FILED: December 24, 2009
IN THE SUPREME COURT OF THE STATE OF OREGON
JERRY
CARUTHERS
and GAIL RASMUSSEN,
Petitioners,
v.
JOHN
R. KROGER,
Attorney General,
State of Oregon,
Respondent.
S057803 (Control)
CLAIRE SYRETT
and DAVID FIDANQUE,
Petitioners,
v.
JOHN
R. KROGER,
Attorney General,
State of Oregon,
Respondent.
S057815 (Cases consolidated)
En
Banc
On
petition to review ballot title filed September 21, 2009; considered and under
advisement on December 2, 2009.
Thomas
K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the
petition and the reply memorandum for petitioners Jerry Caruthers and Gail
Rasmussen.
David
J. Elkanich, Hinshaw & Culbertson LLP, Portland, filed the petition and the
reply memorandum for petitioners Claire Syrett and David Fidanque.  With him on
the reply memorandum was Calon Russell.
Christina
M. Hutchins, Senior Assistant Attorney General, Salem, filed the answering
memorandum for respondent.  With her on the answering memorandum were John
R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
BALMER,
J.
The
ballot title is referred to the Attorney General for modification.             
BALMER, J.
These two ballot title proceedings,
which we consolidated for opinion and disposition, seek review of the Attorney
General's certified ballot title for Initiative Petition 52 (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 52, if enacted,
would amend Oregon law in two different respects.  First, it would provide that
neither the state, nor any political subdivision of the state, may adopt a
statute, regulation, or order that would "prohibit or limit any public
official or public employee from cooperating with federal agencies or officials
in the enforcement of federal immigration law."  Second, it would direct
state election officials to "require satisfactory evidence of United
States citizenship from any applicant who is registering to vote for the first
time as an Oregon voter" and would specify the documents that would
constitute such evidence of citizenship.
The Attorney General certified the
following ballot title for Initiative Petition 52:

"Allows state/local cooperation
with immigration enforcement; requires certain documentation of citizenship for
voter registration
"Result of 'Yes' Vote:  'Yes'
vote allows state/local cooperation and resources for immigration enforcement;
voter registration requires documentation of citizenship:  driver license;
birth certificate; passport; naturalization documents; other.
"Result of 'No' Vote:  'No'
vote retains current state/local limits on cooperation and resources to enforce
federal immigration laws; voter registration requirements:  indication of
citizenship; attestation of qualifications.
"Summary:  Current law prohibits
expenditure of state/local law enforcement resources solely to enforce federal
immigration laws; allows only United States citizens to vote, and requires
Oregon voter registrants to attest to, but not to document, voter
qualifications.  Measure prohibits laws limiting government officials'/employees'
cooperation with federal officials enforcing immigration law; requires
first-time Oregon voter registrant to provide proof of citizenship consisting
of any one of the following: an Oregon driver license/non-operating
identification license issued after October 1, 1996 or from another state
indicating that the person has provided proof of citizenship; birth
certificate; United States passport; naturalization documents or confirmed
number of naturalization certificate; other documents or method of proof
established under federal immigration law; specified types of proof of tribal
membership."

The Caruthers petitioners and the
Syrett petitioners are electors who timely submitted written comments to the
Secretary of State concerning the content of the Attorney General's draft
ballot title and who therefore are entitled to seek review of the resulting
certified ballot title in this court.  See ORS 250.085(2) (stating that
requirement).  Both sets of petitioners challenge the caption, the
"yes" and "no" vote result statements, and the summary on
various grounds.  Certain of petitioners' objections relate to the ballot
title's description of the "cooperation" provision of Initiative
Petition 52, while others relate to the "voter registration"
provision of the measure.  We reject without discussion petitioners' objections
that relate to the voter registration provisions of the proposed measure and
turn to petitioners' arguments challenging the ballot title's description of
the "cooperation" provision.  
As background, we briefly describe
current law with respect to the "cooperation" of state and local
governments with federal immigration enforcement.  The only statute that now
addresses that subject specifically is ORS 181.850, which provides, in part, that
no state or local "law enforcement" agency may use agency resources
"for the purpose of detecting or apprehending persons whose only violation
of law is that they are persons of foreign citizenship present in the United
States in violation of federal immigration laws."  ORS 181.850(1).  Other
provisions of ORS 181.850 permit state and local law enforcement agencies,
notwithstanding ORS 181.850(1), to exchange information with federal
authorities regarding the immigration status of arrested persons and to arrest
persons for violation of federal immigration laws if an arrest warrant has been
issued by a federal magistrate.  See ORS 181.850(2), (3) (so
providing).  No other Oregon statutes appear to address the
"cooperation" of Oregon state or local government agencies with
federal immigration enforcement.  We return to petitioners' challenges to the
certified ballot title.
A ballot title must contain a caption
"that reasonably identifies the subject matter" of the proposed
measure.  ORS 250.035(2)(a).  Petitioners argue that several aspects of the
caption are inaccurate or misleading and that the caption thus fails to
substantially comply with the statutory requirement.  We agree with one of
those arguments.  Specifically, both sets of petitioners argue that the
caption, which states that the proposed measure "[a]llows state/local
cooperation with immigration enforcement," is inaccurate, because the
measure "does not 'allow' anything," but rather prohibits any formal
government action that would limit public employees from
"cooperating" with federal immigration enforcement.  Moreover, they
assert, the caption incorrectly implies that state or local cooperation with
federal immigration enforcement is not currently allowed.  They point out that,
although ORS 181.850 places some restrictions on the use of state resources to
enforce federal immigration laws, those restrictions apply only to state and
local "law enforcement" agencies and only to the use of resources to
"detect[] or apprehend[]" individuals solely because they are in
violation of federal immigration law.  In fact, petitioners argue, state and
local agencies, including law enforcement agencies, currently are permitted to
and, in some circumstances, do "cooperate" with federal immigration
enforcement.       
The Attorney General responds that,
although the "cooperation" provision of the proposed measure is
phrased as a prohibition, the "net effect" of the measure would be to
"allow[]" public officials and public employees to cooperate with
federal immigration enforcement.  The Attorney General notes that the measure
would lift existing restrictions on cooperation -- such as ORS 181.850 -- thus "allowing"
such cooperation, but would not affirmatively require cooperation.  For that
reason, he argues, the caption is not confusing or inaccurate.
Initiative Petition 52 uses a double
negative --"[n]o statute, regulation or order * * * shall prohibit * *
*" -- because it seeks to prevent certain kinds of formal government
actions or policies.  Rather than using an admittedly awkward double negative
in the caption -- such as "prohibits limitations" or "bans
restrictions" -- the Attorney General chose to describe the subject of the
measure using the permissive term "allows."  However, the measure
does not purport to "allow" anything, including cooperation between
state and federal officials regarding immigration enforcement -- and, in fact,
such cooperation is not a necessary outcome of the proposed measure.  Instead,
the proposed measure prohibits certain kinds of laws.  And that is all that it
does.  More importantly, use of the term "allows" in this context
suggests, inaccurately, that cooperation is not allowed now and also implies
that, were the measure to pass, state and local governments would
cooperate with federal immigration enforcement.  We thus agree with petitioners
that the caption does not accurately identify the subject matter of the
measure.  The caption must be modified to reflect what the measure would do,
which is to bar state and local laws that prohibit public employees from
cooperating in federal immigration enforcement. 
Petitioners also challenge the
"yes" and "no" vote result statement on various grounds. 
For the reasons set out above with respect to the caption, we agree with petitioners
that the "yes" vote result statement does not adequately describe the
"result if the state measure is approved," ORS 250.035(2)(b), because
the word "allows" inaccurately suggests that state and local public
employees presently are not permitted to and do not cooperate with federal
immigration enforcement and that, if the measure passes, they suddenly will be
free to engage in such cooperation.  Petitioners' other challenges to the
"yes" vote result statement and their challenges to the
"no" vote result statement are not well taken.
Petitioners raise the same arguments
with respect to the summary that they raise regarding the other parts of the
ballot title, as well as raising other objections.  The Attorney General's
certified summary, however, does not suffer from the defects that we have
discussed above.  The summary does not use the term "allows" to
describe the effect of the measure, but instead states that the measure
"prohibits laws limiting government officials'/employees' cooperation with
federal officials enforcing immigration law."  That is an accurate
description of the measure.  Petitioners have not demonstrated that the
summary, either with respect to the "cooperation" provision of the
measure or in any other way, fails to substantially comply with the statutory
requirement that it provide an accurate, concise, and impartial summary of the "measure
and its major effect."  See ORS 250.035(2)(d) (stating requirements
for ballot title summary).
The ballot title is referred to the
Attorney General for modification.
