Nesbitt v. Myers

Opinion

Filed: June 5, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

TIM NESBITT,
TRICIA BOSAK, and KRIS KAIN,

Petitioners,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S50078)

On petitions objecting to modified ballot title.

Submitted on the record April 14, 2003.

Lynn-Marie Crider, Salem, filed the petition objecting to modified ballot title for petitioner Nesbitt.

Margaret S. Olney, of Smith, Gamson, Diamond & Olney, Portland, filed the petition objecting to modified ballot title for petitioners Bosak and Kain.

Brendan C. Dunn, Assistant Attorney General, Salem, filed the response to objections for respondent. With him on the response were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.

GILLETTE, J.

Modified ballot title referred to the Attorney General for modification.

This ballot title review proceeding is before us again following our previous referral for modification of the Attorney General's certified ballot title for Initiative Petition 22 (2004). Nesbitt v. Myers, 335 Or 219, 224-27, 64 P3d 1133 (2003). The Attorney General has prepared and filed a modified ballot title, which petitioners now challenge. See ORS 250.085(9) (prescribing procedure for modifying ballot title after referral). ⁽¹⁾ We find certain of petitioners' objections to be well taken and, therefore, refer the modified ballot title to the Attorney General.

In our earlier opinion, we described the proposed measure as follows:

"The proposed measure, if adopted, would amend the Oregon Constitution by adding a section forbidding use 'for a political purpose,' as the proposed measure defines that phrase, of money deducted from an employee's paycheck, unless the employee consents to such use annually and in writing. The proposed measure contains definitions of certain of its terms, prescribes certain administrative requirements that must be followed by those who receive money from payroll deductions if the proposed measure is adopted, and prescribes the various consequences that are to follow if any of its substantive provisions is violated."

Nesbitt, 335 Or at 221. For convenience, we set out the Attorney General's modified ballot title for the proposed measure:

"AMENDS CONSTITUTION: ENTITIES RECEIVING
PAYROLL DEDUCTIONS CANNOT USE THEM
FOR 'POLITICAL PURPOSES' (DEFINED) WITHOUT
EMPLOYEE'S WRITTEN AUTHORIZATION

"RESULT OF 'YES' VOTE: 'Yes' vote requires entities receiving payroll deductions to obtain employee's written, annual authorization and comply with additional limitations before using deductions for 'political purposes' (defined).

"RESULT OF 'NO' VOTE: 'No' vote rejects requirement that entities receiving payroll deductions obtain employee's authorization and comply with additional limitations before using payroll deductions for 'political purposes' (defined).

"SUMMARY: Amends Constitution. Measure prohibits entities receiving payroll deductions from using those deductions for 'political purposes' (defined below) without employee's permission annually granted on form used for this purpose; legislature must ensure personal information is neither on form nor publicly available. Measure defines deductions used for 'political purposes' as deductions for which any portion is: contributed to candidate, political committee, party; or spent supporting/opposing ballot measure or public-office candidate. Deductions are not used for 'political purposes' when spent lobbying, unless spent on communications identifying public-office candidate within 60 days of election. Entities receiving payroll deductions to be used for "political purposes" (defined above) must place them in segregated accounts and cannot commingle political funds with other funds. Establishes penalties for violations. Other provisions."

Our review of a modified ballot title has the same scope as our review of a certified ballot title, i.e., we review to "determine whether the modified ballot title substantially complies with the requirements of ORS 250.035." ORS 250.085(9). Petitioners assert that the Attorney General's modified ballot title in this case fails that test with respect to each of the ballot title's four sections -- the caption, "yes" vote result statement, "no" vote result statement, and summary. We address petitioners' contentions in that order.

THE CAPTION

As noted, the Attorney General's modified ballot title caption states:

"AMENDS CONSTITUTION: ENTITIES RECEIVING
PAYROLL DEDUCTIONS CANNOT USE THEM
FOR 'POLITICAL PURPOSES' (DEFINED) WITHOUT
EMPLOYEE'S WRITTEN AUTHORIZATION"

Petitioner Nesbitt notes that this court in its earlier opinion concerning the certified ballot title stated that "the proposed measure focuses wholly on what organizations that receive money through payroll deductions may do with that money," Nesbitt, 335 Or at 224, and that the "proposed measure would enact a complete regime of limitations on the use for 'political purposes' of any funds obtained by any organization, public or private, through payroll deduction." Id. at 225. It follows from those statements, petitioner Nesbitt argues, that "the ballot title must clearly describe this new regime and must tell the voters that current law imposes no such restrictions on the use of money -- whether [the money] is received via payroll deduction or by any other means".

Based on the foregoing, petitioner Nesbitt argues that the Attorney General's caption fails to "reasonably identif[y] the subject matter of the state measure," as ORS 250.035(2)(a) requires. He asserts that the flaw in the modified caption is that it describes the various unions, businesses, charities, and others who presently receive money through voluntary payroll deductions by the phrase "entities receiving payroll deductions." Petitioner Nesbitt argues that the Attorney General instead should use what he asserts is an accurate descriptive phrase, viz., "organizations receiving money by payroll deduction." The Attorney General's choice of phrase, he maintains, is impermissibly obscure.

We disagree with petitioner Nesbitt's premise that, even when the phrase is read in context, the average voter will read "entities receiving payroll deductions" to mean something different than "organizations receiving money by payroll deduction." In our view, the former phrase is a permissible variant of the latter. Certainly, we cannot say that the choice of one permissible choice of phrase over another permissible choice means that the Attorney General's modified caption fails to comply substantially with ORS 250.035(2)(a). Accordingly, we decline to require the Attorney General further to modify the wording of his modified caption. ⁽²⁾

THE "YES" VOTE RESULT STATEMENT

As noted, the Attorney General's modified "yes" vote result statement provides:

"RESULT OF 'YES' VOTE: 'Yes' vote requires entities receiving payroll deductions to obtain employee's written, annual authorization and comply with additional limitations before using deductions for 'political purposes' (defined)."

Petitioner Nesbitt asserts that the Attorney General's "yes" vote result statement "is misleading, if not actually inaccurate." The difficulty, he asserts, arises out of the fact that, as now written, the modified "yes" vote results statement

"would lead one to assume that the conditions [that the proposed measure would place on spending money for political purposes] may be met as a matter of course -- that the issue is when political spending can occur rather than whether it can occur. In addition, the language [of the modified 'yes' vote result statement] does not state that an organization that receives payroll-deducted money cannot spend for political purposes unless it obtains a specific written authorization of political spending."

(Emphasis in original.) He then proposes wording that he asserts would meet his objections.

Our problem with that argument is that we do not read the Attorney General's modified "yes" vote result statement the same way that petitioner Nesbitt does. Respecting his first concern, we perceive no intimation in the statement that suggests that meeting the conditions the proposed measure would set would be simple or routine. Respecting his second concern, we read the statement to say specifically what he wants it to say, viz., that the employee's written, annual authorization must be for the use of a payroll deduction for political purposes. Perhaps that proposition could be made even more explicit by adjusting the wording in the statement to more directly connect "written, annual authorization" with "deductions for political purposes." But the Attorney General's failure to do so does not mean that the modified "yes" vote result statement fails to comply substantially with the requirements of ORS 250.035(2)(b). We decline to require the Attorney General further to modify the wording of his modified "yes" vote result statement. ⁽³⁾

THE "NO" VOTE RESULT STATEMENT

As noted, the Attorney General's modified "no" vote result statement provides:

"RESULT OF 'NO' VOTE: 'No' vote rejects requirement that entities receiving payroll deductions obtain employee's authorization and comply with additional limitations before using payroll deductions for 'political purposes' (defined)."

All petitioners assert that, as petitioner Nesbitt puts it, the Attorney General's "no" vote result statement "simply tells the voters that a 'no' vote will reject what has already been described [as] the result of the 'yes' vote." That, petitioner argues, means that the "no" vote result statement provides no further information to the voter, thereby rendering the statement essentially pointless. In so arguing, petitioners rely on Kain v. Myers

, 335 Or 228, 64 P3d 1129 (2003), a case also involving a proposed initiative measure relating to permissible use of money obtained by payroll deductions. In that case, as here, the Attorney General's "no" vote result statement essentially mirrored his "yes" vote result statement, introduced by the word "reject." This court observed: