S057316, Opinion — Caruthers v. Kroger (S057316)

581
On petition to review ballot title filed April 30; considered and under advisement
July 1, ballot title referred to Attorney General for modification August 6, 2009
Jerry CARUTHERS
and Larry Wolf,
Petitioners,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC 8057316)
213P3d1255

582 	Caruthers v. Kroger (S057316)
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.

Cite as 346 Or 581 	583
BALMER,J.
Petitioners seek review of the Attorney General's
certified ballot title for Initiative Petition 38 (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 38, if enacted, 	would amend
Oregon law to provide that "[n]o public resource, including
any part or aspect of the public payroll system, shall be used
to collect or help collect union dues or payments in lieu of
dues," and that "no public resource shall be used to collect or
help collect money used for a political purpose." The proposed
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 further states
that "a resource shall be deemed to have been used, even if
the public entity is reimbursed for the cost of using or provid-
ing it * * *." The measure defines "political purpose" to
include, among other things, contributions or independent
expenditures in support of or in opposition to a candidate,
political party, or initiative or referendum. The measure
penalizes any person or entity that uses for a political pur-
pose money collected in whole or in part through the use of "a
public resource" or that "commingles" money so collected
with "political funds." If a person or entity violates the pro-
hibition, the person or entity must pay a civil penalty of twice
the amount of money spent in violation of the measure, and,
thereafter, "no public employer or government entity shall
collect money for any purpose for that person or entity."
In its prohibition of the use of "public resources" to
collect money that is used or commingled with money used
for "political purposes," Initiative Petition 38 is identical to
Initiative Petition 34 (2010), which is the subject of the ballot
title challenge that we decide this day in Caruthers v. Kroger
1 The prohibition in Initiative Petition 38 uses the term ''public resource,"
while the definition refers to "public resources."

584 	Caruthers v. Kroger (S057316)
(8057315), 346 Or 574, 213P3d1251 (2009). However, Initia-
tive Petition 38 contains the additional prohibition, not
included in Initiative 34, on the use of public resources,
including specifically the public payroll system, for collecting
union dues or payments in lieu of dues, even if those dues are
not used for political purposes.
The Attorney General certified the following ballot
title for Initiative Petition 38:
"PROHIBITS USING 'PUBLIC RESOURCES'
(DEFINED) TO COLLECT UNION DUES AND FUNDS
FOR 'POLITICAL PURPOSES' (DEFINED).
"RESULT OF 'YES' VOTE: 	'Yes' vote prohibits using
'public resources' (defined) to collect union dues, funds for
'political purpose' (defined)/commingling money collected
with 'public resource' with 'political' funds.
"RESULT OF 'NO' VOTE: 	'No' vote allows use of'pub-
lic resources' to collect union dues, funds for 'political pur-
pose,' commingling of funds collected with 'public resources'
with 'political' funds.
"SUMMARY: 	Current 	law 	allows 	using 	'public
resources' to collect union dues, funds for 'political pur-
poses,' using those collected funds for political purposes.
Measure prohibits collecting union dues, 'political purpose'
funds with 'public resources;' bars individuals, organiza-
tions, other entities from using money collected with 'public
resources' for 'political purpose' or commingling it with
'political' funds. 'Money' includes specified types of contri-
butions, 	independent 	expenditures. 	'Public 	resources'
include money, public employee work time, buildings,
equipment, supplies. 'Used for political purpose' means:
contributed to candidate, political committee/party, initia-
tive/referendum committee; spent supporting, opposing
candidate, ballot measure, gathering signatures for pro-
posed measure, petition; excludes certain lobbying activi-
ties. Mandates civil penalties; bars government from col-
lecting money for entity using such money for 'political
purpose'/commingling 	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

Cite as 346 Or 581 (2009) 	585
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 measure. ORS
250.035(2). Petitioners assert that the caption of the certified
ballot title, which focuses on the prohibition of using "public
resources" to collect union dues and funds that are used for
"political purposes," is inadequate because it fails to describe
who is prohibited from doing the acts described in the pro-
posed measure. Petitioners argue that the caption must state
that the measure would prohibit organizations and individ-
uals from collecting certain payments and spending the
money collected in certain ways. Petitioners point out that, in
two earlier ballot title challenges involving somewhat similar
measures, this court required that the captions refer to the
entities affected by the proposed measures. See Terhune v.
Myers, 342Or136, 149P3d1139 (2006);Nesbitt v. Myers, 335
Or 219, 64 P3d 1133 (2003) (both holding that ballot titles for
proposed measures that would affect payroll deductions must
identify entities affected by measures).
The Attorney General responds that the caption is
not deficient in failing to identify who would be affected by
the prohibitions in the proposed measure because "the terms
of the measure broadly prohibit[ ] the use of'public resources'
to collect both union dues and funds for political purposes, no
matter who is doing the collecting." The Attorney General
argues that the measures at issue in Terhune and Nesbitt
focused "wholly on what organizations that receive money
through payroll deductions may do with that money," while
Initiative Petition 38 not only contains restrictions on how
such money can be spent, but also flatly prohibits the use of
"public resources" to collect certain money. The Attorney
General thus distinguishes the cases cited by petitioners.
We agree with petitioners that the caption must be
modified. In Terhune, Nesbitt, and other ballot title chal-
lenges involving measures that would restrict payroll deduc-
tions in one way or another, this court has required that the
caption make some mention of the entities upon whom the

586 	Caruthers v. Kroger (8057316)
restriction will operate. In Terhune, for example, the certified
caption provided:
"RESTRICTS USE OF PAYROLL DEDUCTIONS FOR
'POLITICAL PURPOSE' (DEFINED); REQUIRES SEG-
REGATING SUCH MONEY; MANDATES PENALTIES"
342 Or at 138.
This court held that the caption was inadequate
because it
"fail[ed] to disclose that the focus of the measure's restric-
tions and penalties is on the individuals and organizations
that collect or receive the money from payroll deductions. It
is those entities that the measure restricts from using pay-
roll deductions for political purposes. It is difficult, if not
impossible, to understand the subject matter of the meas-
ure without a disclosure that the measure will restrict the
operations of those individuals and organizations."
342 Or at 140 (emphasis added). The certified caption here,
like the certified caption that this court found to be inade-
quate in Terhune, describes only the prohibition and fails to
mention the entities upon whom the prohibition works.
As noted previously, the Attorney General appar-
ently agrees that, if the only effect of the proposed measure
were to restrict individuals' and entities' use of money col-
lected using public resources, then petitioners' claim that the
caption should refer to those individuals and entities would
be well taken. The Attorney General's position is that,
because the measure not only would prohibit (and penalize)
certain uses of funds collected, but also would prohibit any
use of public resources to collect funds for such uses or to col-
lect union dues, the caption's general reference to the prohi-
bition of the use of public resources is sufficient. In our view,
however, the fact that the proposed measure contains addi-
tional restrictions, such as the prohibition on the use of any
"public resources" to collect union dues, does not justify the
failure to describe the entities directly affected by the meas-
ure. The Attorney General is correct that Initiative Petition
38 would have effects beyond simply restricting the use to
which individuals and entities may put money collected
using public resources, as in Terhune and Nesbitt, and we are
sympathetic to the difficulty of describing the various effects
of the measure within the statutory word limit. However, the

Cite as 346 Or 	587
Attorney General does not argue, and we do not perceive,
that it would be impossible for a caption to comply with this
court's statements in Terhune and Nesbitt about referring to
the entities directly affected by the prohibition and also to
express in general terms the other key aspects of the
measure.
Petitioners make other arguments with respect to
the caption, one of which we find persuasive. Petitioners
argue that the reference in the caption to the proposed meas-
ure's prohibition on using public resources "to collect union
dues and funds for 'political purposes' (defined)" may be read
by voters to prohibit "funds used for political purposes" and
"union dues used for political purposes." Put differently, they
claim that voters will read the modifying phrase "used for
political purposes" as applying to the terms "union dues" as
well as to the word "funds." That reading, petitioners cor-
rectly assert, would be inaccurate, because the proposed
measure would prohibit the use of public resources to collect
all union dues, not just those union dues used for political
purposes. The Attorney General responds that voters will
understand the common term "dues" as referring to fees paid
for membership in a particular organization and therefore
will not confuse the phrase "union dues" with the separate
phrase "funds used for political purposes." In our view there
is a sufficient possibility that voters will interpret the phrase
as meaning that the prohibition applies to "funds used for
political purposes" and to "union dues used for political pur-
poses." Because that would be a significant error in terms of
the subject oflnitiative Petition 38, we conclude that the cap-
tion should be modified to avoid that potential reading.
Petitioners also challenge the "yes" and "no" vote
result statements, raising the same arguments that they
make with respect to the caption. For the reasons given
above, we agree with petitioners' argument that the "yes"
and "no" vote result statements must refer in some way to the
organizations or individuals that are prohibited from doing
the acts outlined in the proposed measure. As to petitioners'
argument that voters may understand the measure to apply
to only "union dues for political purposes," rather than to all
union dues, we disagree. In the "yes" and "no" vote result
statements, the terms "union dues" and "funds for 'political

588 	Caruthers v. Kroger (8057316)
purpose' " are separated by commas-in contrast to the cap-
tion, where those two terms are joined with the conjunction
"and." We do not see the same potential for voter confusion in
the "yes" and "no" vote result statements as we do with
respect to the caption. We reject without discussion petition-
ers' other challenges to those parts of the ballot title.
Petitioners make several arguments that the certi-
fied summary fails to accurately summarize the measure. We
agree with one of petitioners' arguments. As noted above in
the description of Initiative Petition 38, the proposed meas-
ure provides that a "public resource" has been "used" even if
the public entity is reimbursed for the cost of using or provid-
ing the resource. The summary does not describe that aspect
of the definition of "public resource." 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 prohibitions
apply." The Attorney General responds that the certified
summary accurately conveys the scope of the proposed meas-
ure to voters because it describes the flat prohibition on the
use for political purposes of funds collected using public
resources. The Attorney General asserts that voters will
understand that "any use of public resources to collect funds,
without exception, triggers the restriction * * *." For the
reasons that we set out in Caruthers (8057315), 346 Or at
579-80, we agree with petitioners.
The ballot title is referred to the Attorney General
for modification.