S055743, Opinion — Chamberlain v. Myers (S055743)

OCR transcription for search; preserved printed pages are authoritative

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 23, 2008 (345 Or 160)

Tom CHAMBERLAIN
& Barbara Byrd,
Petitioners,
U.

Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055743)
188 P3d 240

CJS, Statutes § 131.

# 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.

<!-- PageBreak -->

<!-- PageHeader="Cite as 344 Or 612 (2008)" -->

KISTLER, J.

Ballot title referred to the Attorney General for
modification.

<!-- PageBreak -->

<!-- PageHeader="Chamberlain v. Myers (S055743)" -->

KISTLER, J.

Petitioners seek review of the Attorney General's
certified ballot title for Initiative Petition 23 (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 23, 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 within the four years pre-
vious to the effective date of this section a majority of the
subject employees have voted in a secret ballot election to
be represented by the union. Due to the serious potential for
coercion and undue pressure, an employee's card check
authorization shall not be deemed a valid vote for
unionization."

The Attorney General certified the following ballot title for
Initiative Petition 23:

"UNION REPRESENTATION, CONTRIBUTIONS TO
REPRESENTATION COSTS NOT REQUIRED UNLESS
ELECTION HELD WITHIN LAST FOUR YEARS

"RESULT OF 'YES' VOTE: 'Yes' vote eliminates any
requirement that union represent an employee or employee
share representation costs, unless secret-ballot election
authorized union within past four years.

"RESULT OF 'NO' VOTE: 'No' vote retains existing
law: once employees choose union (by election or written
authorization procedure), union represents all employees;
contract may require sharing representation costs.

"SUMMARY: Under current law, employees may
choose union representation by majority of votes cast in
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

<!-- PageBreak -->

<!-- PageHeader="Cite as 344 Or 612 (2008)" -->

employees, regardless of union membership. A collective
bargaining agreement may require all employees to con-
tribute 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 within the four years before this measure's
effective date. Employee's 'card check authorization' (unde-
fined) is not a valid vote. Other provisions."

Petitioners challenge the caption, the "yes" vote result state-
ment, and the summary.

The proposed measures in this case and in
Chamberlain v. Myers (S055744), 344 Or 605, 189 P3d 6
(2008), differ in one respect.1 Although the proposed meas-
ures are substantially the same, they differed sufficiently to
persuade the Attorney General to certify substantially differ-
ent captions and "yes" vote result statements.2 Because those
parts of the ballot titles and petitioners' corresponding chal-
lenges to them differ, we cannot rely completely on our deci-
sion in Chamberlain (S055744) to resolve petitioners' chal-
lenges in this case.

We begin with petitioners' challenge to the caption.
See ORS 250.035(2)(a) (requiring a 15-word caption that
reasonably identifies the subject matter of the measure).
Petitioners do not argue that the words that the Attorney
General used in the caption are inaccurate or otherwise fail
to identify the measure's subject matter. Rather, they argue
that the caption is deficient only because it does not put the
word "representation" in quotation marks. Petitioners reason
that quotation marks are necessary to signal that federal and
state laws will continue to require unions to represent all the

1 The proposed measure in this case provides:

"[n]o employee shall be required to pay money to a union or be represented by
a union unless within the four years previous to the effective date of this section
a majority of the subject employees have voted in a secret ballot election to be
represented by the union."

(Emphasis added.) The proposed measure in Chamberlain (S055744) omits the
italicized wording but is otherwise identical.

2 The summaries for the two measures appear substantially the same, with
one exception that we note below.

<!-- PageBreak -->

<!-- PageHeader="Chamberlain v. Myers (S055743)" -->

employees in a bargaining unit even if the proposed measure
passes.

We considered the premise of petitioners' argument
in Caruthers v. Myers, 344 Or 596, 189 P3d 1 (2008), and
agreed that the proposed measure would have no effect on a
private sector union's federal obligation to represent all the
employees in a bargaining unit and that its effect on a public
sector union's comparable state obligation was unclear. The
narrow question that petitioners' argument in this case
raises, however, is whether putting quotation marks around
the word "representation" is required to communicate that
limitation. We do not think that it is.

This court has required the Attorney General to put
a term used in a ballot title in quotation marks when that
term is used in the proposed measure and its meaning is
ambiguous. See Wolf v. Myers, 343 Or 494, 501, 173 P3d 812
(2007) (so explaining). In that context, quotation marks serve
to highlight "technical terms expected to be unfamiliar to the
reader," as well as words used in an unusual or uncertain
sense. See Webster's Third New Int'l Dictionary 1868 (una-
bridged ed 2002) (defining "quotation mark"). Accordingly,
this court has required the use of quotation marks around a
term when there are multiple accepted meanings for the
term and the measure clarifies which of those accepted
meanings is meant, Tauman v. Myers, 343 Or 299, 303, 170
P3d 556 (2007), as well as when the term is not defined in the
measure and has no "plain meaning," Morgan v. Myers, 342
Or 165, 168, 149 P3d 1160 (2006).

By contrast, this court has not required the use of
quotation marks to indicate that the effect of a proposed
measure is limited because it either conflicts or may conflict
with settled law. That use would be inconsistent with the
common understanding of what quotation marks do and thus
be more likely to enhance voter confusion than reduce it.
Putting the word "representation" in quotation marks, for
instance, would likely lead voters to conclude that the meas-
ure, if enacted, would relieve unions of the obligation to take
a certain action with regard to certain employees that is sim-
ilar to, but not the same as, representation. It would not be
likely to lead voters to conclude that the measure, if enacted,

<!-- PageBreak -->

<!-- PageHeader="Cite as 344 Or 612 (2008)" -->

would not relieve unions of their obligation to represent all
the employees in the bargaining unit. Yet, it is the latter con-
cern that gives rise to petitioners' objection to the ballot title.
Given the limited nature of petitioners' objection to the cap-
tion, we cannot say that the caption does not substantially
comply with the Attorney General's obligation to identify the
subject matter of the ballot title.3

Petitioners raise two challenges to the "yes" vote
result statement. 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").
They argue that telling voters that the proposed measure, if
enacted, would "eliminate[ ] any requirement that [a] union
represent an employee" overstates the measure's effect. We
agree for the reasons stated in Caruthers, 344 Or at 603-04.
They also argue that the "yes" vote result statement should
tell voters that the proposed measure, if enacted, would effect
a significant change in secret-ballot elections by replacing the
current simple majority standard for winning elections with
an absolute majority standard. We agree for the reasons
stated in Chamberlain (S055744), 344 Or at 610.

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"). They contend that the sum-
mary "fails to make clear that [the] proposed measure would
have different effects in the public and private sector." They
also argue that it fails to effectively highlight the change that
the proposed measure would impose on the type of majority
necessary to win a union representation election. The sum-
mary in this case is substantially the same as the summary
in Chamberlain (S055744), and we agree with both of peti-
tioners' challenges to the summary for the reasons stated in
that opinion.4 Accordingly, we refer the "yes" vote result

3 Although the Attorney General is not required to put the word "representa-
tion" in quotation marks, on referral, he may modify the caption in other ways to
meet petitioners' concern if he chooses. See Sizemore / Terhune v. Myers, 342 Or
578, 591, 157 P3d 188 (2007) (stating proposition).

4 The summary in this case differs from the summary in Chamberlain
(S055744) in one respect. The summary in this case states that, under the meas-
ure, no employee representation may be required of a union "unless a majority of

<!-- PageBreak -->

<!-- PageHeader="Chamberlain v. Myers (S055743)" -->

statement and the summary to the Attorney General for
modification.

Ballot title referred to the Attorney General for
modification.

'subject employees' (not defined) have voted in a secret-ballot election within the
four years before this measure's effective date." The measure, however, does not
require merely that a majority of "subject employees" vote. It requires that a major-
ity vote "to be represented by the union." Although petitioners have not objected to
that aspect of the summary, the Attorney General is free on referral to modify the
summary to conform to the measure. See Sizemore / Terhune, 342 Or at 591 (stating
proposition ).