S057678, Opinion — Caruthers v. Kroger

269
On petitioner's objections to modified ballot title filed March 29, considered and
under advisement March 31, second modified ballot title certified to Secretary of
State April 29, reconsideration denied June 11, 2010
Jerry CARUTHERS,
Petitioner,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC 8057678)
230P3d 923
C.JS, Constitutional Law § 13.
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, 	Portland, 	filed 	the 	objections 	and 	the 	reply 	for
petitioner.
Douglas F. 	Zier, 	Senior Assistant Attorney 	General,
Salem, 	filed 	a 	response 	to 	petitioner's 	objections 	for
respondent.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Linder, Justices.*
* Walters, J., did not participate in the consideration or decision of this case.

270 	Caruthers v. Kroger
PERCURIAM
The 	second 	modified 	ballot 	title 	is 	certified 	to 	the
Secretary of State.
Durham, J., dissented and filed an opinion, in which
Gillette, J., joined.

Cite as 348 Or 269 	271
PERCURIAM
This ballot title review proceeding involving Initia-
tive Petition 43 (2010) is before the court for a third time. See
Caruthers v. Kroger, 347 Or 660, 227 P3d 723 (2010) (certi-
fied ballot title referred to Attorney General for modifica-
tion); Caruthers v. Kroger, 348 Or 63, 228 P3d 549 (2010)
(Attorney General's modified ballot title referred to Attorney
General for further modification). In response, on March 23,
2010, the Attorney General certified a second modified ballot
title, which we set out in full:
"Amends Constitution: 	Prohibits current
and future elections laws from disqualifying
registered voters' signatures on initiative/
referendum petitions
"Result of 'Yes' Vote: 	'Yes' vote sets aside many
existing controls over initiative/referendum signature col-
lection and verification process and prohibits the legisla-
ture from enacting statutes for those controls.
"Result of 'No' Vote: 	'No' vote retains existing laws
and regulations that control the initiative and referendum
signature collection and verification process for determin-
ing if measure qualifies for ballot.
"Summary: 	Amends constitution. Initiative and ref-
erendum petitions qualify for ballot only when they are
signed by a sufficient number of qualified registered voters.
Currently, constitutional provisions, statutes, and admin-
istrative rules establish requirements for signature collec-
tion, verification, and counting to prevent fraud, forgery, or
improper signature gathering; for example, disqualifying
entire petition signature sheet if circulator's signature is
undated or date is crossed out. Measure prohibits the dis-
qualification of any individual registered voter's signature
on an initiative/referendum petition, even when signature
on the petition was obtained in violation of current elections
laws. Prohibits any future statute or administrative rule
from disqualifying registered voters' signatures 'for pur-
poses of determining whether the initiative or referendum
petition has obtained enough signatures to qualify for sub-
mission to voters.' Other provisions."
Petitioner has filed objections to the caption and the
summary in the second modified ballot title. Petitioner

argues that, contrary to this court's prior directions, the cap-
tion still focuses incorrectly on election laws that disqualify
voters' signatures on initiative and referendum petitions. He
also contends that the summary is insufficient. He complains
that, by using only a minor technical deficiency as an
example of an election law that the proposed measure would
invalidate, 	the 	summary misleads 	voters into 	believing
that the subject matter of the measure is the protection of
voters' signatures against invalidation due to similar minor
technicalities.
The court has reviewed the second modified ballot
title and petitioner's objections, and has concluded that
petitioner's objections do not demonstrate that the second
modified ballot title lacks substantial compliance with the
requirements 	of ORS 250.035. 	ORS 250.085(8) and (9).
Therefore, the court will certify the second modified ballot
title, quoted above, to the Secretary of State.
The second modified ballot title is certified to the
Secretary of State.
DURHAM, J., dissenting.
Petitioner has filed objections to the caption and
summary in the Attorney General's second modified ballot
title. In my view, the objection to the second modified caption
is well taken. For the reasons stated below, I would again
refer the ballot title to the Attorney General for modification
of the caption. Accordingly, I dissent from the majority's deci-
sion to certify the second modified ballot title to the Secretary
of State.
Initiative Petition 43 (2010), if adopted by the voters,
would amend the Oregon Constitution by curtailing the
authority of the Oregon legislature to establish procedures
for acceptance and verification of voter signature sheets filed
in support of initiative and referendum petitions. The pro-
posed measure would accomplish that result by granting to
registered voters a constitutional right to have their signa-
tures on petitions "counted" toward applicable total signa-
ture requirements. 1 By creating that sort of constitutional
1 Initiative Petition 43 (2010) provides:
"In order to respect voter participation in the initiative and referendum
process, and in order to ensure the integrity of public officials in reviewing

Cite as 348 Or 269 (2010) 	273
right, Initiative Petition 43 (2010) would invalidate a host of
statutory requirements concerning the circulation, verifica-
tion, and filing of petition signature sheets-requirements
that the legislature adopted to protect petition signers and
voters from fraud, forgery, and other abuses by petition cir-
culators. Petitioner contends that, despite three attempts,
the Attorney General still has failed to compose a ballot title
caption that accurately states the subject matter of the pro-
posed measure. ORS 250.035(2)(a) (15-word ballot title cap-
tion must "reasonably identifiy] the subject matter of the
state measure").
The context for the court's consideration of peti-
tioner's argument is a familiar one. In Yugler u. Myers, 344
Or 552, 555, 185 P3d 1110 (2008), this court stated:
"The caption serves as the 'cornerstone for the other por-
tions of the ballot title' and therefore must identify the pro-
posed measure's true subject matter 'accurately and in
terms that will not confuse or mislead potential petition
signers and voters.' Green v. Kulongoski, 322 Or 169, 17 4-
75, 903 P2d 366 (1995)."
This court has insisted that a ballot title caption
describe a proposed measure's subject matter accurately and
without confusion, because of the central importance of the
caption to the decision-making process of petition signers and
voters.
"The caption, which is the first information that most
potential petition signers and voters will see, is pivotal. It
must 'inform potential petition signers and voters of the
sweep of the measure.' Terhune v. Myers, 342 Or 475, 479,
154 P3d 1284 (2007). A caption should not 'understate or
overstate the scope of the legal changes that the proposed
measure would enact.' Kain I Waller v. Myers, 337 Or 36, 40,
93 P3d 62 (2004). If a proposed measure has more than one
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 reforendurn peti-
tion 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 pur-
poses of 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."

274 	Caruthers v. Kroger
subject, each should be indentified in the caption if it is pos-
sible to do so within the 15-word limit. Novick I Sager v.
Myers, 329 Or 11, 16, 986 P2d 1 (1999)."
Frazzini v. Myers, 344 Or 648, 654, 189 P3d 1277 (2008).
The review principles mentioned in those quoted
passages of course apply in all ballot title review proceedings.
The court, however, has been particularly vigilant in scruti-
nizing ballot title captions that allude to the creation of new
legal rights or the modification of existing legal duties. The
court's vigilance is especially justified when, as here, the pro-
posed measure's text not only enacts a new legal "right," but
also states, redundantly, that the measure guarantees the
new right to every registered voter and that no other statute
or rule may restrict the guaranteed new right. One case in
particular illustrates that point. In Yugler, the proposed
measure would have created a statutory requirement that
judges deliver an instruction to juries informing them that
each juror had the "right" and "duty" to judge both the facts
and the law applicable to every case and to disregard a
judge's instructions if the juror believed that those instruc-
tions would result in "an unjust verdict or judgment." 344 Or
at 554 (quoting IP 17). The Attorney General seized on the
words of the proposed measure in certifying the following bal-
lot title caption:
"Requires Instructing Jury of Right/Duty to Disregard
Law ifVerdictAgainst Defendant is 'Unjust'"
Id. The Attorney General defended the use of the " 'right/
duty'" characterization in the caption in part because it accu-
rately reflected the words used in the proposed measure. This
court disagreed, because, in that context, the terms " 'right/
duty' " implied that jurors had an existing right or duty to
disregard applicable law in reaching a verdict. According to
the court, that inference was incorrect and, moreover, it was
debatable whether the proposed measure would create such
a right or duty. Id. at 556.
This court has declined to approve ballot title cap-
tions that repeat the "right," "duty," or similar jargon from a
proposed measure's text, but fail to describe accurately the
true scope of the legal changes that the measure would

Cite as 348 Or 269 	275
create. 	See 	Frazzini, 	344 	Or 	at 	655 	(certified 	caption,
"Retroactively 	Repeals 	Law 	Granting 	State 	Privileges,
Immunities, Rights, Benefits, Responsibilities of Marriage to
Domestic Partners," was insufficient because it failed to accu-
rately portray the separate subject of banning enactment of
any law granting marriage benefits to same-sex domestic
partners); Hunnicutt I Stacey v. Myers, 343 Or 387, 392, 171
P3d 349 (2007) (caption, "Limits Land Use Goals, Need for
Consistency with Goals, to 'Areas of Critical State Concern'"
was insufficient because true legal effect was not described
"limit," but rather nullification ofrequirement that local land
use planning laws must comply with state land use planning
law); Sizemore/Terhune v. Myers, 342 Or 578, 588, 157 P3d
188 (2007) (caption understated scope of measure's proposed
changes to Oregon law due to failure to disclose that measure
(1) created "extensive enforcement provisions" regarding
union security agreements, and (2) actually entitled employ-
ees to receive mandated representation services without
sharing in the cost of the services); Fred Meyer, Inc. v.
Roberts, 308 Or 169, 174, 777 P2d 406 (1989) (in caption,
"Protects Petition Activity at Malls and Premises Open to
Public," term "protects" was misleading, because it implied
incorrectly that citizens had an existing legal right to gather
petition signatures on all premises open to the public). Each
of those cases was an application of a principle that this court
has long observed in reviewing ballot titles:
"A ballot title should not misstate existing law, even by
implication, and thereby create a spurious argument to
support the measure's passage."
Dale v. Kulongoski, 321Or108, 113, 894 P2d 462 (1995) (cita-
tions omitted).
The justification for the court's insistence on looking
behind the legal jargon in a proposed measure's text is read-
ily apparent. A measure's text states the change or changes
in law that the author hopes to enact. However, the meas-
ure's text is not meant to fulfill the task of a ballot title cap-
tion, i.e., to "reasonably identifiy] the subject matter of the
state measure." ORS 250.035(2)(a). Any author of an initia-
tive petition, in drafting a proposed measure, may use any
terms he or she may desire, including politically attractive

terms, to state the legal changes that the measure proposes.
Similarly, an author may avoid referring in the text to polit-
ically unattractive costs or consequences of the approval of
the proposed measure. However, as the cases cited in the pre-
vious paragraph confirm, the ballot title must identify accu-
rately and clearly the proposed measure's subject matter
without deference to any distorted or politically charged ter-
minology that the measure's author may have selected, per-
haps to boost the measure's appeal to voters.
The proposed measure would create a "right" in
every registered voter to have his or her signature counted.
But, by enacting such a "right" as a part of the Oregon
Constitution, the measure also would invalidate a number of
statutory controls that the legislature has created to protect
voters from fraudulent practices by petition circulators. In
net terms, the proposed measure would circumscribe the
heretofore unquestioned authority of the legislature to regu-
late the procedures that govern the circulation of signature
sheets and the verification of signatures on petitions. The
question before the court is whether the latter consequence is
part of the measure's subject matter and, if so, whether
the Attorney General has identified that subject matter
accurately.
The caption that the Attorney General first certified
for Initiative Petition 43 (2010) provided:
" 'Amends 	Constitution: 	Guarantees 	registered 	voter
right to have signature counted in determining initiative/
referendum qualification for ballot.' "
In Caruthers v. Kroger, 347 Or 660, 227 P3d 723 (2010), this
court, after reviewing the relevant provisions of the consti-
tution concerning the people's power of initiative and refer-
endum, concluded that "the constitution empowers the legis-
lature with the authority and responsibility of fleshing out
the process." Id. at 664. The court then reviewed the array of
statutes that the legislature had enacted, and the rules of the
Secretary of State that it had authorized, to regulate the
gathering and counting of signatures on initiative petitions.
The court concluded: "[I]t is clear that proposed measure is
intended to alter the signature gathering and sampling proc-
esses that we have described." Id. at 666. Referring to the

Cite as 348 Or 269 	277
measure's creation of a right to have a voter's signature
"counted," the court identified the measure's subject matter
in these terms:
"From those two provisions, it becomes clear that the sub-
ject 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 proc-
esses by which signatures presently are vetted-processes
that can prevent the counting of certain individual signa-
tures-are to be set aside and that the legislature is forbid-
den to enact substitutes for them. The Attorney General's
caption fails to identify this subject, which is at the heart of
the proposed measure. The Attorney General's certified
caption, therefore, does not substantially comply with
the requirements of ORS 250.035(2)(a). The ballot title
therefore must be referred to the Attorney General for
modification."
Id. at 668 (footnote and citation omitted). The court also
expressly 	agreed 	with 	petitioner's 	contention 	that 	the
Attorney General's use in the caption of a phrase such as
"right to have signature counted," even though taken from
the measure's text, introduced a loaded term into the caption
that should be avoided on referral. Id. The court referred the
ballot title to the Attorney General for modification.
On referral, the Attorney General certified a modi-
fied ballot title with the following caption:
"Amends 	Constitution: 	Prohibits 	laws 	restricting
count of registered voters' signatures to determine initiative/
referendum qualification for ballot"
Petitioner filed objections to that modified ballot title, includ-
ing the caption, arguing that the new caption failed to focus,
as this court had required, on the statutes and rules that the
measure would invalidate. This court agreed, stating:
"Petitioner is correct. This court did state in its earlier
opinion that the proposed measure would remove some (not
all) of the impediments to counting signatures, but specifi-
cally noted that the manner in which that would be accom-
plished was that
" 'some of the processes by which signatures presently
are vetted-processes that can prevent the counting of

278 	Caruthers v. Kroger
certain individual signatures-are to be set aside and
* * *the legislature 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, 34 7 Or at 668. As further clarification, the opin-
ion 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
principal focus or purpose the disqualification ofsignatures.
Thus, as our previous opinion indicated (and as petitioner
now argues), the subject of the proposed measure was the
elimination of many existing controls on the present signa-
ture collection and verification process, together with a pro-
hibition on creating substitutes for those controls. The
Attorney General's caption still does not capture that sub-
ject. It must."
348 Or at 68 (omission in original; emphasis added). The
court referred the ballot title to the Attorney General for
modification.
It is worth noting at this point that this court's two
opinions created a clear message about the error that had
infected the Attorney General's two captions. In response to
that message, the Attorney General certified a second modi-
fied ballot title that included the following caption:
"Amends Constitution: 	Prohibits current and future
elections laws from disqualifying registered voters' signa-
tures on initiative/referendum petitions"
Petitioner has filed an objection to that caption. Peti-
tioner notes that the new "yes" vote result statement does
comply with the court's prior decisions. It states:
"Result of 'Yes' Vote: 	'Yes' vote sets aside many exist-
ing controls over initiative/referendum signature collection
and verification process and prohibits the legislature from
enacting substitutes for those controls."
But the new caption bears little relationship to the "yes" vote
result statement. According to petitioner, the caption again

Cite as 348 Or 269 	279
avoids this court's clear statements about what the caption
must contain to pass muster.
In my view, petitioner is correct. The statement that
the measure would "prohibit current and future elections
laws 	from 	disqualifying 	registered 	voters' 	signatures"
wrongly identifies the measure's focus as "laws" that inter-
fere with the counting of voters' signatures: this court already
has rejected that erroneous focus in two previous captions.
Despite this court's statement in its second opinion that "few
(if any) [of the pertinent statutes and rules] have as their
principal focus 	or purpose the disqualification of signa-
tures[,]" id., 	the Attorney General's new caption 	again
focuses on the prohibition of "elections laws * * * disqualify-
ing 	registered 	voters' 	signatures 	* * *." 	That 	phrasing
reflects an overreliance by the Attorney General on the crea-
tion by the proposed measure's text of a right to have a sig-
nature counted. The new caption fails to identify, as our prior
opinions required, the proposed measure's true subject mat-
ter: "the elimination of many existing controls on the present
signature collection and verification process, together with a
prohibition on creating substitutes for those controls." Id.
The importance of requiring an accurate ballot title
caption in his matter cannot be gainsaid. The proposed meas-
ure would amend the Oregon Constitution, and thus would
remove the prospect of any later adjustment of the proposed
measure's operation by the Oregon legislature.
Because the second modified ballot title caption
merely recycles the same substantive information that this
court already has rejected twice as insufficient, I would refer
the second modified ballot title to the Attorney General for
modification.
Gillette, J., joins in this dissenting opinion.