FILED: December 6, 2007
IN THE SUPREME COURT OF THE STATE OF OREGON
LARRY WOLF
and JERRY CARUTHERS,
Petitioners,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S55264)
En Banc
On petition to review ballot title.
Submitted on the record October 25, 2007.
Margaret S. Olney, of Smith, Diamond & Olney, Portland, filed the petition for
petitioners.
Douglas F. Zier, Assistant Attorney General, Salem, filed the answering
memorandum for respondent.  With him on the memorandum were Hardy Myers,
Attorney General, and Mary H. Williams, Solicitor General.
BALMER, J.
Ballot title referred to Attorney General for modification.
BALMER, J.
This ballot title review proceeding brought under ORS 250.085(2) concerns
the Attorney General's certified ballot title for a proposed initiative measure that the
Secretary of State has denominated as Initiative Petition 114 (2008).  The proposed
measure would amend the Oregon Constitution to provide that no measure increasing or
adding any new property tax "may be approved, except in a General Election or other
election in which not less than sixty percent of the voters registered to vote * * * cast a
ballot." (1)
Petitioners are electors who timely submitted written comments to the
Secretary of State concerning the Attorney General's draft ballot title and who therefore
are entitled to seek review in this court of the resulting certified ballot title.  See
ORS 250.085(2) (stating that requirement).  We review the Attorney General's certified
ballot title to determine whether it substantially complies with the requirements of ORS
250.035(2)(a) to (d).  ORS 250.085(5).  In the present case, we conclude that the certified
ballot title fails to comply in two respects.  We therefore refer the ballot title to the
Attorney General for modification.
The Attorney General certified the following ballot title:

"AMENDS CONSTITUTION: REQUIRES SUPERMAJORITY IN SOME
ELECTIONS TO APPROVE NEW, RENEWED, INCREASED
PROPERTY TAXES, NEW BOND MEASURES
"RESULT OF 'YES' VOTE:  'Yes' vote allows voter approval of
certain property tax and new bond measures only at election with sixty-percent voter participation or at general election.
"RESULT OF 'NO' VOTE:  'No' vote retains current law allowing
approval of certain property tax, bond measures only at election with fifty-percent voter participation or at general election.
"SUMMARY:  Amends constitution.  Current law, commonly
referred to as the 'double-majority' provision, requires that measures
increasing property taxes or imposing new property taxes, including certain
bonded indebtedness, can be approved only in election where at least fifty
percent of registered voters cast ballots or in general election held in
November of an even-numbered year; all other elections are determined by
a majority of those who vote, with no voter turnout requirements.  Property
tax measures raise money for local government services, including schools,
law enforcement, libraries, parks, other uses.  Measure increases required
voter turnout level from fifty percent to sixty percent of registered voters in
an election, other than general election, that increases, imposes, or renews
property taxes, or adopts new bond measures.  Other provisions."

Petitioners challenge the Attorney General's caption, "yes" vote result
statement, and summary.  Petitioners' first objection to the caption concerns the way that
the Attorney General uses the word "supermajority."  The caption states, in part, that the
proposed measure "[r]equires supermajority in some elections to approve new, renewed,
increased property taxes, new bond measures."  Petitioners argue that the reference to
"supermajority" in the caption is misleading because it suggests that the proposed
measure requires that new tax measures be approved by a supermajority, while the
supermajority requirement in the proposed measure applies to voter turnout.  The
Attorney General does not disagree with petitioners' interpretation of the proposed
amendment, but asserts that the caption is not likely to confuse voters.  The Attorney
General also points out that the other sections of the ballot title explicitly state that the
supermajority requirement applies only to voter turnout.
We agree with petitioners.  No one disputes that the supermajority
requirement in Initiative Petition 114 applies to voter turnout and that the measure would
not change the usual "simple majority" requirement for a tax measure to pass.  With that
understanding, we think it obvious that the wording in the caption that the measure
"requires supermajority * * * to approve" certain taxes and bond measures is misleading. 
The measure does not change the "approval" requirement for those tax measures from a
simple majority to a supermajority; rather, it changes the turnout requirement to a
supermajority.  Moreover, the accurate description of the proposed amendment in the
other sections of the ballot title, while helpful, does not correct the misleading nature of
the caption.  See Kain v. Myers, 333 Or 497, 502-03, 41 P3d 1076 (2002) (rejecting
Attorney General's claim that more detailed summary excused failure of caption
accurately to describe subject matter of proposed measure).  
Petitioners also challenge the statement in the certified caption that the
supermajority turnout requirement applies "in some elections."  As noted, the proposed
measure would provide that no new property tax or increase in an existing property tax
could be approved "except in a General Election or other election in which not less than
sixty percent of the voters registered to vote * * * cast a ballot."  Petitioners assert that the
turnout requirement applies to all elections, while the Attorney General interprets the
requirement to apply only to "other elections" and not to general elections.  Because that
disagreement over the proper interpretation of the measure underlies petitioners' challenge
to the certified caption, we first discuss the parties' differing interpretations of the
proposed measure and then examine petitioners' objection to the certified caption.  
As noted, the Attorney General interprets the turnout requirement to apply
only to "other election[s]" and not to a general election.  The Attorney General first
argues that the structure of the measure supports his conclusion because it parallels the
existing constitutional requirement for certain local tax measures, which requires that
such measures be approved in a general election or in an election in which at least 50
percent of registered voters vote.  See Or Const, Art XI, § 11(8) (so providing). 
According to the Attorney General, Initiative Petition 114 would increase from 50 percent
to 60 percent the turnout requirement for local tax measures submitted to the voters at an
election other than a general election, but, consistent with the existing provision, would
not impose any turnout requirement on local tax measures submitted to the voters at a
general election.  Second, the Attorney General relies on the rule of the last antecedent to
argue that the qualifying phrase "in which not less than sixty percent of the voters
registered to vote * * * cast a ballot" modifies only the last antecedent -- "other
election" -- and not the earlier words "General Election."  See Baker v. City of Lakeside,
343 Or 70, 75, 164 P3d 259 (2007) (describing rule of last antecedent).  Finally, the
Attorney General argues that, if the drafters of the proposed measure had intended the
turnout requirement to apply to all elections, there would have been no reason to mention
both "general elections" and "other elections," and the measure simply would have
described the turnout requirement as applying to "any" or "all" property tax elections.
Petitioners acknowledge that the drafters of Initiative Petition 114 may have
intended that the turnout requirement apply only to elections other than general elections,
but they argue that the words of the proposed measure impose that requirement on both
kinds of elections.  At a minimum, petitioners assert, the scope of the turnout requirement
is ambiguous.  Petitioners respond to the Attorney General's argument about the structure
of the existing constitutional turnout requirement by pointing out that the proposed
measure does not parallel Article XI, section 11(8), because it does not distinguish
"general elections" from "other elections" by placing them in different subsections, as the
existing constitutional provision does, or by utilizing some punctuation or grammatical
device.  Petitioners argue that, given the way the drafters structured the sentence, for the
turnout requirement unambiguously to apply only to "other elections," and not to general
elections, the proposed measure would have to set the reference to "other elections" apart
as an independent clause by rewording the measure.  For example, petitioners suggest,
had the measure used the words "except in a General Election or in other elections in
which not less than sixty percent" of registered voters voted, the meaning would be
unambiguous.  
Based on their interpretation of the proposed measure, petitioners assert that
the statement in the caption that the turnout requirement applies "in some elections" fails
accurately to identify the subject of the measure.  In the alternative, petitioners argue that
the scope of the turnout requirement at least is uncertain and that the caption must identify
that uncertainty.  The Attorney General responds that petitioners' proposed interpretation
of the measure is unreasonable and that his caption stating that the turnout requirement
applies "in some elections" accurately describes the subject of the proposed measure.
Disputes about the proper interpretation of proposed initiative measures
often arise in ballot title challenges.  When parties reasonably dispute the meaning of a
provision in a proposed measure, that dispute may lead to disagreement as to the subject
of the measure, the result if the measure were to pass, and the effect of the
measure -- matters that must be described, respectively, in the caption, "yes" vote result
statement, and summary of the ballot title.  See ORS 250.035(2) (describing required
contents of ballot title).  This court consistently has declined to speculate -- or to permit
the Attorney General to speculate -- about the possible effects of a proposed measure. 
Pelikan/Tauman v. Myers, 342 Or 383, 389, 153 P3d 117 (2007) (so stating).  As to the
interpretation of a proposed measure's provisions, this court has stated that "we do not
predict or speculate about potential applied interpretations of a measure before the history
of its adoption is complete."  Baker v. Keisling, 312 Or 385, 394, 822 P2d 1162 (1991);
see also Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 41, 902 P2d 1143
(1995) ("[I]t is not the court's role to engage in an abstract exercise of pre-enactment
constitutional interpretation.").  
At the same time, we have recognized that the Attorney General's role in
preparing a ballot title, and this court's role in reviewing the ballot title if it is challenged,
"includes a certain amount of basic interpretation," Christ/Tauman v. Myers, 339 Or 494,
500, 123 P3d 271 (2005), and we have expressly rejected some earlier cases suggesting
that the Attorney General must avoid any interpretation at all of a proposed measure.  Id.
Christ/Tauman underscores the obvious point that, although neither this court nor the
Attorney General may speculate about the possible secondary effects of a proposed
measure or adopt one of several plausible interpretations of the measure for purposes of
the ballot title, the preparation of a ballot title necessarily requires some level of
interpretation of the measure.  
When confronted with the narrower problem of the meaning of a specific
provision in a proposed measure that is subject to two or more plausible interpretations,
we ordinarily have declined to choose (or to permit the Attorney General to choose) one
of those interpretations for purposes of the ballot title.  "When it appears that more than
one reading of the wording of a contested measure is plausible, our precedents are clear
that it is inappropriate for this court, at this stage, to resolve such an ambiguity in the
measure."  Bartsch v. Kulongoski, 322 Or 335, 339, 906 P2d 815 (1995).  See also Carson v. Myers, 326 Or 248, 253, 951 P2d 700 (1998) (declining to "speculate among
arguable meanings of [terms used in] a measure").
In some circumstances when a term in a measure is ambiguous, the
appropriate solution for purposes of drafting the ballot title may be to use the term that is
used in the measure.  Depending upon the particular term at issue, it also may be
appropriate to identify that term as such by putting it in quotation marks.  See, e.g., Morgan v. Myers, 342 Or 165, 169, 149 P3d 1160 (2006) (adding quotation marks around
words "conduct" and "personal behavior" in ballot title involving free speech rights, when
terms were undefined in measure itself).  Also, depending on the particular measure and
the term (and the applicable word limits), it may be appropriate to indicate whether or not
the term is defined in the measure.  See, e.g., Martin/Bendl v. Myers, 340 Or 569, 572,
135 P3d 315 (2006) (certifying ballot title using phrase from measure identified by
quotation marks and modified by word "undefined" in parentheses); Hunnicutt v. Myers,
340 Or 83, 86, 127 P3d 1182 (2006) (approving ballot title summary that used words
from measure not identified by quotation marks and modified by word "defined" in
parentheses); see also Hunnicutt v. Myers, 342 Or 491, 495-96, 155 P3d 870 (2007)
(rejecting argument that term from measure used in ballot title should be identified as
"undefined," because meaning of word, "in context, is sufficiently clear that no
signal * * * is necessary to achieve substantial compliance with statutory standards"). 
However, merely using terms taken from the measure itself does not necessarily meet the
statutory requirements for a ballot title, and the Attorney General is required to draft a
ballot title that accurately describes the subject matter of the proposed measure, the result
if the measure were to pass, and the major effect of the measure.  See Bartsch, 322 Or at
342, 343-45 (Durham, J., concurring) ("If an ambiguity in a measure leaves its intention
unclear, the Attorney General and this court do not satisfy [their statutory obligations] by
repeating the measure's obscure terms in the ballot title, and thereby merely perpetuating
those doubts.").
With that background, we return to the proposed measure that is the subject
of the ballot title at issue here.  As discussed above, the Attorney General advances
several reasonable arguments in support of his conclusion that the turnout requirement in
the proposed measure does not apply to general elections.  However, petitioners' contrary
arguments are not without merit.  As petitioners point out, the structure of the proposed
measure does not parallel the current constitutional requirement respecting the elections
at which a local property tax measure may be approved, which plainly imposes a turnout
requirement on elections other than general elections, but not on general elections. 
Moreover, petitioners' argument that the turnout requirement in the proposed measure
applies to general elections is a grammatically permissible reading of the text of the
measure, and it draws some further support from the "whereas" clauses with which the
measure begins.
Our review of the turnout requirement in the proposed measure convinces
us that it can plausibly be interpreted both as applying to general elections and as not
applying to general elections.  The Attorney General, however, chose to interpret that
ambiguous requirement as applying only to elections other than general elections and,
therefore, stated in the certified caption that the turnout requirement applies "in some
elections."  In our view, it was inappropriate for the Attorney General, at this stage, to
resolve the ambiguity in the turnout requirement contained in the measure.  See Bartsch,
322 Or at 339 (reaching similar conclusion under analogous circumstances).  The caption
thus does not accurately convey the uncertain scope of the measure and must be modified.
That leaves the issue of what changes the Attorney General should make to
the caption to remedy the deficiency that we have identified.  Petitioners suggest that the
uncertain scope of the turnout requirement can be accommodated in the caption by stating
that a property tax measure "cannot become law without sixty percent voter turnout,
possible exceptions."  That suggestion, however, has its own shortcomings, as the phrase
"possible exceptions" indicates that there may be exceptions to the turnout requirement
for elections other than general elections when, under the proposed measure, there plainly
are no such exceptions.
As noted previously, it sometimes is possible to use the words of the
measure itself in the caption to describe the subject of an ambiguous measure while
avoiding speculation about how the measure might be interpreted in some future legal
proceeding.  That course does not always result in an accurate description of the "subject"
of the measure.  In any event, the Attorney General has an obligation under
ORS 250.035(2)(a) to inform voters, as part of describing the subject of the measure,
about the elections to which the turnout requirement applies.  The Attorney General may
use some version of the words in the measure or he may use some other words to convey
the idea that the measure is unclear on that point, as long as the resulting caption satisfies
ORS 250.035(2)(a). 
Petitioners also challenge the "yes" vote result statement and the summary
because both of those parts of the ballot title, like the caption, state that the turnout
requirement does not apply to general elections.  For the reasons set out above, we agree
with petitioners.  Those parts of the ballot title must be modified.  Again, the Attorney
General may use some version of the words of the measure to describe the "result" of the
measure in the "yes" vote result statement and the "effect" of the measure in the summary,
respectively, as long as the resulting ballot title satisfies statutory requirements. 
Alternatively, the Attorney General may state that the "result" and the "effect" of the
measure, with respect to the application of the turnout requirement to general elections, is
unclear, if that statement satisfies statutory requirements. (2)
For the foregoing reasons, we conclude that the Attorney General's caption,
"yes" vote result statement, and summary do not substantially comply with
ORS 250.035(2)(a), (b), and (d) and must be modified.  Ballot title referred to Attorney
General for modification.


1. The proposed measure would add the following section to the Oregon
constitution:

"Whereas voters should not be burdened with a property tax increase adopted in
an election with low voter participation; and whereas the only election date
routinely attracting more than 60 percent statewide voter turn-out is the regularly
occurring General Election, therefore, on or after the effective date of this 2008
Amendment, no measure increasing ad valorem property taxes or imposing a new
property tax, including any new bond measure, may be approved, except in a
General Election or other election in which not less than sixty percent of the
voters registered to vote in the relevant jurisdiction as of the date of the election
cast a ballot.  For purposes of this section, 'General Election' means an election
held on the first Tuesday after the first Monday of November of an even
numbered year.  For purposes of this section, 'a new property tax' includes the
renewal of an expiring property tax."

Return to previous location.



2. Petitioners raise one other objection to the "yes" vote result statement certified by
the Attorney General; we reject that argument without discussion.
Return to previous location.



