S057803, Opinion — Caruthers/Syrett v. Kroger

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

On petition to review ballot title filed September 21, considered and under
advisement on December 2, ballot title referred to Attorney General for
modification December 24, 2009, modified ballot title certified
January 20, 2010 (347 Or 535)

Jerry CARUTHERS
and Gail Rasmussen,
Petitioners,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(S057803 (Control))
Claire SYRETT
and David Fidanque,
Petitioners,
v.

John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(S057815)
(Cases Consolidated)
222 P3d 706

<!-- PageBreak -->

<!-- PageHeader="Caruthers/Syrett v. Kroger" -->

CJS, Statutes § 131.

# En Banc

Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and the reply memorandum
for petitioners Jerry Caruthers and Gail Rasmussen.

David J. Elkanich, Hinshaw & Culbertson LLP, Portland,
filed the petition and the reply memorandum for petitioners
Claire Syrett and David Fidanque. With him on the reply
memorandum was Calon Russell.

Christina M. Hutchins, Senior Assistant Attorney
General, Salem, filed the answering memorandum for
respondent. With her on the answering memorandum were
John R. Kroger, Attorney General, and Jerome Lidz, Solicitor
General.

BALMER, J.

The ballot title is referred to the Attorney General for
modification.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 411 (2009)" -->
<!-- PageBreak -->

<!-- PageHeader="Caruthers/Syrett v. Kroger" -->

BALMER, J.

These two ballot title proceedings, which we consol-
idated for opinion and disposition, seek review of the
Attorney General's certified ballot title for Initiative Petition
52 (2010). See ORS 250.085(2) (specifying requirements for
seeking review of certified 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 52, if enacted, would amend
Oregon law in two different respects. First, it would provide
that neither the state, nor any political subdivision of the
state, may adopt a statute, regulation, or order that would
"prohibit or limit any public official or public employee from
cooperating with federal agencies or officials in the enforce-
ment of federal immigration law." Second, it would direct
state election officials to "require satisfactory evidence of
United States citizenship from any applicant who is register-
ing to vote for the first time as an Oregon voter" and would
specify the documents that would constitute such evidence of
citizenship.

The Attorney General certified the following ballot
title for Initiative Petition 52:

# "Allows state/local cooperation with immigration enforcement; requires certain documentation of cit- izenship for voter registration

"Result of 'Yes' Vote: 'Yes' vote allows state/local
cooperation and resources for immigration enforcement;
voter registration requires documentation of citizenship:
driver license; birth certificate; passport; naturalization
documents; other.

"Result of 'No' Vote: 'No' vote retains current state/
local limits on cooperation and resources to enforce federal
immigration laws; voter registration requirements: indica-
tion of citizenship; attestation of qualifications.

"Summary: Current law prohibits expenditure of
state/local law enforcement resources solely to enforce fed-
eral immigration laws; allows only United States citizens to

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 411 (2009)" -->

vote, and requires Oregon voter registrants to attest to, but
not to document, voter qualifications. Measure prohibits
laws limiting government officials'/employees' cooperation
with federal officials enforcing immigration law; requires
first-time Oregon voter registrant to provide proof of citi-
zenship consisting of any one of the following: an Oregon
driver license/non-operating identification license issued
after October 1, 1996 or from another state indicating that
the person has provided proof of citizenship; birth certifi-
cate; United States passport; naturalization documents or
confirmed number of naturalization certificate; other docu-
ments or method of proof established under federal immi-
gration law; specified types of proof of tribal membership."

The Caruthers petitioners and the Syrett petitioners
are electors who timely submitted written comments to the
Secretary of State concerning the content of the Attorney
General's draft ballot title and who therefore are entitled to
seek review of the resulting certified ballot title in this court.
See ORS 250.085(2) (stating that requirement). Both sets of
petitioners challenge the caption, the "yes" and "no" vote
result statements, and the summary on various grounds.
Certain of petitioners' objections relate to the ballot title's
description of the "cooperation" provision of Initiative
Petition 52, while others relate to the "voter registration" pro-
vision of the measure. We reject without discussion petition-
ers' objections that relate to the voter registration provisions
of the proposed measure and turn to petitioners' arguments
challenging the ballot title's description of the "cooperation"
provision.

As background, we briefly describe current law with
respect to the "cooperation" of state and local governments
with federal immigration enforcement. The only statute that
now addresses that subject specifically is ORS 181.850,
which provides, in part, that no state or local "law enforce-
ment" agency may use agency resources "for the purpose of
detecting or apprehending persons whose only violation of
law is that they are persons of foreign citizenship present in
the United States in violation of federal immigration laws."
ORS 181.850(1). Other provisions of ORS 181.850 permit
state and local law enforcement agencies, notwithstanding
ORS 181.850(1), to exchange information with federal

<!-- PageBreak -->

<!-- PageHeader="Caruthers/Syrett v. Kroger" -->

authorities regarding the immigration status of arrested per-
sons and to arrest persons for violation of federal immigra-
tion laws if an arrest warrant has been issued by a federal
magistrate. See ORS 181.850(2), (3) (so providing). No other
Oregon statutes appear to address the "cooperation" of
Oregon state or local government agencies with federal
immigration enforcement. We return to petitioners' chal-
lenges to the certified ballot title.

A ballot title must contain a caption "that reasonably
identifies the subject matter" of the proposed measure. ORS
250.035(2)(a). Petitioners argue that several aspects of the
caption are inaccurate or misleading and that the caption
thus fails to substantially comply with the statutory require-
ment. We agree with one of those arguments. Specifically,
both sets of petitioners argue that the caption, which states
that the proposed measure "[a]llows state/local cooperation
with immigration enforcement," is inaccurate, because the
measure "does not 'allow' anything," but rather prohibits any
formal government action that would limit public employees
from "cooperating" with federal immigration enforcement.
Moreover, they assert, the caption incorrectly implies that
state or local cooperation with federal immigration enforce-
ment is not currently allowed. They point out that, although
ORS 181.850 places some restrictions on the use of state
resources to enforce federal immigration laws, those restric-
tions apply only to state and local "law enforcement" agencies
and only to the use of resources to "detect[ ] or apprehend[ ]"
individuals solely because they are in violation of federal
immigration law. In fact, petitioners argue, state and local
agencies, including law enforcement agencies, currently are
permitted to and, in some circumstances, do "cooperate" with
federal immigration enforcement.

The Attorney General responds that, although the
"cooperation" provision of the proposed measure is phrased
as a prohibition, the "net effect" of the measure would be to
"allow[ ]" public officials and public employees to cooperate
with federal immigration enforcement. The Attorney
General notes that the measure would lift existing restric-
tions on cooperation-such as ORS 181.850-thus "allowing"
such cooperation, but would not affirmatively require coop-
eration. For that reason, he argues, the caption is not confus-
ing or inaccurate.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 411 (2009)" -->

Initiative Petition 52 uses a double negative-
"[n]o statute, regulation or order * * * shall prohibit * * * "
-because it seeks to prevent certain kinds of formal govern-
ment actions or policies. Rather than using an admittedly
awkward double negative in the caption-such as "prohibits
limitations" or "bans restrictions"-the Attorney General
chose to describe the subject of the measure using the per-
missive term "allows." However, the measure does not pur-
port to "allow" anything, including cooperation between state
and federal officials regarding immigration enforcement-
and, in fact, such cooperation is not a necessary outcome of
the proposed measure. Instead, the proposed measure pro-
hibits certain kinds of laws. And that is all that it does. More
importantly, use of the term "allows" in this context suggests,
inaccurately, that cooperation is not allowed now and also
implies that, were the measure to pass, state and local gov-
ernments would cooperate with federal immigration enforce-
ment. We thus agree with petitioners that the caption does
not accurately identify the subject matter of the measure.
The caption must be modified to reflect what the measure
would do, which is to bar state and local laws that prohibit
public employees from cooperating in federal immigration
enforcement.

Petitioners also challenge the "yes" and "no" vote
result statement on various grounds. For the reasons set out
above with respect to the caption, we agree with petitioners
that the "yes" vote result statement does not adequately
describe the "result if the state measure is approved," ORS
250.035(2)(b), because the word "allows" inaccurately sug-
gests that state and local public employees presently are not
permitted to and do not cooperate with federal immigration
enforcement and that, if the measure passes, they suddenly
will be free to engage in such cooperation. Petitioners' other
challenges to the "yes" vote result statement and their chal-
lenges to the "no" vote result statement are not well taken.

Petitioners raise the same arguments with respect to
the summary that they raise regarding the other parts of the
ballot title, as well as raising other objections. The
Attorney General's certified summary, however, does not suf-
fer from the defects that we have discussed above. The sum-
mary does not use the term "allows" to describe the effect of
the measure, but instead states that the measure "prohibits

<!-- PageBreak -->

<!-- PageHeader="Caruthers/Syrett v. Kroger" -->

laws limiting government officials'/employees' cooperation
with federal officials enforcing immigration law." That is an
accurate description of the measure. Petitioners have not
demonstrated that the summary, either with respect to the
"cooperation" provision of the measure or in any other way,
fails to substantially comply with the statutory requirement
that it provide an accurate, concise, and impartial summary
of the "measure and its major effect." See ORS 250.035(2)(d)
(stating requirements for ballot title summary).

The ballot title is referred to the Attorney General
for modification.