
Filed: March 14, 2002 
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN NOVICK
and TIM NESBITT,
Petitioners,
	v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
TRICIA BOSAK
and JAMES SAGER,
Petitioners,
	v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S48525; S48535)
(Consolidated for Opinion)
	En Banc
	On petition objecting to modified ballot title.*
	Submitted on the record January 9, 2002.
	Paul B. Gamson, Smith, Gamson, Diamond & Olney, Portland,
filed the petition objecting to modified ballot title for
petitioners Bosak and Sager.
	Rolf C. Moan, Assistant Attorney General, Salem, filed the
Attorney General's response for respondent.  With him on the
response were Hardy Myers, Attorney General, and Michael D.
Reynolds, Solicitor General.
	No appearance by petitioners Novick and Nesbitt.
	DURHAM, J.
	Modified ballot title referred to Attorney General for
additional modification.
	*Novick/Bosak v. Myers, 333 Or 18, 36 P3d 464 (2001)
(referring ballot title for modification).
	DURHAM, J.
	These are two consolidated ballot title proceedings
regarding Initiative Petition 39 (2002).  In Novick/Bosak v.
Myers, 333 Or 18, 36 P3d 464 (2001), this court sustained in part
the challenges that petitioners Novick, Nesbitt, Bosak, and Sager
filed regarding the certified ballot title and referred the
certified ballot title to the Attorney General for modification. 
The Attorney General filed a modified ballot title, and
petitioners Bosak and Sagar (hereafter "petitioners") objected to
the modified ballot title.  ORAP 11.30(10).  At the court's
request, the Attorney General responded to petitioners'
objection, arguing that the court should deny the objection.  ORS
250.085(9) requires the court to review the Attorney General's
modified ballot title to determine whether it "substantially
complies with the requirements of ORS 250.035."
	The Attorney General's modified ballot title states:

 "AMENDS CONSTITUTION:  MAKES ACCEPTANCE
OF, PAYMENT FOR UNION REPRESENTATION
CONTINGENT ON WRITTEN REQUEST;
DECLARES INDIVIDUAL 'BARGAINING' RIGHT
		"RESULT OF 'YES' VOTE:  'Yes' vote makes
acceptance of or payment for union representation
contingent on written request; declares constitutional
right of individual employees to 'bargain' directly
with employers.
		"RESULT OF 'NO' VOTE:  'No' vote rejects written-request requirement for acceptance of, payment for,
union representation; rejects declaration of
constitutional right of individuals to 'bargain'
directly with employers.
		"SUMMARY:  Amends constitution.  If workplace is
represented by union, existing law precludes employer
and individual employees from making agreements that
are inconsistent with collective bargaining agreement,
requires union to represent all employees in unit,
allows union to negotiate agreement requiring all
employees to contribute to representation costs. 
Proposed amendment declares state constitutional right
of individual employees to 'bargain' directly with
employers about wages, benefits.  Proposed amendment
does not define 'bargain.'  Makes acceptance of and
payment for union representation or other services
contingent on written request from employee. 
Authorizes an employee to cancel a request for union
representation or other services with 30 days written
notice; any obligation to pay for representation or
other services shall cease on the thirty-first day
after notice is sent.  Other provisions."

	Petitioners argue that each section of the modified
ballot title is inadequate.  Petitioners' argument focuses on the
following sentence in the proposed initiative: (1)

		"Employees have the right to bargain directly as
individuals with their employers to establish the wage
and benefits the employee shall receive, and shall not
be required to accept or pay for representation or any
other service provided by a union or employee
association unless the representation or service was
requested in writing by the employee."

According to petitioners, the modified caption is inaccurate,
because, "[c]ontrary to the modified caption, this proposal would
allow an employee to obtain and accept union representation
without meeting the contingency, i.e., without making a written
request for it."  Petitioners contend that both result statements
and the summary contain the same flaw.
	The Attorney General argues that the following sentence
in this court's opinion in Novick/Bosak supports the modified
wording that he chose:

		"Instead, under the proposal, the employee's
request is a condition that must exist before the
employee must 'accept' or 'pay for' union
representation or service, and the employee may choose
whether to make the request."  

Id. at 24.  That sentence, however, explained only why the text
of the proposal did not justify the Attorney General's use of the
term "require" in the original ballot title.  Moreover, that
sentence preceded the court's analysis and conclusion that the
original ballot title had failed to identify one of the proposed
measure's two subject matters and that the original ballot title
required revision to resolve that deficiency.  Id. at 24-26.  We
will summarize below that analysis and conclusion.  
		In Novick/Bosak, this court explained that the proposed
measure's purported protection of workers from being required to
"accept" union representation was "deceptive, because the law
does not impose such an obligation on any employee."  Id. at 26. 
After discussing the legal context of the proposed initiative,
the court concluded that the proposal sought to change Oregon law
by enabling workers, by the device of refraining from requesting
union representation, to circumvent any contractual requirement
to pay for the cost of union representation.  The court stated:

		"The same is not true, however, with respect to
the proposal's prohibition on 'be[ing] required to    
* * * pay for' union representation or service.  Under
current law, unions and employers may negotiate union
security agreements that, in one form or another,
require bargaining unit employees who are not union
members to pay for the cost of union representation. 
In practical terms, a prohibition on such agreements
enables those employees to receive union representation
without cost, [Dale v. Kulongoski, 321 Or 108, 114, 894
P2d 462 (1995)] and represents a significant change in
Oregon law.  We agree with petitioner that that
prohibition is one of the two 'subject matters' that
the proposed measure addresses and that the Attorney
General's caption fails to identify that subject
matter."

Id. 
	The Attorney General's modified caption does not
identify the subject matter of the proposed measure discussed in
that passage.  Under the proposed measure, workers would be
entitled to receive union representation services free of charge
unless and until the workers requested those services in writing
and thereby exposed themselves to the obligation to pay for those
services.  The Attorney General's ballot title caption must
identify that subject matter to describe accurately the subject
matter of the proposed measure to the voters.  The phrasing that
the Attorney General has chosen continues to suggest, incorrectly
that, under the proposed measure, workers would receive union
representation (by "acceptance of" it) only if they first request
representation in writing.  That reference in the caption does
not identify a subject matter of the proposed measure and, in
context, is misleading.  The Attorney General's modified result
statements and summary are insufficient for the same reason.
	ORS 250.085(10)(b) provides:

		"If the Supreme Court determines that the modified
ballot title does not substantially comply with the
requirements of ORS 250.035, the court shall modify the
ballot title and certify the ballot title to the
Secretary of State or refer the modified ballot title
to the Attorney General for additional modification and
further proceedings under subsection (9) of this
section."

	We conclude that the caption, result statements, and
summary of the Attorney General's modified ballot title do not
substantially comply with the requirements of ORS 250.035 for the
reasons discussed above.  We refer the modified ballot title to
the Attorney General for additional modification and further
proceedings under ORS 250.085(9). 
	Modified ballot title referred to Attorney General for
additional modification.




1. 	The court's opinion in Novick/Bosak, 333 Or at 21-22,
sets out the full text of the proposed initiative.
Return to previous location.


