
FILED: AUGUST 31, 2001 
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN NOVICK,
Petitioner,
	v.
HARDY MYERS,
Attorney General, State of Oregon,
Respondent.
(SC S48524)
	On petition to review ballot title.
	Submitted on the record July 19, 2001.
	Steven Novick, Portland, in propria persona, filed the
petition.
	Brendan C. Dunn, Assistant Attorney General, Salem, filed
the answering memorandum for respondent.  With him on the
answering memorandum were Hardy Myers, Attorney General, and
Michael D. Reynolds, Solicitor General.
	Before Carson, Chief Justice, and Gillette, Durham, Leeson,
Riggs, and De Muniz, Justices.
	DURHAM, J.
	Ballot title referred to Attorney General for modification.
	DURHAM, J.
	Petitioner challenges the ballot title certified by the
Attorney General for Initiative Petition 38 (2002).  ORS
250.085(2).  The proposed initiative measure would add the
following text to the Oregon Constitution:
		"Section 1. Taxpayers [sic] right to the highest
quality services at the most competitive price. 
Contracts for public construction projects, including
contracts to provide furnishings and/or fixtures for
public buildings, shall be awarded to the contractor
who submits the lowest bid to provide not less than the
quality of work and/or product necessary to meet or
exceed the specifications established for the project. 
This section applies to all public works projects
undertaken by or on behalf of the state or any
political subdivision of the state, including local
governments and taxing districts.


		  "(a) Nothing in the specifications or
requirements for a public works project shall include
any kind of project labor agreement; regulate the wages
or benefits paid to laborers or subcontractors; require
the contractor awarded the bid to pay wages or provide
benefits, the total of which is greater than the
contractor would be required to pay an employee if
performing work for any private sector customer or
client in Oregon; or give an advantage or preference to
a contractor that uses union workers over a contractor
that does not.
		"(b) Nothing in this 2002 Amendment requires a
government entity to award a contract to a bidder that
the government entity believes is not capable of
satisfactorily fulfilling the contract.
		"(c) If a government entity is required by federal
law to act in violation of this 2002 amendment, the
government entity shall only do so to the minimum
extent necessary to conform to the federal requirement.
		"(d) If any word, phrase, clause, or part of this
amendment is invalidated by a court of competent
jurisdiction, the remaining words, phrases, clauses,
and parts shall remain in full force and effect."

	For that proposed initiative measure, the Attorney
General certified the following ballot title:

"AMENDS CONSTITUTION.  FOR PUBLIC-WORKS
CONTRACTS, ELIMINATES: EXEMPTIONS FROM
COMPETITIVE BIDDING, REGULATING WAGES/
BENEFITS, REQUIRING LABOR AGREEMENTS
		"RESULT OF 'YES' VOTE: 'Yes' vote eliminates, for
public-works contracts: exemptions from competitive-bidding process; regulating wages/benefits (including
requiring prevailing wages); requiring labor
agreements; union-worker preferences.
		"RESULT OF 'NO' VOTE: 'No' vote retains laws
requiring awarding some (but not all) public contracts
to lowest responsible, qualified bidder; and payment of
prevailing wages/benefits and overtime.
		"SUMMARY: Amends constitution.  Current law
requires awarding certain public contracts through
competitive bidding to lowest responsible, qualified
bidder; exemptions allow other contracting methods for
other contracts; requires paying prevailing wages
(wages/benefits paid locally on similar projects) and
increased pay for overtime.  Measure requires that all
contracts for public-works projects (including
contracts for public buildings' furnishings, fixtures)
be awarded to contractor submitting lowest bid to
provide not less than the quality of work or product
necessary to meet project specifications.  Prohibits
project requirements that: include any project labor
agreement, regulate laborers' or subcontractors'
wages/benefits (including requiring prevailing wages),
require contractors to pay wages/benefits in amounts
greater than amounts that would be required in Oregon's
private sector, prefer contractors using union workers. 
Other provisions."

	ORS 250.035(2) sets out the requirements for a ballot
title caption, result statements, and summary for a state
initiative measure. (1)  Petitioner challenges the sufficiency of
each segment of the certified ballot title.  This court reviews
the Attorney General's ballot title for "substantial compliance
with the requirements of ORS 250.035."  ORS 250.085(5).
	The Attorney General's ballot title caption identifies
three types of legal provisions that the proposed measure would
"eliminate" "for public-works contracts."  Petitioner draws
attention to one of those provisions: "eliminates: * * *
requiring labor agreements."  He argues that that phrasing is
inaccurate because Oregon law currently does not require labor
agreements or, more accurately, project labor agreements, for
public works contracts. (2)  Thus, petitioner contends, the Attorney
General's caption misleads the voters into believing that, by
approving the proposed measure, they would "eliminate" a
"requirement" regarding labor agreements in public works
contracts that, in fact, does not exist.  Petitioner submits
that, for the sake of accuracy, the Attorney General should have
used the words "prohibits" or "repeals/prohibits," not the word
"eliminates."  Petitioner repeats his arguments in challenging
the phrase "eliminates * * * requiring labor agreements," which
also appears in the Attorney General's "yes" vote result
statement.
	The Attorney General responds that petitioner's
criticism is not well taken because the caption "plainly tells
the voters that the items following the word 'ELIMINATES' would
not be allowed under the proposed measure."  The Attorney General
also points out that the proposed measure refers to
"requirements" in the following passage:  "(a) Nothing in the
specifications or requirements for a public works project shall
include any kind of project labor agreement * * *." 
	The parties acknowledge that Oregon statutes impose
detailed procedures and requirements on the public contract
bidding process, ORS 279.027, and impose express standards of
responsibility on bidders who seek to become a "lowest
responsible bidder" on a public contract, ORS 279.029.  In
addition, ORS 279.350(1) requires any contractor or subcontractor
on a public works project to pay not less than the "prevailing
rate of wage," as defined in ORS 279.348(1).  ORS 279.352(1) also
requires that the specifications for every public works contract
include a prevailing rate of wage provision.  However, the
Attorney General does not take issue with petitioner's contention
that current Oregon law contains no requirement that a public
works contract contain a "labor agreement" or a "project labor
agreement."
	In Rice v. Myers, 326 Or 419, 423, 952 P2d 533 (1998),
this court stated:
		"When a ballot title caption purports to make a
representation regarding the present state of the law,
the representation must not be misleading."

Rice involved an argument that a certified caption, "Increases
Sentences for Persons with Prior Convictions for Listed Crimes,"
gave
	"a false impression that the measure would increase
sentences only for repeat offenders when, in fact, [the
measure] also would affect the sentences of first-time
offenders."

Id.  Applying the principle quoted above, this court stated:
		"[W]e agree that the Attorney General's certified
caption could leave a reasonable reader with the
misleading impression that the measure applies only to
repeat offenders.  To the contrary, Measure 53 imposes
a minimum 14-month sentence, and Measure 54 imposes a
minimum 18-month sentence, on persons who have never
been convicted of a 'major crime.'  The Attorney
General's caption is under-inclusive.  By describing
the impact of the measure on one class of offenders,
while excluding any reference to another class of
offenders, the Attorney General's certified caption
misleads the voters as to the full breadth of the
measure and fails reasonably to identify the subject
matter of the measure.  See, e.g., Witt v. Kulongoski,
319 Or 7, 872 P2d 14 (1994) (illustrating this court's
application of the foregoing principle in modifying an
under-inclusive and, therefore, inadequate ballot title
caption)."

Id. at 423-24.
	In determining whether the Attorney General's caption
in this proceeding "could leave a reasonable reader with a
misleading impression," id. at 423, about the effect of the
proposed measure on existing law, we begin with the ordinary
dictionary definition of the key terms in the caption. 
"Eliminate," in this context, means:
		"2a : to cast out : REMOVE, EXPEL, EXCLUDE, DROP,
OUST * * * b : to cause the disappearance of esp. as a
factor or element in a process or situation : get rid
of : ERADICATE * * *."

Webster's Third New Int'l Dictionary, 736 (unabridged ed 1993). 
The dictionary furnishes the following pertinent definitions of
"require," the word root for "requiring":
		"2a : to ask for authoritatively or imperatively :
claim by right and authority : insist upon usu. with
certainty or urgency : DEMAND, EXACT * * * 3a : to call
for as suitable or appropriate in a particular case   
* * * b : to demand as necessary or essential (as on
general principles or in order to comply with or
satisfy some regulation) : make indispensable * * * 5 :
to impose a compulsion or command upon (as a person) to
do something : demand of (one) that something be done
or some action taken : enjoin, command, or
authoritatively insist (that someone do something     
* * *."

Id. at 1929.
	In light of those definitions, we conclude that the
phrase "eliminates * * * requiring labor agreements," could leave
a reasonable reader with the misleading impression that the
proposed measure would remove a public agency's authority under
existing law to demand or compel acceptance of a "labor
agreement" by public works contractors.  As noted, current Oregon
law creates no such legal authority.  The Attorney General's
contention that "eliminates * * * requiring" only refers to a
prospective prohibition on described conduct fails to acknowledge
that those words, in this context, connote the eradication of a
public agency's existing legal authority to engage in the
described conduct, i.e., to demand acceptance of a labor
agreement by public works contractors.  Voters might evaluate the
proposed measure differently if they assumed, incorrectly, from
the phrasing of the caption, that Oregon public agencies were
exercising existing statutory authority to require public
contractors to accept labor agreements.  In accordance with the
discussion in Rice, we conclude that the likelihood that the
caption could leave a reasonable reader with a misleading
impression about the present state of Oregon law necessitates a
modification of the caption.
	The parties agree that substituting the term
"prohibits" for the term "eliminates" would resolve the problem
noted in the foregoing discussion.  However, we express no
opinion, at this point, as to the appropriate solution.  We refer
the ballot title to the Attorney General to make the necessary
change in the caption.  
	For the same reasons that we determined that the
caption required modification, we conclude that petitioner's
identical challenge to the Attorney General's "yes" vote result
statement is well taken.  We also refer that part of the ballot
title to the Attorney General for modification.
	Petitioner makes other challenges to the Attorney
General's caption, result statements, and summary. 
	We reject those challenges without further discussion. 
Except as noted above, the Attorney General's ballot title
satisfies this court's substantial compliance standard of review.
	For the reasons stated above, we refer the ballot title
to the Attorney General for modification.  ORS 250.085(8);
Flanagan v. Myers, 332 Or 318, ____, ____ P3d ____ (2001).
	Ballot title referred to Attorney General for
modification.



1. 	ORS 250.035(2) provides:
		"The ballot title of any state measure to be
initiated or referred shall consist of:


		"(a) A caption of not more than 15 words that
reasonably identifies the subject matter of the state
measure.  The caption of an initiative or referendum
amendment to the constitution shall begin with the
phrase, 'Amends Constitution,' which shall not be
counted for purposes of the 15-word caption limit;
		"(b) A simple and understandable statement of not
more than 25 words that describes the result if the
state measure is approved.  The statement required by
this paragraph shall include either the phrase, 'I
vote' or 'vote yes,' or a substantially similar phrase,
which may be placed at any point within the statement;
		"(c) A simple and understandable statement of not
more than 25 words that describes the result if the
state measure is rejected.  The statement required by
this paragraph shall not describe existing statutory or
constitutional provisions in a way that would lead an
average elector to believe incorrectly that one of
those provisions would be repealed by approval of the
state measure, if approval would not have that result. 
Any thing or action described both in the statement
required by paragraph (b) of this subsection and in the
statement required by this paragraph shall be described
using the same terms in both statements, to the extent
practical.  Any different terms must be terms that an
average elector would understand to refer to the same
thing or action.  The statement shall include either
the phrase, 'I vote' or 'vote no,' or a substantially
similar phrase, which may be placed at any point within
the statement; and
		"(d) A concise and impartial statement of not more
than 125 words summarizing the state measure and its
major effect."
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2. 	Oregon law does not provide a special definition of the
phrase "project labor agreement" that appears in section 1(a) of
the proposed measure.  Typically, that phrase describes an
agreement between the owner or project manager of a construction
project and one or more labor organizations.  Such agreements
commonly describe the employee working conditions, including
wages, grievance procedures, and union security provisions, that
will apply during the life of the project, as well as any
agreements protecting the project from labor strikes and
slowdowns.  See Building & Constr. Trades Council v. Associated
Bldrs. Of Contractors of Mass./R.I., Inc., 507 US 218, 221-22,
113 S Ct 1190, 122 L Ed 2d 565 (1993) (illustrating typical
provisions of project labor agreement).
		We recognize, as do the parties, that a project labor
agreement is distinguishable from a collective bargaining
agreement.  However, contrary to petitioner's contention, we
conclude that the Attorney General's phrase, "labor agreement,"
is, for purposes of the ballot title, an adequate shorthand
reference to a "project labor agreement" and is unlikely to cause
voter confusion.
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