S057678, Opinion — Caruthers v. Kroger

63
On petitioner's objections to modified ballot title filed February 19, considered and
under advisement on February 25, Attorney General's certified ballot title referred
to Attorney General for further modification March 18, ballot title certified
April 29, 2010 (348 Or 282)
Jerry CARUTHERS,
Petitioner,
u.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057678)
228P3d 549

64
CJS, Statutes§ 131.
En Banc
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the objections for petitioner.
Douglas 	F. 	Zier, 	Senior Assistant Attorney General,
Salem, waived appearance for respondent.
GILLETTE, J.
The Attorney General's certified ballot title is referred to
the Attorney General for further modification.

Cite as 348 	65
GILLETIE, J.
This ballot title review proceeding involving the bal-
lot title for Initiative Petition 43 (2010) is before us for a sec-
ond time. In the first iteration, Caruthers v. Kroger, 347 Or
660, 227 P3d 723 (2010), this court held that the Attorney
General's certified ballot title was deficient in each of its
parts-the caption, the "yes" and "no" result statements, and
the summary. We referred the matter back to the Attorney
General to prepare a modified ballot title. Id. at 671. See ORS
250.085(8) (providing for that procedure).
In response to our referral, the Attorney General
prepared and certified to this court a modified ballot title. See
ORS 250.085(9) (providing procedure). Petitioner has filed
objections to the Attorney General's modified ballot title,
once again asserting that each part of the Attorney General's
certified ballot title fails to comply substantially with the
requirements of ORS 250.035. See ORS 250.085(5) (providing
that standard of review); ORS 250.085(9) (providing proce-
dure for objecting to modified ballot title). For the reasons set
out below, we once again agree with petitioner and again
refer the ballot title to the Attorney General for further
modification.
We think that the best way to understand peti-
tioner's present objections to the Attorney General's modified
ballot title is by (1) setting out the proposed measure,
(2) summarizing our criticism of the Attorney General's pre-
viously certified ballot title, (3) setting out the Attorney
General's modified ballot title that was prepared in response
to our earlier opinion, and then (4) considering petitioner's
objections. To that end, we begin by setting out the proposed
constitutional amendment in full:
"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

66 	Caruthers v.
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."
Respecting the Attorney General's former certified
ballot title, this court explained,
"the subject of the proposed measure is perhaps best iden-
tified by noting the connection between two separate parts
of the proposed measure: The second clause of the meas-
ure's introductory sentence states that the proposed meas-
ure is to be added to Article IV, section 4, of the Oregon
Constitution, 'in order to ensure the integrity of public offi-
cials in reviewing signatures on petitions.' The way in
which that integrity is to be 'ensured' is then found in the
proposed measure's statement that 'no statute or rule' may
restrict the 'right' of a qualified voter to have the voter's sig-
nature 'counted.' From those two provisions, 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 presently are
vetted-processes that can prevent the counting of certain
individual signatures-are to be set aside and that the leg-
islature 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."
Caruthers, 347 Or at 667-68 (emphasis in original). We went
on to add, with respect to the result statements and the sum-
mary, that the ballot title inappropriately focused on a proc-
ess called "sampling," by which the Secretary of State pro-
jected from 	a 	sample of appropriately submitted, 	valid
petition signatures the likely total number of valid signa-
tures among the entire number of signatures submitted in
support of initiating or referring a measure. The court stated:
"On referral, the Attorney General should, consistent with
the word number limitation applicable to th[ese] part[s] of
the ballot title, avoid singling out and concentrating on any
particular way by which the Secretary of State limits the
eligibility of signatures to be counted, and avoid making
debatable assumptions respecting the effect of passage of
the proposed measure."
Id. at 669.

Cite as 348 Or 63 	67
On referral, the Attorney General revised his initial
ballot title and certified the following modified ballot title in
its place:
"Amends Constitution: 	Prohibits laws restricting
count of registered voters' signatures to determine
initiative/referendum qualification for ballot
"Result of 'Yes' vote: 	'Yes' vote invalidates current
law and prohibits future laws restricting the counting of
individual registered voters' signatures to determine if
initiative/referendum qualifies for ballot.
"Result of 'No' vote: 	'No' vote retains existing laws,
regulations regarding how individual registered voters' sig-
natures on initiative/referendum petitions are counted to
determine if measure qualifies for ballot.
"Summary: 	Amends constitution. Initiative and ref~
erendum petitions qualify for ballot only when signed by
sufficient number of qualified registered voters; the exact
number of signatures required for ballot qualification
depends on the particular type of measure. Currently, con-
stitutional provisions, statutes, and administrative rules
establish requirements for signature collection and verifi-
cation to prevent fraud, forgery, or improper signature
gathering and establish procedures for determining how
signatures on petitions are counted. Measure invalidates
existing laws restricting the counting of individual regis-
tered voters' signatures to determine whether a sufficient
number of valid signatures have been collected on initia-
tive/referendum petitions to qualify them for the ballot;
prohibits any future statute or administrative rule from
restricting the counting of all registered voters' signatures
on initiative/referendum petitions. Other provisions."
We turn to petitioner's objections to that modified ballot title.
1. 	Modified Caption
As 	noted, the modified caption in the Attorney
General's certified ballot title provides:
"Amends Constitution: 	Prohibits laws restricting
count of registered voters' signatures to determine
initiative/referendum qualification for ballot"

Petitioner asserts that the Attorney General's use of the
phrase "laws restricting count" (petitioner actually mis-
quotes the phrase as "law restricting count") inappropriately
focuses on counting votes, when the true subject of the pro-
posed measure reaches beyond "counting" to touch a variety
of statutes and rules that are designed to control the initia-
tive and referendum process as a whole, with the result
(invalidating signatures) being a consequence of violations of
certain of those statutes and rules.
Petitioner is correct. This court did state in its ear-
lier opinion that the proposed measure would remove some
(not all) of the impediments to counting signatures, but spe-
cifically noted that the manner in which that would be
accomplished was that
"some of the processes by which signatures presently are
vetted-processes that can prevent the counting of certain
individual signatures-are to be set aside and * * * the leg-
islature is forbidden to enact substitutes for them. The
Attorney General's caption fails to identify this subject,
which is at the heart of the measure."
Caruthers, 347 Or at 668. As further clarification, the opinion
included examples of statutes and rules that would be
affected by enactment of the proposed measure. Id. at 665.
Most such statutes and rules focus on practices and proce-
dures that the legislature and the Secretary of State have
considered desirable to ensure the legitimacy of the signa-
ture-gathering process and to regulate the activities of those
who gather the signatures; few (if any) have as their princi-
pal focus or purpose the disqualification of signatures. Thus,
as our previous opinion indicated (and as petitioner now
argues), the subject of the proposed measure was the elimi-
nation of many existing controls on the present signature col-
lection and verification process, together with a prohibition
on creating substitutes for those controls. The Attorney
General's caption still does not capture that subject. It must.
In failing to do so, the caption does not substantially comply
with ORS 250.035(2)(a) (requiring that a certified ballot title
contain a caption that "reasonably identifies the subject mat-
ter of the * * * measure"). The ballot title therefore must be
referred to the Attorney General for modification. See ORS
250.085(8) (ballot title failing to comply substantially with

Cite as 348 Or 63 	69
requirements of ORS 250.035 shall be referred to Attorney
General for modification).
We recognize that the ballot title modification proc-
ess must be carried out very expeditiously-a modified ballot
title must be certified by the Attorney General within five
business days of referral from this court, ORS 250.085(9)-
and we do not wish to "hide the ball." We therefore suggest
(without in any sense requiring it) that a caption phrased in
some way akin to the following meets the requirements of
ORS 250.035(2)(a):
"Amends 	Constitution: 	Prohibits 	disqualification
of 	initiative/referendum 	signatures 	even 	when
obtained in violation of election laws"
2. 	Modified ''Yes" and "No" Result Statements
Once again, for the convenience of the reader, we set
out the Attorney General's modified "yes" and "no" result
statements:
"Result of 'Yes' vote: 	'Yes' vote invalidates current
law and prohibits future laws restricting the counting of
individual registered voters' signatures to determine if ini-
tiative/referendum qualifies for ballot.
"Result of 'No' vote: 	'No' vote retains existing laws,
regulations regarding how individual registered voters' sig-
natures on initiative/referendum petitions are counted to
determine if measure qualifies for ballot."
Petitioner's objections to both of those parts of the
Attorney General's modified ballot title is the same as that
made to the caption: As written, both result statements are
under-inclusive in that they speak of "counting" signatures
instead of focusing on the larger effect of the proposed meas-
ure, if it were adopted. Again, we agree. The statements do
not substantially comply with the requirements of ORS
250.035(2)(b) and (c). They must be modified in a manner
that is consistent with our comments concerning the caption.
3. 	Summary
Again for the convenience of the reader, we set out
the Attorney General's modified summary:

70
"Summary: 	Amends constitution. Initiative and ref-
erendum petitions qualify for ballot only when signed by
sufficient number of qualified registered voters; the exact
number of signatures required for ballot qualification
depends on the particular type of measure. Currently, con-
stitutional provisions, statutes, and administrative rules
establish requirements for signature collection and verifi-
cation to prevent fraud, forgery, or improper signature
gathering and establish procedures for determining how
signatures on petitions are counted. Measure invalidates
existing laws restricting the counting of individual regis-
tered voters' signatures to determine whether a sufficient
number of valid signatures have been collected on initia-
tive/referendum petitions to qualify them for the ballot;
prohibits any future statute or administrative rule from
restricting the counting of all registered voters' signatures
on initiative/referendum petitions. Other provisions."
Petitioner agrees that the summary's description of
current law is correct, but he asserts that the discussion of
what the proposed initiative measure would do if adopted is,
once again, too narrowly focused, for the reasons already dis-
cussed. Again, we agree. The summary as written does not
substantially 	comply 	with 	the 	requirements 	of 	ORS
250.035(2)(d). It must be further modified in a manner con-
sistent with our discussion of the caption and the result
statements.
The 	Attorney 	General's 	certified 	ballot 	title 	is
referred to the Attorney General for further modification.