Rooney v. Kulongoski
| Decision Date | 28 September 1995 |
| Docket Number | No. SC,SC |
| Citation | 322 Or. 15,902 P.2d 1143 |
| Parties | Daniel A. ROONEY and Julie Davis, Petitioners, v. Theodore KULONGOSKI, Attorney General, State of Oregon, Respondent. Lon T. MABON, Petitioner, v. Theodore KULONGOSKI, Attorney General, State of Oregon, Respondent, and Daniel A. Rooney and Julie Davis, Intervenors. S41985, S41999. |
| Court | Oregon Supreme Court |
Lawrence J. Hall, Silverton, argued the cause and filed the petition, for petitioner Lon T. Mabon.
Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses, for respondent. With him on the responses were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
This is a ballot title proceeding consolidating two petitions that challenge the Attorney General's certified ballot title for a proposed initiative measure that has been designated as "Elections Division # 13" by the Secretary of State's office. Petitioner Lon T. Mabon is a chief petitioner for the measure. He submitted timely written comments to the Secretary of State concerning the draft ballot title and thereby preserved the right to reiterate those positions in this challenge to the Attorney General's certified ballot title. ORS 250.067(1), 250.085(2). Petitioners Daniel A. Rooney and Julie Davis (hereafter collectively "Rooney") also have complied with the statutory requirements. Both Mabon and Rooney challenge the Attorney General's certified Caption, Question, and Summary for the ballot title.
Before turning to the merits of the parties' contentions regarding the adequacy of the Attorney General's wording of the ballot title, we consider three threshold issues. The first two pertain to the fact that Lon T. Mabon is a chief petitioner for four separate ballot measures, all of which relate to the same general subjects and use text that is often similar or identical, 1 designated by the Secretary of State as Elections Division numbers 13, 17, 21, and 25.
As noted, the petitions at issue in this consolidated case concern Elections Division The Attorney General argues that an opinion by this court concerning this or any of the three other challenged ballot titles 2 would constitute an advisory opinion, for which the court lacks constitutional authority, and that the court therefore should refuse to certify any ballot title. When initially made, that argument was based on the factual premise that the chief petitioners intended to circulate one of four (or, perhaps, one of eight) proposed measures for signatures and the consequent legal assertion that the existence of a justiciable case or controversy as to any of the cases was, therefore, speculative. As noted above, however, various counsel for the chief petitioner have since left open the possibility that the chief petitioner may circulate all the measures presently before the court. The real possibility that the chief petitioner will circulate each of the proposed measures for signatures negates the legal and factual premises of the Attorney General's "advisory opinion" theory. It is not well taken.
# 13. During oral argument [322 Or. 19] to this court, one of the counsel for Mabon informed us that a total of eight proposed measures had been submitted to the Secretary of State, but that the chief petitioners intended to circulate no more than one of the measures for signatures. That statement later was clarified, however, during oral argument in the challenge to the ballot title for Elections Division # 17, when another counsel informed us that the chief petitioners intend to circulate for signatures one or more of the remaining proposed measures (by that time reduced in number to four), once the ballot title preparation and challenge process is completed.
Rooney asserts that the court should either (1) impose a sanction against Mabon for misuse of the ballot title process; (2) require the chief petitioners to identify which proposed measure or measures they intend to circulate, before the court will issue a decision in any of the four pending cases; or (3) certify an identical ballot title for each measure. 3 We consider those contentions in turn.
Rooney first asserts that the submission by the chief petitioner of multiple measures on the same general subject is an abuse of the initiative process, because what the chief petitioner really is doing is shopping for a ballot title: He can review the ballot titles certified for each of the proposed measures and circulate the measure with the ballot title most to his liking. Rooney relies on the court's "inherent" authority to impose sanctions to protect the integrity of the judicial process from such abuse.
We have some difficulty with Rooney's premise. Rooney does not point to any way--and we know of none--in which the chief petitioner has failed to comply with the statutes pertaining to the initiative process. Assuming (without deciding) that Rooney is correct in labeling the chief petitioner's sponsorship of multiple proposed measures as a shopping expedition, that expedition does not appear to violate the ballot title preparation and certification process, of which this court's judicial review is merely one part. It may be that the next legislature will wish to consider whether such activities by sponsors of initiative measures is an abuse that calls for some reform in the process but, at this time, the chief petitioner has done no more than the law permits. Assuming--again, without deciding--that we would have the authority to do so, we decline to consider imposing a sanction under such circumstances.
Rooney next asserts that the court should require the chief petitioners to disclose The Attorney General has certified four differently worded ballot titles for the four proposed measures. Rooney's final argument, before addressing the merits, is that application of ORS 250.035(2) should lead to the certification of the same ballot title for each of the four pending measures. That statute provides:
which proposed measure or measures they intend to circulate, before the court will certify a ballot title. That assertion is akin to the underlying contention made by the Attorney General regarding advisory opinions, i.e., it assumes that the court is being asked to render decisions regarding the ballot titles for some proposed measures that will never see the light of the signature-gathering day. That assertion also has the same factual and legal infirmities as the advisory opinion theory argued by the Attorney General and, similarly, is not well taken.
"The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election."
As a general proposition, our task in ballot title review cases, pursuant to ORS 250.085(5), 4 is to determine whether the Attorney General's decision to certify a particular ballot title for a particular proposed measure constitutes "substantial compliance with the requirements of ORS 250.035." In the present cases, however, in which the four proposed measures all deal with the same topic, Rooney essentially is asking us to hold that substantial compliance with ORS 250.035(2) would require the Attorney General to certify the same ballot title for each of the pending measures.
To discern the legislative intent behind a statute, we look first to the statute's text and context and, if the legislature's intent is clear from that inquiry, then we look no further. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). ORS 250.035(2) starts from the unexceptional premise, implicit in its text and consistent with the overall statutory context, that a proposed initiative measure will receive a ballot title. See ORS 250.035(1) (); ORS 250.065, 250.067, and 250.085 ().
Assuming for the purpose of discussion that all the proposed measures are identical in material respects (as Rooney asserts is the case), 5 there are three conceivable permutations of ORS 250.035(2) when it comes to certifying ballot titles for the measures: (1) the statute requires certifying the same ballot title for each measure; (2) the statute requires certifying different ballot titles for each measure; or (3) the Attorney General can comply substantially with the statute by certifying the same ballot titles, similar ballot titles, or different ballot titles, depending on the measures and recognizing the possibility that more than one of the choices may constitute substantial compliance in a given situation.
The first permutation, viz., certifying the same ballot title for all, is the obverse of the statutory text. The statute provides that ballot titles shall not resemble each other so far as to create confusion. The obverse of that proposition is that ballot titles shall resemble (or perhaps be identical with) each other to avoid confusion. There is, however, no support in the text or the context of the statute for a conclusion that the statute necessarily mandates its obverse. A fair inference from the statute is that a ballot title may resemble (or perhaps be identical with) another, if to do so probably will not create confusion, but the statute cannot support the Neither is the second permutation, viz., different ballot titles are always required, contemplated by the statute. There is nothing in the statute's text or context to suggest that it requires a differently worded ballot title for a measure that is materially identical to another measure. 6
construction that a ballot title must resemble or perhaps...
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