Markley v. Rosenblum

413 P.3d 966, 362 Or. 531
CourtOregon Supreme Court
DecidedMarch 8, 2018
DocketSC S065551 (Control); SC S065552
StatusPublished
Cited by5 cases

This text of 413 P.3d 966 (Markley v. Rosenblum) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markley v. Rosenblum, 413 P.3d 966, 362 Or. 531 (Or. 2018).

Opinion

KISTLER, J.

**533Two sets of petitioners have challenged the Attorney General's certified ballot title for Initiative Petition 28 (IP 28). We review the ballot title for substantial compliance with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we conclude that the ballot title does not substantially comply with ORS 250.035(2) and refer the ballot title to the Attorney General for modification.

Article I, section 8, of the Oregon Constitution prohibits laws "restraining the free expression of opinion, or restricting the right to speak, write, or print free on any subject whatever." See State v. Robertson , 293 Or. 402, 649 P.2d 569 (1982) (interpreting Article I, section 8 ). This court held in Vannatta v. Keisling , 324 Or. 514, 931 P.2d 770 (1997) ( Vannatta I ), that making contributions to candidates is protected expression and that laws limiting the amount of contributions that a person, corporation, or union makes to candidates or political committees violate Article I, section 8.324 Or. at 537-39, 931 P.2d 770 ; see Vannatta v. Oregon Government Ethics Comm. , 347 Or. 449, 222 P.3d 1077 (2009) (clarifying Vannatta I ).

IP 28, if adopted, would add an exception to the constitutional protections recognized in Vannatta I . More specifically, IP 28 would add the following sentence to Article I, section 8 :

"Laws consistent with the freedom of speech guarantee of the United States Constitution may regulate contributions and expenditures, of any type or description, to influence the outcome of any election; provided, that such laws are adopted or amended by initiative or by an elected legislative body by a three-fourths vote."

A law will come within the exception set out in IP 28 if three conditions are met: the law must (1) be "consistent with the freedom of speech guarantee of the United States Constitution"; (2) "regulate contributions and expenditures * * * [made] to influence the outcome of any election"; and (3) be "adopted or amended by initiative or by an elected legislative body by a three-fourths vote."

**534The Attorney General certified the following ballot title for IP 28:

"Amends Constitution: Allows laws regulating contributions/expenditures *969made to influence elections; Measure 47 (from 2006) becomes law
"Result of 'Yes' Vote: 'Yes' vote amends constitution, allows laws regulating contributions and expenditures to influence election outcomes; triggers Measure 47 (from 2006), regulating campaign expenditures, requiring certain disclosures.
"Result of 'No' Vote: 'No' vote retains Oregon Constitution's existing free-expression provision; Measure 47 (from 2006), regulating campaign expenditures, requiring certain disclosures, remains inoperative.
"Summary: Amends Constitution. The Oregon Supreme Court has interpreted the Oregon Constitution's free-expression provision ( Article I, section 8 ) to prohibit limits on many political campaign contributions and expenditures. The proposed measure amends Article I, section 8 to allow laws that regulate contributions/expenditures to influence elections. Such laws must be adopted or amended by initiative or by three-fourths vote by legislative body. If amendment passes, Measure 47 (enacted by voters in 2006) will become law and will alter Oregon's current election laws. Measure 47 limits campaign contributions/expenditures, establishes new reporting/advertising disclosure requirements for the sources and amounts of campaign contributions/expenditures. Laws regulating campaign contributions and expenditures (including Measure 47) still must comply with the First Amendment to the United States Constitution."

Petitioners challenge the caption, the "yes" and "no" result statements, and the summary. We begin with their challenges to the caption.

ORS 250.035(2)(a) provides that a ballot title must contain a "caption of not more than 15 words that reasonably identifies the subject matter of the state measure." The "subject matter" of a ballot title is "the 'actual major effect' of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words)." Lavey v. Kroger , 350 Or. 559, 563, 258 P.3d 1194 (2011) (citation **535omitted). To identify the "actual major effect" of a measure, we consider the "changes that the proposed measure would enact in the context of existing law." Rasmussen v. Kroger , 350 Or. 281, 285, 253 P.3d 1031 (2011).

Petitioners challenge the caption on primarily three grounds. First, they argue that the caption should not mention Measure 47 (2006) because the subject of IP 28 is broader than its effect on a specific law and, more importantly, that effect is at best speculative.

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Related

Multnomah County v. Mehrwein
462 P.3d 706 (Oregon Supreme Court, 2020)
Hopkins/Starrett v. Rosenblum
460 P.3d 503 (Oregon Supreme Court, 2020)
Parrish v. Rosenblum
450 P.3d 973 (Oregon Supreme Court, 2019)
Fletchall v. Rosenblum
442 P.3d 193 (Oregon Supreme Court, 2019)
Markley v. Rosenblum
418 P.3d 13 (Oregon Supreme Court, 2018)

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Bluebook (online)
413 P.3d 966, 362 Or. 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markley-v-rosenblum-or-2018.