiative 	proposing a 	statutory enactment may 	be
brought by filing a petition signed by a number of qualified
voters equal to at least six percent of the total number of
votes cast for all candidates for governor at the last preceding
election at which a governor was elected to a four-year term.

664 	Caruthers v. Kroger
Or Const, Art IV, § 1(2)(b). An initiative proposing a consti-
tutional amendment may be initiated by filing a petition
signed by a number of qualified voters equal to at least eight
percent of such votes. Or Const, Art IV, § 1(2)(c). A referen-
dum commenced by petition must be supported by a petition
signed by a number of qualified voters equal to at least four
percent of such votes. 1 Or Const, Art IV,§ 1(3)(b).
The Oregon Constitution also identifies the way in
which rules respecting the initiative and referendum process
are to be created. Article IV, section 1(4)(b), provides:
"Initiative and referendum measures shall be submit-
ted to the people as provided in this section and by law not
inconsistent therewith."
In addition, and after referring to "[t]he initiative and refer-
endum powers reserved to the people by subsections (2) and
(3) of this section," Article IV, section 1(5), provides, in part:
"The manner of exercising those powers shall be provided
by general laws."
That is to say, the constitution empowers the legislature with
the authority and responsibility for fleshing out the process.
Acting pursuant to the authority granted in the fore-
going provisions, the legislature has enacted a number of
statutes that govern, among other things, the collection and
counting of voter signatures on initiative and referendum
petitions. Several of those statutes are designed to assist in
the enforcement of Article IV, section lb, of the Oregon
Constitution, 	which 	the 	people 	added 	to 	the 	Oregon
Constitution by initiative in 2002, and which provides:
"It shall be unlawful to pay or receive money or other
thing of value based on the number of signatures obtained
on an initiative or referendum petition. Nothing herein pro-
hibits payment for signature gathering which is not based,
either directly or indirectly, on the number of signatures
obtained."
1 A referendum also may be ordered by the Legislature Assembly, in which
case no requirement for signatures of qualified voters applies. Or Const, Art IV,
§ 1(3)(c).

Cite as 347 Or 660 (2010) 	665
In addition, the Secretary of State (who is charged with the
responsibility of overseeing the initiative and referendum
process) has promulgated an extensive set of rules relating to
signature gathering, signature counting, and other parts of
the process. OAR ch 165, div 14.
Under 	the 	pertinent 	statutes 	and 	rules, 	the
Secretary of State currently cannot count any signature on
an initiative or referendum petition sheet (including the sig-
nature of a person who is, in fact, a "qualified voter," as that
term 	is 	used 	in 	Article 	IV, 	section 	1, 	of the 	Oregon
Constitution) if the petition sheet on which the signature
appears suffers from any of the following defects:
(1) 	The sheet is not verified by the person who cir-
culated it (ORS 250.042, OAR 165-014-0030(3)(c),
OAR 165-014-0270);
(2) 	The sheet was circulated for collection of signa-
tures by a paid circulator who was not registered as
such with the Secretary of State (ORS 250.048);
(3) 	The sheet was circulated during a period of
time in which the right to circulate it was suspended
for failure of a chief petitioner to provide certain sta-
tutorily required "accounts" (ORS 260.262(6)(b));
(4) 	The petition being circulated is not the same as
the version approved by the Secretary of State for
circulation (OAR 165-014-0030(3)(a));
(5) 	The sheets do not comply with the require-
ments of ORS 260.567 (prohibiting circulators from
filling in information for petition signers) (OAR 165-
014-0030(3)(c), OAR 165-014-0275(2)); or
(6) 	The sheet was circulated by a paid circulator
who is unable to produce an identification and reg-
istration badge issued by the Secretary of State
(OAR 165-014-0280(5)(c)).2
2 The foregoing list is not exhaustive, and we make no attempt to itemize the
additional provisions relating to the Secretary of State's authority over circulation
of initiative petition signature sheets found in HB 2005 (2009), which the legisla-
ture enacted at its last session. Or Laws 2009, ch 533.

666 	Caruthers v. Kroger
The foregoing statutes and rules are not the only
ones relating to qualifying a proposed initiative or referen-
dum for the ballot. Once a number of signatures has been
gathered, the proposed initiative or referendum may be
placed on the ballot if a sufficiently high percentage of them
is valid. Before that placement, however, it is the duty of the
Secretary of State to eliminate signatures and reject signa-
ture sheets that fail to meet statutory or rule requirements.
When that process is completed, the Secretary then deter-
mines whether there remain sufficient signatures to place
the measure on the ballot. That action by the Secretary of
State presently does not involve counting each signature
individually; instead, the Secretary uses a scientific sampling
method. See ORS 250.105(2); OAR 165-014-0030(5) - (16)
(stating rules for statistical sampling).
Although some of the effects oflnitiative Petition 43
(2010), should it be enacted by the people, are not clear, it is
clear that the proposed measure is intended to alter the sig-
nature gathering and sampling processes that we have
described. That conclusion is suggested by the phrase, "in
order to ensure the integrity of public officials in reviewing
signatures on petitions," in the first paragraph of the pro-
posed measure. And it follows ineluctably from the statement
in the proposed measure that provides:
"Every registered voter who has signed an initiative or
referendum petition * * * is guaranteed the right to have
his or her signature counted for purposes of determining
whether the initiative or referendum petition has obtained
enough signatures to qualify for submission to the voters.
No statute or rule may restrict this right."
To offer but one example, under present law, no signature on
a particular signature sheet may be considered if the person
who circulated the sheet does not verify it in the manner pro-
vided by law. ORS 250.042; OAR 165-014-0030(3)(b); OAR
165-014-0270. The proposed measure would overturn that
restriction by granting every registered voter who has signed
such a sheet a constitutional right to have his or her signa-
ture "counted" for the purpose stated in the proposed meas-
ure. With that understanding respecting the necessary scope
of the proposed measure in mind, we turn again to the

Cite as 347 Or 660 (2010) 	667
Attorney General's certified ballot title and to petitioner's
challenges to that title.
Every ballot title must contain a "caption of not more
than 15 words that reasonably identifies the subject matter"
of the measure. 	ORS 250.035(2)(a). Thus, the Attorney
General's caption for Initiative Petition 43 (2010) must "sub-
stantially comply" with that standard. See ORS 250.085(5)
(establishing that standard of judicial review of ballot titles).
For the convenience of the reader, we repeat the Attorney
General's caption here:
"Amends Constitution: 	Guarantees registered
voter right to have signature counted in determining
initiative/referendum qualification for ballot"
This court identifies the true "subject matter" of a proposed
measure for purposes of ORS 250.035(2)(a) by examining the
wording of the measure in light of the existing statutory and
constitutional context in which the measure, if adopted,
would be placed. See, e.g., Novick I Bosak v. Myers, 333 Or 18,
24, 36 P3d 464 (2001) (to that effect). Petitioner asserts that,
in this case, the Attorney General, instead of independently
attempting to identify the subject matter of the proposed
measure, has chosen simply to repeat the words of the pro-
posed measure in the caption. That choice, petitioner insists,
obscures the measure's actual subject. That subject, peti-
tioner states, is "preventing enforcement of anti-circulator
fraud laws."
Although we decline to approve petitioner's particu-
lar description of the subject of the proposed measure, we
agree with his assertion that the present caption does not
capture the true subject matter of Initiative Petition 43
(2010). As we have explained, the subject of the proposed
measure is perhaps best identified by noting the connection
between two separate parts of the proposed measure: The
second clause of the measure's introductory sentence states
that the proposed measure is to be added to Article IV, sec-
tion 4, of the Oregon Constitution, "in order to ensure the
integrity of public officials in reviewing signatures on peti-
tions." The way in which that integrity is to be "ensured" is
then found in the proposed measure's statement that "no

668 	Caruthers v. Kroger
statute or rule" may restrict the "right" of a qualified voter to
have the voter's signature "counted." From those two provi-
sions, it becomes clear that the subject of the measure is the
removal of impediments to that counting, whether those
impediments be statutory or rule-based. And that necessarily
means that some of the processes by which signatures pres-
ently are vetted-processes that can prevent the counting of
certain individual signatures-are to be set aside and that
the legislature is forbidden to enact substitutes for them. The
Attorney General's caption fails to identify this subject,
which is at the heart of the proposed measure. The Attorney
General's certified caption, therefore, does not substantially
comply with the requirements of ORS 250.035(2)(a). The bal-
lot title therefore must be referred to the Attorney General
for modification. ORS 250.085(8). 3
We note at the same time that it also is true, as peti-
tioner argues, that the Attorney General's caption suffers
from another defect. Petitioner argues that the Attorney
General's use in the caption of a phrase like "right to have
signature counted" unnecessarily introduces a "loaded term"
into the caption, one that is designed to create the impression
that certain classes of signatures arbitrarily are given no
weight in the initiative and referendum process. The phrase
is found in the measure itself. As petitioner points out, how-
ever, this court previously has been critical of using wording
drawn from a proposed measure in a caption ifthat wording
" 'is not neutral and might mislead voters into supporting the
proposal without understanding its true effects.' " Mabon v.
Myers, 332 Or 633, 638 n 2, 33 P3d 988 (2001), quoting Earls
v. Myers, 330 Or 171, 176, 999 P2d 1134 (2000). We agree
with petitioner that that same concern is pertinent here. On
referral, the Attorney General should select other words to
identify the proposed measure's subject.
ORS 250.035(2)(b) requires that a ballot title contain
"a simple and understandable statement of not more than
25 	words 	that 	describes 	the 	result" 	if the 	measure 	is
3 The Attorney General argues that petitioner is confusing an alleged effect of
the proposed measure with the measure's subject matter, while the focus of the cap-
tion is supposed to be on the latter. See, e.g., Kain v. Myers, 335 Or 228, 233, 64 P3d
1129 (2003) (focusing on that distinction). We think, however, that the two con-
cepts are the same for the purposes of this narrowly focused measure.

Cite as 347 Or 660 (2010) 	669
approved. We again set out the Attorney General's ''yes" vote
result statement for the proposed measure:
"Result of 'Yes' Vote: 	'Yes' vote requires every regis-
tered voter's signature on initiative/referendum petitions to
be counted in determining if sufficient number were col-
lected to qualify measure for ballot."
Petitioner argues that the Attorney General's "yes" vote
result statement suffers from the same defects as did the cap-
tion. We agree. The "yes" vote result statement must be
modified.
ORS 250.035(2)(c) requires that a ballot title contain
a "simple and understandable statement of not more than
25 words that describes the result" if the measure is rejected.
The Attorney General's "no" vote result statement provides:
"Result of'No'Vote: 	'No' vote retains laws regarding
acceptance, verification of signatures on initiative/referen-
dum petitions, including use of statistical sampling in
determining if sufficient number were collected."
Petitioner objects to this part of the Attorney General's cer-
tified ballot title for Initiative Petition 43 (2010) on different
grounds than those asserted concerning other parts of the
ballot title. He argues that the Attorney General's focus on
the "statistical sampling'' practice used by the Secretary of
State in counting petition signatures is too narrow and selec-
tive in at least two ways. First, it ignores a host of other ways
in which the Secretary of State presently tests the validity of
signatures on initiative petitions, including determining
whether the petition circulator was authorized to circulate
petitions, whether the circulator followed the correct proce-
dures, and the like. Second, it assumes that the proposed
measure, if adopted, necessarily would deny the Secretary of
State the right to use statistical sampling methods to vali-
date (and count) signatures. Again, we agree. On referral, the
Attorney General should, consistent with the word number
limitation applicable to this part of the ballot title, avoid
singling out and concentrating on any particular way by
which the Secretary of State limits the eligibility of signa-
tures to be counted, and avoid making debatable assump-
tions 	respecting 	the 	effect 	of passage 	of the 	proposed
measure.

670
The 	Attorney 	General 	certified 	the 	following
summary:
"Summary: 	Amends constitution. Initiative/referen-
dum petitions qualify for submission to voters only when
they are signed by sufficient number of qualified voters;
exact number depends on type of measure. Currently, laws
and administrative rules establish requirements for signa-
ture collection and verification to prevent fraud, forgery, or
improper signature gathering. Instead of counting each sig-
nature submitted, elections officials use statistical sam-
pling of signatures from valid petition forms to determine if
sufficient number of qualified voter signatures were col-
lected. Measure guarantees registered voters right to have
their signatures counted in determining if sufficient num-
ber of signatures were submitted to qualify measure
for ballot; prohibits any statute or administrative rule
from restricting this right; may invalidate existing consti-
tutional provisions, statutes, administrative rules regard-
ing initiative/referendum 	petition requirements. 	Other
provisions."
Under ORS 250.035(2)(d), a ballot title must contain
a 	"concise 	and 	impartial 	statement 	of not 	more 	than
125 words summarizing the state measure and its major
effect." The function of that summary is to provide voters
with enough information to understand what will happen if
the measure is approved, i.e., to advise voters of the "breadth"
of a measure's impact. See Fred Meyer, Inc. v. Roberts, 308 Or
169, 175, 777 P2d 406 (1989) (stating that principle). Peti-
tioner attacks the summary on several grounds. Petitioner
argues that the summary suffers from some of the same
defects from which the caption and "yes" vote result state-
ment suffer. We agree that those same defects are present in
the summary. We hold that the Attorney General's summary
does not comply substantially with the statutory standards
established for such summaries. 4
Based on the foregoing analysis of the issues pre-
sented by the present ballot title challenge, we hold that the
caption, the "yes" vote result statement, the "no" vote result
statement, and the summary certified by the Attorney
We reject, >n>ithout discussion, an alternative argument that petitioner offers
in connection with the summary.

Cite as 34 7 Or 660 	671
General in his ballot title for Initiative Petition 43 (2010) do
not substantially comply with statutory requirements. The
matter is referred to the Attorney General for modification of
the certified ballot title.
The ballot title is referred to the Attorney General
for modification.