S055425, Opinion — Rogers v. Myers

2 19
On petition to review ballot title filed October 29, considered and under advisement
on December 5, 2007, ballot title referred to Attorney General for modification
February 28, dismissed as moot March 21, 2008 (344 Or 392)
David ROGERS,
Petitioner,
v.
Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055425)
1 79 P3d 627

220 Rogers v. Myers
CJS, Statutes § 131.
En Banc
Margaret S. Olney, of Smith, Diamond & Olney,
Portland, submitted the brief for petitioner.
Paul L. Smith, Assistant Attorney-in-Charge, Salem, sub
mitted the brief for respondent. With him on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.
DURHAM, J.
Ballot title referred to Attorney General for modification.
Balmer, J., filed a dissenting opinion, in which Kistler and
Linder, JJ. , joined.

Cite 221
DURHAM, J.
Petitioner challenges the ballot title for Initiative
Petition 133 (2008). ORS 250.085(5) (describing procedure for
challenging Attorney General's certified ballot title). We
agree with parts of petitioner's challenge and, therefore, refer
the ballot title to the Attorney General for modification.
Initiative Petition 133 (2008), if adopted, would
require the Attorney General to assist counties and cities in
the "establish[ingJ and strengthening of Meth Strike Forces"
at city, county, or regional levels, and to assign lawyers from
the Department of Justice to assist the strike forces in pro
moting the prosecution of drug-related crimes in Oregon. The
proposed measure would prohibit registered sex offenders
from holding elective office. The proposed measure would
establish a Commission on Domestic Violence, Child Abuse,
and Sex Crimes, including two coordinated task forces, to
study and make recommendations on those topics to the
Governor and the Legislative Assembly. The proposed meas
ure would create a tax credit for certain taxpayer contribu
tions to "Meth Strike Forces," as mentioned in the measure,
or to drug prevention or treatment programs. The proposed
measure would require the Legislative Assembly to provide
the resources necessary to staff the Oregon State Police at
designated minimum staffing levels. Finally, the proposed
measure would create a program permitting retired police
officers to provide volunteer public safety services in
exchange for health insurance.
The Attorney General certified the following ballot
title for the proposed measure:
"MODIFIES LAWS RELATING TO LAW ENFORCE
MENT, CRIMINAL SANCTIONS, PROSECUTIONS,
CONTROLLED SUBSTANCES INVESTIGATIONS;
CREATES TAX CREDIT
"RESULT OF 'YES' VOTE: 'Yes' vote modifies laws
relating to law enforcement, criminal sanctions, prosecu
tions, and controlled substances investigations; creates
police staffing requirements, tax credit (thereby reducing
tax revenues).

"RESULT OF 'NO' VOTE: 'No' vote retains, without
modification, current laws relating to law enforcement,
criminal sanctions, prosecutions, controlled substances
investigations, Oregon State Police staffing requirement,
and tax credits.
"SUMMARY: Currently, Oregon laws address law
enforcement, criminal sanctions, prosecutions, and tax
credits. Measure prohibits registered sex offenders from
elective office. Requires Attorney General to assist counties'
controlled substances criminal investigations and prosecu
tions and to provide at least ten attorneys to this effort; cre
ates tax credit for contributions to drug investigation, pros
ecution, and treatment programs (thereby reducing state
revenues). Establishes Commission on Domestic Violence,
Child Abuse, and Sex Crimes to make recommendations to
the legislature. Measure requires legislature to incremen
tally ensure specified minimum Oregon State Police staff
ing level of one officer per 5 ,000 residents by May 1, 2013.
Establishes program to allow retired peace officers to vol
unteer at public agencies in exchange for health insurance.
Makes Department of Corrections officers equivalent to
peace officers. Other provisions."
Petitioner challenges the caption, the "yes" vote
result statement, and the summary in the Attorney General's
ballot title. A "caption" is a statement of "not more than 15
words that reasonably identifies the subject matter of the
state measure." ORS 250.035(2)(a). To determine the subject
matter of a proposed measure, we first consider the text and
context of the measure. Earls u. Myers, 330 Or 171, 175-76,
999 P2d 1 134 (2000). We then examine "the changes, if any,
that the proposed measure would enact in the context of
existing law." Kain / Waller u. Myers, 337 Or 36, 41, 93 P3d 62
(2004). Finally, we "examine the words of the caption to
determine whether they reasonably identify the proposed
measure's subject matter." Id.
"We make that inquiry, in part, to insure that the ballot
title does not misstate, even by implication, the law that the
proposal would enact, and 'thereby create a spurious argu
ment to support the measure's passage.' Dale v. Kulongoski ,
3 2 1 Or 108, 1 13, 894 P2d 462 ( 1995)."
Novick i Bosak u . Myers, 333 Or 18, 24, 36 P3d 464 (2001).
The caption must not understate or overstate the scope ofthe

as 344 0r 223
legal changes that the proposed measure would enact. Kain I
Waller, 337 Or at 40.
Petitioner contends that the caption is not adequate,
because it does not alert voters to the proposal's creation of a
commission and task forces or their true functions. Instead,
the caption states that the proposal "modifies laws relating to
law enforcement, criminal sanctions, prosecutions , [and] con
trolled substances investigations * * * ." According to peti
tioner, that phrasing inaccurately tells voters that the pro
posed measure itself will alter substantive Oregon laws in
those areas, when, by contrast, the commission and the task
forces mentioned in the proposal will only study and recom
mend possible substantive legislative changes in the future.
The Attorney General acknowledges that the pro
posed measure would establish the commission and task
forces, as described above, to recommend legislation regard
ing domestic violence, child abuse, and sex crimes. The Attor
ney General contends that the caption is accurate because
"the creation of the commission would constitute a modifica
tion in Oregon law regarding either 'criminal sanctions' or
'law enforcement'-both of which are included in the
caption."
This court has held that, because the ballot title cap
tion is the "cornerstone" of the ballot title, it must identify the
proposed measure's subject matter in terms that will "inform
potential petition signers and voters of the sweep of the
measure."1 Terhune u. Myers, 342 Or 475, 479, 154 P3d 1284
(2007). To carry out its function, a caption must state "the
actual major effect of the proposed measure (,] " if possible,
within the applicable word limit provided in ORS
250.035(2)(a). Id. at 480.
In the present case, the Attorney General's caption
uses what he admits is "broad phraseology" to tell voters that
the proposed measure "modifies laws relating to" several
legal topics. The problem that we identi(y with that approach
1 The information function of the caption and result statements, ORS
250.035(2)(aJ-(c), takes on particular importance in light of ORS 254.175(2), which,
since 1995, has authorized county clerks to print ballots displaying the caption and
result statements, but not the summary, of the certified ballot title for an initiated
or referred state measure. Or Laws 1995, ch 534, § la.

224 Rogers v. Myers
does not concern its literal accuracy. The sweep of the phrase
"modifies laws relating to" a stated legal topic is broad
enough to refer, at least in a semantic sense, to virtually
every amendment of any kind concerning that legal topic.
The problem, instead, is that the caption's phrase
ology is so broad that it fails to disclose the subject matter of
the proposed measure in terms that give notice to the voters
of the principal substantive choice or choices that the meas
ure presents. A principal change that the proposed measure
would enact in the context of existing law, i.e. , creation of a
commission, including task forces, to recommend legislation
in several areas of the criminal law, can be described to vot
ers accurately within the applicable word limit. The particu
lar wording selected by the Attorney General does not
reasonably identify that change.
This court faced a similar problem in Terhune. In
that case, this court applied the mode of analysis identified in
our cases and determined that the Attorney General's refer
ence in the ballot title caption to a "tax credit for educational
purposes" was insufficient to disclose the significant change
that the proposed measure would enact:
"In the present case, petitioners argue-and we agree
that the principal effect of the proposed measure (among
other important effects) will be to allow tax credits for paro
chial and other private school tuition. * * * Such a public
policy choice-whatever its merits-would represent a very
significant change in Oregon law, both by reducing the gen
eral fund by the collective total of the tax credits and by
facilitating parents' desire to enroll their children, with the
aid of public tax dollars, in parochial and other private
schools. Those facts make the subject matter ofthe measure
not merely a 'tax credit.' It is, instead, a tax credit aimed
most specifically at lessening the tuition burden of those
who choose to send their children to parochial or other pri
vate schools.
"The Attorney General's caption blandly refers to a 'tax
credit for educational expenses.' That may be accurate, but
it hardly can be said to note, much less highlight, the actual
major effect of the proposed measure. The caption must

Cite as 344 Or 219 (2008) 225
reflect specifically the proposed tuition offset aspect, as dis
cussed above, if that is possible within the 15-word limit
provided in ORS 250.035(2)(a)."
Id. at 4 79-80. The court referred the ballot title to the Attor
ney General for modification.
The Attorney General argues that he chose the
broad phrasing in the caption to "encompass [ ] all aspects of
the proposed measure," and that using greater specificity
would have forced him "not to address other aspects of the
subject matter of the proposed measure."
The difficulty with that argument is twofold. First,
the list of topics in the caption to which it refers ("law enforce
ment, criminal sanctions, prosecutions, controlled sub
stances investigations") fails to disclose any actual major
effect or other subject matter of the proposed measure. Those
terms all follow the phrase "modifies laws relating to" and,
consequently, appear in the caption as free-floating subjects
oflegal amendment, the nature of which is not described. It is
not correct that the Attorney General had to omit the subject
matter of the proposed measure that we have identified
above in order to disclose or describe other aspects of the
measure's subject matter.
Second, the nonspecific nature of the Attorney
General's caption is misleading. The parties agree, as do we,
that the role of the commission that the measure would cre
ate is to gather information and develop recommendations for
legislation, and to submit its recommendations to the Legis
lative Assembly. The commission itself has no lawmaking
authority. However, the caption, as presently phrased, most
reasonably suggests that the measure's subject matter con
sists of undisclosed substantive changes regarding each of
the four listed areas of the law. In our view, a voter, after
examining the current caption, would be surprised to learn
that the measure would create a commission, which the cap
tion does not mention, with authority not to modify any law,
but only to recommend legal changes that the Legislative
Assembly might never consider, much less enact.
In Hunnicutt v. Myers, 342 Or 491 , 155 P3d 870
(2007), this court determined that the Attorney General's

caption did not disclose the full impact of the legal changes
that the proposed measure would enact. The court decided
that the undisclosed legal consequence was a significant part
of the measure and that the failure of the caption to mention
it "renders the caption underinclusive and thus inaccurate."
Hunnicutt, 342 Or at 495. The court required the Attorney
General to modify the caption to disclose the omitted effect of
the measure. Id.
We conclude from the foregoing that the Attorney
General's caption does not comply substantially with the
requirements in ORS 250.03 5(2)(a). Accordingly, we will
refer the ballot title to the Attorney General for modification
of the caption.
Petitioner also challenges the Attorney General's
"yes" vote result statement for the same reason discussed
above regarding the caption. A "yes" vote result statement
must describe, in 25 words, "the result ifthe state measure is
approved." ORS 250.035(2)(b).
The caption and the "yes" vote result statement use
identical terms to describe the legal modifications that the
proposed measure would enact. Thus, for the reasons already
discussed, the "yes" vote result statement fails to reasonably
identify the result if the measure is approved. Because the
"yes" vote result statement does not comply substantially
with statutory requirements, it, too, should be modified on
referral to the Attorney General. 2
Finally, petitioner challenges the Attorney General's
summary on the ground that the proposed measure creates
spending mandates without providing any replacement rev
enue, thus arguably depriving other public services of needed
2 We have addressed the arguments that the petition and the Attorney
General's answering memorandum have raised. ORAP 1 L30(4)(b) (petition "[s]hall
include the reason the ballot title does not substantially comply with the require
ments of ORS 250.035 * * *"); ORAP 1 1 .3 0(7) ("* * * The answering memorandum
may set forth concisely the reasons why the Attorney General believes the ballot
title filed with the Secretary of State substantially complies with the requirements
of ORS 250.035 * * *."). The dissent raises additional arguments supporting the
Attorney General's position. We decline to address those additional arguments.

Cite as 344 Or 219
revenue. We conclude that the summary complies substan
tially with the requirements in ORS 250.035(2)(d). The sum
mary contains a brief description of the tax credit that the
measure would enact. The following phrase appears in
parentheses after that description: "(thereby reducing state
revenues)." In view of the numerous aspects of the proposed
measure that the summary must address, we conclude that
that parenthetical phrase adequately discloses that major
effect of the measure.
Ballot title referred to Attorney General for
modification.
BALMER, J., dissenting.
I respectfully dissent. I would certify the Attorney
General's ballot title for two reasons. First, in my view, the
Attorney General's ballot title for Initiative Petition 133 sub
stantially complies with the statutory requirements for a bal
lot title. See ORS 250.085(5) (stating "substantial compli
ance" test). Second, this court earlier certified the Attorney
General's ballot title for another measure, Initiative Petition
104, that is similar to the measure at issue here. The Attor
ney General's ballot titles for the two measures also are sim
ilar, as are petitioner's grounds for challenging the ballot
titles. Neither petitioner nor the majority suggests any basis
to distinguish this case from the earlier case, and I am aware
of none. It follows that we should certify the ballot title in this
case. I turn to a brief discussion of those two grounds that
lead me to conclude that the Attorney General's ballot title
should be certified.
A ballot title caption must "reasonably identifl.y]" the
proposed measure's "subject matter!' ORS 250.035(2)(a). The
certified caption reads:
"MODIFIES LAWS RELATING TO LAW ENFORCE
MENT, CRIMINAL SANCTIONS, PROSECUTIONS,
CONTROLLED SUBSTANCES INVESTIGATIONS;
CREATES TAX CREDIT"
Neither petitioner nor the maj ority identifies any
thing that is inaccurate in the certified caption. Rather, peti
tioner argues that the caption "fails to adequately capture all

228 Rogers v . Myers
of the disparate aspects" of the initiative, including the crea
tion of "task forces." The maj ority agrees in part, asserting
that the phrase "modifies laws relating to" in the caption "is
so broad that it fails to disclose the subj ect matter of the pro
posed measure in terms that give notice to the voters of the
principal substantive choice or choices that the measure
presents." 344 Or at 224. In particular, the maj ority asserts
that " [a] principal change" that the proposed measure would
enact is the "creation of a commission, including task forces,
to recommend legislation in several areas of the criminal
law[.]" Id. at 224. The majority states that that change can be
described within the applicable word limit. The maj ority also
argues, somewhat inconsistently, that the caption will mis
lead voters by making them think that the measure makes
"substantive changes," although changes recommended by
the commission and task forces may not be enacted.
In my view, the creation of a new commission and
associated task forces with the specific charge to make rec
ommendations to reduce "incidences of domestic violence,
child abuse, and sex crimes" is captured by the phrase "mod
ifies laws relating to law enforcement, criminal sanctions,
prosecutions * * * ." Moreover, the Attorney General's use of
somewhat general wording in the certified caption also
allows the caption to encompass other changes that would be
made by the proposed measure, including an additional sanc
tion for sex offenders, the "Meth Strike Force" initiative, the
new requirements regarding force levels for the state police,
and the program to encourage retired peace officers to con
tinue active service. The specific aspects of the measure,
including the task forces and the changes just mentioned, are
then identified in the "yes" vote and "no" vote result state
ments or in the summary.
I do not share the majority's certainty that the cap
tion could be worded in a way that would specifically refer to
the commission and the task forces and still retain words
that adequately describe the other changes identified above,
while remaining within the word limit. Morever, given the
specific changes that passage of the proposed measure itself
would make in law enforcement, prosecution, and sanctions,
it strikes me that the creation of a commission and task
forces to make future recommendations to the legislature is

Cite as 344 Or 2 19 (2008) 229
less of a "principal substantive choice" for the voters than the
other provisions of the measure. Whether I am correct on
that score or not, however, the Attorney General made a per
missible choice when he stated in the caption that the meas
ure "modifies laws relating to law enforcement, criminal
sanctions, prosecutions," and then expanded on those modi
fications in the other parts of the ballot title. The Attorney
General often faces the problem ofidentifying the subject of a
proposed measure that makes multiple changes in the law,
and we have endorsed the approach that he took here:
"This court has explained that the function of a ballot
title caption is to identify generally the thread that con
nects a ballot measure's various provisions, rather than
'focusing on one or more of the most significant constituent
parts.' Rooney v. Kulongoski, 322 Or 77, 85, 902 P2d 1 177
( 1995). A caption that does not list multiple parts of an ini
tiative measure nonetheless may comply substantially with
the statutory standard, in the absence of a showing that
unnecessary words have been inserted into the caption and
that additional ideas could be communicated to the voters
by replacing those unnecessary words. Crumpton v.
Keisling, 3 17 Or 322, 325-26, 855 P2d 1 107 ( 1993)."
Sizemore v. Myers, 326 Or 220, 225-26, 953 P2d 360 ( 1997).
Here, the Attorney General "identif1ied] generally
the thread that connects [the] ballot measure's various pro
visions," and petitioner has not demonstrated that the Attor
ney General has used unnecessary words in the caption.
Even if the caption proposed by petitioner might be a better
or more complete description of the subject matter of the
measure, that would not provide a basis for rejecting the
Attorney General's certified caption. In my view, the certified
caption adequately states the "subject matter" of the pro
posed measure. For the same reasons, the remainder of the
ballot title substantially complies with the requirements of
ORS 250.035(2).
As noted, this court previously considered chal
lenges by petitioner and by others to Initiative Petition 104.
That proposed measure, like this one, would have made
changes to criminal sanctions, created Meth Strike Forces,
established specific staffing levels for the state police, and
allowed tax credits for contributions to crime prevention

230 Rogers v. Myers
efforts. Also, Initiative Petition 104, like Initiative Petition
133, would have established a commission and two associ
ated task forces to make recommendations to the legislature
for reducing "domestic violence, child abuse, and sex crimes."
Initiative Petition 104 would have m ade a number of other
changes in the criminal law that are not included in Initiative
Petition 133, including repealing the Oregon Medical
Marijuana Act and enacting a different program to provide
prescribed "synthetic cannabinoids" for certain medical
patients. Petitioner asserts that, with the exception of the
changes in the medical marijuana laws, Initiative Petition
133 and Initiative Petition 104 are "virtually identical."
Although that is something of an overstatement, the two
measures share many common fe atures.
The Attorney General certified a ballot title for Ini
tiative Petition 104 that was similar to the ballot title that he
certified for Initiative Petition 133. The certified caption for
Initiative Petition 104 stated:
"MODIFIES LAWS ADDRESSING CRIMINAL
PROSECUTIONS/SANCTIONS, LAW ENFORCEMENT;
CREATES TAX CREDIT; REPLACES MEDICAL
MARIJUANA ACT"
Like the certified caption for Initiative Petition 133, the cap
tion for Initiative Petition 104 identified the subject matter of
the measure by using general and inclusive terms to describe
the measure ( other than the specific references to the tax
credit and medical marijuana law revision). Notably, that
caption did not refer to the commission and the associated
task forces that are to make recommendations to the legisla
ture. Rather, as the Attorney General argued in response to
challenges to the ballot title for Initiative Petition 104, the
commission and the task forces were covered by the general
reference to the modification of laws "addressing criminal
prosecutions/sanctions, law enforcement * * * . " They were
then mentioned specifically in the summary.
Petitioner here challenged the certified ballot title
for Initiative Petition 104, arguing, among other things, that
the caption was deficient because it failed to mention the

23 1
commission and the task forces. This court rejected peti
tioner's challenges (and challenges made by others) and cer
tified the ballot title. Mannix v. Myers, 343 Or 367, 1 70 P3d
1065 (2007). Although this court disposed of the challenge to
Initiative Petition 104 by order rather than by opinion and,
therefore, principles of stare decisis technically may not
apply, the earlier certification order was correct and, in my
view, is a further reason that the Attorney General's ballot
title for Initiative Petition 133 also should be certified.
For the reasons given above, I dissent.
Kistler and Linder, JJ., join in this dissenting
op1mon.