FILED: June 19, 2008
IN THE SUPREME COURT OF THE STATE OF OREGON
TOM CHAMBERLAIN
& BARBARA BYRD,
Petitioners,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055744)
En Banc
On petition to review ballot title filed
February 25, 2008; considered and under advisement on April 30, 2008.
Margaret S. Olney, of Smith, Diamond &
Olney, Portland, filed the petition for review.
Judy C. Lucas, Senior Assistant Attorney
General, Salem, filed the answering memorandum for respondent.  With her on the
memorandum were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor
General.
KISTLER, J.
Ballot title referred to the Attorney General
for modification.
KISTLER, J.
Petitioners seek review of the
Attorney General's certified ballot title for Initiative Petition 26 (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 26, if enacted,
would add the following text to the Oregon Revised Statutes:

"No employee shall be required to pay money to a union
or be represented by a union unless a majority of the subject employees have
voted in a secret ballot election to be represented by the union.  Due to the
serious potential for coercion and undue pressure, an employee's card check
authorization shall not be deemed a valid vote for unionization."

The Attorney General certified the
following ballot title for Initiative Petition 26:

"EMPLOYEES NOT
REQUIRED TO BE REPRESENTED BY UNION,
SHARE REPRESENTATION COSTS ABSENT
SECRET-BALLOT ELECTION
"RESULT OF 'YES' VOTE:  'Yes' vote
excuses employees from being represented by union, sharing representation
costs, unless majority of 'subject employees' (undefined) authorized union
representation in secret-ballot election.
"RESULT OF 'NO' VOTE:  'No' vote
retains law:  union approved by employees (by election or written
authorization) represents all employees; all employees may be required to share
representation costs.
"SUMMARY:  Under current law,
employees may choose union representation by majority of votes cast in a
secret-ballot election or through employer recognition based on written
authorizations from majority of employees.  Representation continues unless 30
percent of employees show support for election to decertify union and majority
vote to decertify.  Selected union must represent all employees, regardless of
union membership.  A collective bargaining agreement may require all employees
to contribute to representation costs.  Under measure, no employee may be
required to be represented by union or to contribute to costs of representation
unless a majority of 'subject employees' (not defined) have voted in a
secret-ballot election to be represented by the union.  Employee's 'card check
authorization' (not defined) is not a valid vote.  Other provisions."

Petitioners challenge the caption, the "yes" vote
result statement, and the summary.
Petitioners argue that the caption in
this case is deficient for the same reasons that we held the caption in Caruthers
v. Myers, ___ Or ___, ___ P3d ___ (decided this date), deficient.  See ORS
250.035(2)(a)  (requiring a "caption of not more than 15 words that
reasonably identifies the [measure's] subject matter").  In that case, as
in this one, the Attorney General sought to identify the subject matter of the
measure by describing the measure's major effects.  See 
Kain v. Myers,
336 Or 116, 121, 79 P3d 864 (2003) (noting that method as one way of
identifying a measure's subject matter).  In doing so, however, the Attorney
General has overstated one effect of the measure.  The measure would not
relieve private sector unions of their federal obligation to represent all the
employees in the bargaining unit, and its effect on public sector unions'
comparable state obligation is unclear.  The caption is deficient in overstating
that effect.  See Caruthers, 344 Or at ___ (explaining that
proposition).  We recognize that the measure in this case is more complex than
the measure at issue in Caruthers and thus presents a more difficult
challenge for the Attorney General to identify its subject matter in 15 words. 
However, the caption, as presently stated, is not accurate and must be
referred.
Petitioners also challenge the
"yes" vote result statement.  They contend that it is deficient for
the same reasons that we discussed in Caruthers.  See ORS
250.035(2)(b) (requiring a "simple and understandable statement of not
more than 25 words that describes the result if the state measure is
approved").  We agree.  Petitioners also argue that the "yes"
vote result statement should alert voters to the fact that the proposed measure
would effect a significant change in secret-ballot elections by replacing the
current simple majority standard for winning elections with an absolute
majority standard.  As petitioners note, existing law governing public sector
union elections provides that the winner of a secret-ballot election is the
entity that obtains the support of a "majority of the votes cast in [the]
election."  ORS 243.686(4).   By contrast, the measure provides that
"a majority of the subject employees" must vote to be represented by
a union before the employees can be required to be represented by the union and
share representation costs.
The Attorney General agrees that
"this measure would significantly change the way the majority vote is
determined in union representation elections."  He argues, however, that
the "yes" vote result statement adequately addresses the change by
stating that the measure requires a "majority of 'subject employees'
(undefined)" to elect union representation.
The decision in Crumpton v.
Kulongoski, 321 Or 279, 896 P2d 1211 (1995), answers the parties' dispute. 
The proposed measure in Crumpton would have amended the state
constitution to replace the simple majority requirement for passage of ballot
measures that raise government revenue with an absolute majority requirement.  Id.
at 281.  As this court explained, the measure would have replaced the
"traditional rule * * * that a majority of those voting will determine the
outcome of an election" with "a new rule" under which "all
persons who are eligible to vote * * * participate in the election"
whether they vote or not.  Id. at 281-82.  Under the measure,
"votes that are not cast at all * * * [would] count as 'no' votes"
instead of not counting.   Id. at 282.
The ballot title question (1) in Crumpton
stated that the measure would bar passage of all revenue-raising measures
"submitted to voters unless majority of registered voters approve."  Id.
at 281.  This court held that the question failed to comply with
statutory standards because "it fail[e]d to inform the voters" about
the "very significant change" that the measure would have made
regarding the type of majority required to raise government revenue.  Id.
at 282-83.  In the court's view, the reference to a "majority of
registered voters" did not "effectively" highlight that change
because it did not "make it clear that, for future passage of
[revenue-raising ballot measures], this measure will require 50 percent plus
one of all registered voters, including those who do not vote, not 50 percent
plus one of all registered voters who vote."  Id. at 282 (some
emphasis omitted).
The change that the proposed measure
in Crumpton would have imposed on the majority requirement for ballot
measures raising government revenue is identical to the change that the
proposed measure in this case would impose on the majority requirement for
union representation elections.  Following Crumpton, we hold that the
"yes" vote result statement must effectively highlight the shift from
a simple majority standard to an absolute majority standard that this measure
would impose.  We also conclude that the "yes" vote result statement
fails to effectively highlight that change.  It is true, as the Attorney
General notes, that the "yes" vote result statement refers to a "majority
of 'subject employees' (undefined)."  That reference, however, is similar
to the provision in the question in Crumpton referring to a
"majority of registered voters."  Just as the latter reference failed
to make clear the nature and scope of the change that the proposed measure in Crumpton
would have imposed, the wording on which the Attorney General relies in this
case also is insufficient.
Finally, petitioners challenge the
summary.  See ORS 250.035(2)(d) (requiring a "concise and impartial
statement of not more than 125 words summarizing the state measure and its
major effect").  Petitioners argue that the summary, like the
"yes" vote result statement, is insufficient for the reasons stated
in Caruthers.  We agree.  They also argue that the summary is
insufficient because it fails to effectively highlight the change that the
proposed measure would impose on the type of majority necessary to win a union
representation election.  The Attorney General contends that the summary
adequately addresses that change because it contains one statement mentioning
that, "[u]nder current law, employees may choose union representation by
majority of votes cast in secret-ballot election," and a second statement
indicating that the measure requires the support of "a majority of 'subject
employees' (not defined)."
In our view, the two statements on
which the Attorney General relies do not satisfy Crumpton, viz.,
they do not "effectively" highlight the significant change that the
measure would make.  Although the first statement identifies the current state
of the relevant law and the second statement identifies what the relevant law
will be if the measure is enacted, the first sentence is located at the
beginning of the summary and the other at the end.  Nothing in the summary
highlights the causal connection between the measure's enactment and the change
described in the statements, or indeed states that there will be any change. 
Following Crumpton, we hold that the summary must be modified. (2)
Ballot title referred to the Attorney
General for modification.


1. At the time of this court's decision in Crumpton, the
"yes" vote result statement and "no" vote result statement
were combined in a single question.  The legislature later amended the statute
to omit the question in favor of separate "yes" and "no"
vote result statements.  See 1995 Or Laws, ch 534, § 1 (making change).
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2. We have considered other challenges that petitioners make to the
ballot title and reject them without further discussion.
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