Kendoll v. Rosenblum

• Court: Oregon Supreme Court
• Decided: March 3, 2016
• Docket: S063675
• Status: Published

Opinion

612 March 3, 2016 No. 6

IN THE SUPREME COURT OF THE STATE OF OREGON

Cynthia KENDOLL, Petitioner, v. Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. (S063675)

En Banc On petition to review ballot title filed November 13, 2015, considered and under advisement on January 26, 2016. Jill Gibson, Gibson Law Firm, Portland, filed the petition and reply for petitioner. Carson L. Whitehead, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General. Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, filed the memorandum for amici curiae ACLU Foundation of Oregon, David Rogers, Rev. Joseph Santos- Lyons, Kayse Jama, Andrea Miller, and Jeff Stone. KISTLER, J. Ballot title referred to Attorney General for modification. Case Summary: Petitioner seeks review of the Attorney General’s ballot title for Initiative Petition 52 (2016), which would supplement federal immigration law by requiring employers to verify the work authorization of new hires. Petitioner asserts that the Attorney General’s caption, “yes” and “no” result statements, and summary do not substantially comply with legal requirements for ballot titles. Held: The Attorney General’s caption fails to identify an actual major effect of the measure — the requirement that employers verify the authenticity of docu- ments that, under federal law, employers must review to determine employment authorization. Rather, the title focuses primarily on the mechanism (a licensing scheme) by which that effect would be achieved. The same problem affects the “yes” result statement which focuses on licensure rather than the requirement that employers verify the authenticity of documents they must review to deter- mine employment authorization. The “no” result statement fails to distinguish Cite as 358 Or 612 (2016) 613

between state and federal law requirements concerning employment authoriza- tion and implies incorrectly that the current law on this subject is state rather than federal law. Ballot title referred to Attorney General for modification. 614 Kendoll v. Rosenblum

KISTLER, J. Petitioner seeks review of the Attorney General’s certified ballot title for Initiative Petition 52 (2016) (IP 52). See ORS 250.085(2) (specifying requirements for seeking review of certified ballot titles). We review the ballot title to determine whether it substantially complies with ORS 250.035(2). See ORS 250.085(2), (5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification. IP 52, if enacted, would supplement federal immi- gration law. We accordingly describe the relevant federal law briefly before describing the state requirements that IP 52 would add. Federal immigration law makes it unlaw- ful for “ ‘a person or other entity * * * to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.’ ” Chamber of Commerce v. Whiting, 563 US 582, 131 S Ct 1968, 1974, 179 L Ed 2d 1031 (2011) (quoting 8 USC § 1324a(a)(1)(A)). An “unauthorized alien” is defined as an alien “who is not ‘lawfully admitted for permanent residence’ or not other- wise authorized by the Attorney General to be employed in the United States.” 131 S Ct at 1974 (quoting 8 USC § 1324a(h)(3)). Federal law requires employers hiring a new employee to review certain documents, such as the employee’s United States passport, resident alien card, or social secu- rity card, to determine whether that person is authorized to work. Id. An employer must attest on a federal form (Form I-9) that it has reviewed the appropriate documents and determined that the employee is not an unauthorized alien. Id. Congress has established a website, E-Verify, that permits employers to determine whether the documenta- tion that the employer reviewed in completing Form I-9 is authentic or, more specifically, matches records on file with the federal government. Id. at 1975; see https://www.uscis. gov/e-verify/what-e-verify (accessed Feb 25, 2016) (explain- ing that E-Verify compares information submitted by an employer with records on file with the federal government). An employer that uses E-Verify “submits a request to [that] system based on information that the employee provides Cite as 358 Or 612 (2016) 615

similar to that used in the [Form] I-9 process.” Whiting, 131 S Ct at 1975. In response, the “employer [will] receiv[e] either a confirmation or a tentative nonconfirmation of the employee’s authorization to work.” Id. Employers that use E-Verify accordingly do more than review the documenta- tion that an employee has submitted; they receive some ver- ification from the federal government as to the authenticity of that documentation. Generally, federal immigration laws do not require employers to use E-Verify. Id. It is sufficient for the purposes of federal immigration law that an employer review certain documents, complete Form I-9, and not knowingly hire an unauthorized alien. Id. at 1974. However, federal law pro- vides an incentive for employers to use E-Verify. Id. at 1975. Using E-Verify establishes a rebuttable presumption that an employer did not violate federal immigration laws even if it later turns out that the employer in fact hired an unautho- rized alien. Id. (explaining that presumption). One final point about federal law requires mention. Federal immigration law “expressly preempts ‘any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment unautho- rized aliens.’ ” Id. at 1973 (quoting 8 USC § 1324a(h)(2)). In Whiting, the Court held that the federal immigration laws did not preempt an Arizona statute that, among other things, required employers, as part of a state licensing scheme, to “verify the employment eligibility of [an] employee by using E-Verify.” Id. at 1985 (internal quotation marks omitted). The Court explained that the Arizona statute came within the express exception from preemption for “licensing and similar laws.” Id. at 1977-87. IP 52 is similar but not identical to the Arizona statute at issue in Whiting.1 IP 52, if enacted, would man- date what federal law only encourages. Essentially, IP 52 would add a state licensing requirement that employers use E-Verify to determine their employees’ eligibility to work. 1 We express no opinion on whether any differences between IP 52 and the Arizona statute in Whiting would affect the preemption analysis. 616 Kendoll v. Rosenblum

More specifically, IP 52 provides that, if federal law requires an employer to complete Form I-9, then the employer must “register and participate in [the] federal government’s employment authorization program to verify the work authorization of every new employee within three business days after employing the new employee.”2 IP 52 § 3(b). An employer employing five or more persons may not employ or continue to employ persons whose authorization to work has not been verified.3 Id. § 3(c). The measure implements those requirements by imputing licenses to employers and suspending the employer’s license if the employer fails to verify an employee’s authori- zation to work. Specifically, if an employer employing five or more persons fails to verify a newly hired employee’s autho- rization to work within three days, the measure requires the Oregon Secretary of State to place the employer on pro- bation for the first violation and to “suspend the employer’s license for at least thirty (30) days but not more than one (1) year” for a subsequent violation. Id. § 4. Additionally, the measure prohibits “all employers in Oregon” from employing “a person unless the private employer’s employment license [established by IP 52] and any other applicable licenses [as defined elsewhere in the measure] are in effect and not sus- pended.” Id. § 3(a).4 The Attorney General certified the following ballot title for IP 52:

2 IP 52 defines “verify the employment authorization” to mean “us[ing] a federal government employment authorization program to determine whether a newly hired employee is authorized to be employed in the United States pursu- ant to 8 U.S.C. § 1324a.” IP 52 § 2(h). It defines an “[e]mployment authorization program” as meaning “the E-verify Program * * * or any successor program des- ignated by the federal government to verify the employment authorization of an employee.” Id. § 2(d). 3 IP 52 provides that, if E-Verify returns a “tentative nonconfirmation,” the employee may contest that determination. An employer may not take an adverse employment action based on the tentative nonconfirmation while the employee contests that determination. 4 The measure refers at different points to “employers,” “all employers in Oregon,” “private employers,” and employers “employing five or more employees.” The measure is not always clear as to which employers would be subject to the different provisions in the measure, as well as the criteria that would be used to determine when an employer is “in Oregon.” The ballot title appropriately does not seek to resolve those ambiguities. Cite as 358 Or 612 (2016) 617

“ ‘Imputes’ ‘employment license’ to employers; conditions ‘license’ on using specified federal program for employment authorization “Result of ‘Yes’ Vote: ‘Yes’ vote ‘imputes’ ‘employment license’ to employers; ‘license’ (defined) required to employ any person. ‘License’ conditioned on verifying new employ- ee’s employment authorization using federal program. “Result of ‘No’ Vote: ‘No’ vote maintains current law requiring employer to confirm employee’s employment authorization using documentation; current law does not require ‘employment license’ or using specified program. “Summary: Existing law requires employers to confirm employee’s employment authorization; can use Form I-9. Measure ‘imputes’ new state ‘employment license’ to all employers. Requires employers with five or more employees to verify new employee authorization using internet-based federal program. Prohibits employing any person if employer’s ‘employment license’ or other ‘license’ (defined) suspended/revoked. Penalties for noncompliance include suspension of all ‘licenses’ by Secretary of State, prohibit- ing employment of any person. Required federal program indicates employment is ‘authorized’ or issues ‘nonconfir- mation.’ ‘Nonconfirmation’ can result from employee inel- igibility/incorrect information. Employee may ‘contest’ ‘nonconfirmation;’ adverse employment action prohibited during contest. Employers must register with federal pro- gram; Oregon Employment Department shall provide tech- nical advice, access. Secretary of State shall report penal- ties to federal immigration authorities. Exceptions. Other terms.” Petitioner challenges the ballot title’s caption, the “yes” and “no” result statements, and the summary. We begin with the caption. ORS 250.035(2)(a) pro- vides that a ballot title must contain a “caption of not more than 15 words that reasonably identifies the subject matter of the state measure.” A caption will reasonably identify the subject matter of a measure if it describes the “actual major effect” of the measure or, if there is more than one major effect, all that can be described within the word limit. Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011). To iden- tify an “actual major effect,” we consider the “changes that 618 Kendoll v. Rosenblum

the proposed measure would enact in the context of existing law.” Rasmussen v. Kroger (S059261), 350 Or 281, 285, 253 P3d 1031 (2011). We have recognized that “trying to describe all the major effects of a multifaceted, complex measure in 15 words can be difficult, and some- times not possible. At times, it may be necessary to describe those effects generally. See Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003).” McCann/Harmon v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014). Petitioner argues that the caption fails to meet that standard for two reasons. First, she contends that the cap- tion overemphasizes the licensing aspects of the measure while failing to mention that the measure requires verifi- cation “based on legal presence.” Second, she contends that the caption should refer to E-Verify by name rather than a “specified federal program for employment authorization,” which she views as a “more cumbersome and less-informa- tive” phrase than E-Verify. We agree with petitioner that the caption fails to sub- stantially comply with ORS 250.035(2)(a). Federal immigra- tion law requires that employers review certain documents to “establis[h] an employee’s eligibility for employment,” and it prohibits employers from knowingly hiring unauthorized aliens. Whiting, 131 S Ct at 1974. IP 52, if enacted, would add an additional requirement to that federal law. It would require, as a matter of state law, that employers use a fed- eral website to verify the authenticity of the documents that federal law requires only that they review. That additional requirement is one major effect of the measure.5 The caption, however, does not highlight that effect. Rather, as petitioner notes, the caption focuses primarily on the mechanism (the licensing scheme) by which that effect would be achieved. To

5 The sanctions that the measure prescribes also could be viewed as a major effect of the measure. Not only does the measure authorize the Secretary of State to prohibit certain employers from hiring employees for up to a year for a sec- ond failure to verify an employee’s documentation, but it prohibits all employers from employing persons while various other business licenses are suspended. Petitioner, however, has not challenged the caption on the ground that it fails to mention sanctions, and we consider only the challenges that petitioner has raised. Cite as 358 Or 612 (2016) 619

be sure, the licensing scheme has legal significance because it presumably is the means by which the proponents of the measure seek to avoid federal preemption. See id. at 1980 (holding that Arizona’s similar requirement was not pre- empted because it was part of a licensing scheme). However, in focusing almost exclusively on licensure, the caption fails to identify a major effect of the measure and must be modified. Petitioner advances two, more specific criticisms of the caption, which we discuss briefly. Petitioner argues that the caption does not alert voters that this measure is about eligibility to work “based on [an employee’s] legal pres- ence” in the United States. Perhaps the Attorney General could have chosen to highlight that aspect of the measure, but we cannot say that she had to do so. The federal gov- ernment describes E-Verify as a program that determines whether an employee is either authorized or eligible to work. For example, the E-Verify website explains that E-Verify permits employers “to determine whether the information matches government records and whether the new hire is authorized to work in the United States.” https://www. uscis.gov/e-verify/about-program (accessed Feb 25, 2016).6 Similarly, the United States Supreme Court has explained that an employer that participates in E-Verify “receives either a confirmation or a tentative nonconfirmation of the employee’s authorization to work.” Whiting, 131 S Ct at 1975. Those descriptions of E-Verify reflect the fact that E-Verify is not itself the source of a prohibition against hir- ing unauthorized aliens. Rather, using E-Verify, which the measure would require, results only in verifying the authen- ticity of documents that employers enter into that system by matching those documents against records in the federal government’s possession. Given the United States Supreme

6 In the same vein, the E-Verify website explains that “E-Verify * * * com- pares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.” https://www. uscis.gov/e-verify/what-e-verify (accessed Feb 25, 2016). It describes E-Verify as “an electronic program through which employers verify the employment eligibil- ity of their employees after hire.” https://www.uscis.gov/e-verify/about-program (accessed Feb 25, 2016). 620 Kendoll v. Rosenblum

Court’s and the federal government’s more limited descrip- tions of E-Verify, we cannot say that the caption must refer to an employee’s “legal presence” to substantially comply with the requirement that the caption describe the mea- sure’s major effect. Petitioner also argues that the caption should use the term “E-Verify” rather than a “specified federal pro- gram for employment authorization.” Petitioner reasons that E-Verify is a familiar phrase, while the phrase used in the caption is cumbersome and adds no useful informa- tion. One might question the unsupported factual premise of petitioner’s argument—that E-Verify is such a well-known program that its name alone is sufficient to communicate the nature of the requirement that IP 52 would add to state law. The more fundamental problem, however, with peti- tioner’s argument is that it assumes that the use of a par- ticular method for verifying an employee’s documentation is one of the measure’s major effects. As explained above, a major effect of the measure is to require employers to verify an employee’s authorization to work. The means by which that effect is accomplished—whether it is by using a federal website or a telephone hot line—is, by comparison, of lesser significance. We accordingly disagree with petitioner’s two specific criticisms of the caption, but we agree with her more general point that the caption’s almost exclusive focus on licensure obscures a major effect of the measure. Petitioner also challenges the “yes” and “no” results statements. Under ORS 250.035(2)(b), a ballot title must include a “simple and understandable” statement of no more than 25 words that describes the result if the measure is approved. A “yes” result statement “should describe the most significant and immediate effects of the ballot initiative for the general public.” McCann, 354 Or at 707 (citation and internal quotation marks omitted). Petitioner contends that the “yes” result statement does not identify a significant and immediate effect of the measure, which is to require employ- ers to use a federal program to verify that new employees are authorized to work in the United States. We agree, in part, with petitioner’s argument for the reasons discussed above. The “yes” result statement, like the caption, focuses on the enforcement mechanism (the licensing scheme) to Cite as 358 Or 612 (2016) 621

the detriment of a “significant and immediate effect” of the measure. The “no” result statement similarly needs to be a “simple and understandable” statement of no more than 25 words that describes the results if the measure is rejected. ORS 250.035(2)(c). Petitioner contends that the Attorney General’s “no” result statement is inaccurate because it suggests that state law currently imposes the requirements that the “no” result statement describes. Petitioner’s point is well taken. The “no” result statement says that a “ ‘no’ vote maintains current law requiring employer to confirm employee’s employment authorization.” The use of the word “maintains” implies inaccurately that the “current law” that the “no” result statement describes is state law. A “no” vote will not “maintain” that law any more than a “yes” vote will change it. Rather, the federal statutory requirement that the “no” result statement describes will remain unchanged regardless of whether electors vote for or against IP 52. To be sure, this is not a case in which the failure to distinguish federal from state law requirements leaves an incorrect impression about what federal law would require if the proposed measure were not enacted. See Starrett/ Nichols v. Myers (S47079), 330 Or 139, 998 P2d 671 (2000) (illustrating that situation). However, the “no” result state- ment’s use of the word “maintains” implies incorrectly that “current law” finds its source in state rather than federal law.7 The point is admittedly a small one, but the Attorney General acknowledges that the “yes” and “no” result state- ments must be accurate. Because we are referring the cap- tion and the “yes” result statement to the Attorney General, we refer the “no” result statement to correct that inaccuracy. Finally, we turn to the summary. ORS 250.035(2)(d) requires that the ballot title contain a “concise and impar- tial statement of not more than 125 words summarizing the state measure and its major effect.” Petitioner raises four challenges to the summary. First, she contends that the summary should use the term “E-Verify” rather than 7 As petitioner notes, the “no” result statement uses the phrase “current law” twice. The first time it refers to federal law; the second time, it could refer to fed- eral law, state law, or both. 622 Kendoll v. Rosenblum

“internet-based federal program.” As explained above, sub- stantial compliance does not require one phrase rather than the other. Second, petitioner argues that the summary inac- curately implies that existing state law requires “employers to confirm employee’s employment authorization.” For the reasons stated above, we agree that the summary should reflect that federal law is the source of that requirement. Third, she objects to what she describes as an “unsupported and extraneous” sentence in the summary: “ ‘Nonconfirmation’ can result from employee ineligibility/ incorrect information.” As we understand petitioner’s objec- tion to that sentence, she concludes that it overemphasizes the possibility that an employee will receive a “nonconfirma- tion” and, in doing so, fails to provide an impartial explana- tion of the measure. The challenged sentence is part of a pas- sage discussing the remedial procedures that are available to an employee when E-Verify shows that the information entered into E-Verify does not match the information on file in the federal government’s records. The Attorney General responds that this sentence explains why an employee would need to “contest” a result. Although we agree with petitioner that nothing in the text of the measure supports the statement that non- confirmation can result from incorrect information, the point seems fairly obvious. If the employer or the system has incorrect information, then entering that information into E-Verify will produce an adverse result or “tentative non- confirmation,” which an employee may contest. Petitioner does not argue that the procedure for contesting an adverse result is not an appropriate subject for the summary to men- tion, and the sentence to which she objects is part of a larger explanation of that procedure. We are not persuaded that that sentence is either inaccurate or somehow partial, as petitioner argues. Finally, petitioner contends that the summary improperly fails to mention that IP 52 contains an exemp- tion for certain types of “domestic service” in private homes, arguing that this exception is “important.” Petitioner pro- vides no further explanation as to why this exception might Cite as 358 Or 612 (2016) 623

be more important than other exceptions. The summary accurately notes that the measure contains both “excep- tions” and “other terms.” Given the word limitation for sum- maries, we conclude that the summary is not deficient in failing to describe the limited exception for certain types of domestic service work. For the reasons stated above, the caption, the “yes” and “no” result statements, and the summary should be modified. Ballot title referred to Attorney General for modification.