Buel v. Rosenblum

• Citation: 366 Or. 570,468 P.3d 459
• Decision Date: 02 July 2020
• Docket Number: SC S067555 (Control),SC S067556
• Parties: Ronald A. BUEL, Petitioner, v. Ellen F. ROSENBLUM, Attorney General, State of Oregon Respondent. Kyle Markley, Petitioner, v. Ellen F. Rosenblum, Attorney General, State of Oregon Respondent.
• Court: Supreme Court of Oregon

366 Or. 570

468 P.3d 459

Ronald A. BUEL, Petitioner,

v.Ellen F. ROSENBLUM, Attorney General, State of Oregon Respondent.

Kyle Markley, Petitioner,

v.Ellen F. Rosenblum, Attorney General, State of Oregon Respondent.

SC S067555 (Control)

SC S067556

Supreme Court of Oregon, En Banc.

July 2, 2020

Daniel W. Meek, Portland, filed the petition, reply, and supplemental brief for petitioner Ronald A. Buel.

Eric C. Winters, Wilsonville, filed the petition, reply, and supplemental brief for petitioner Kyle Markley.

Carson L. Whitehead, Assistant Attorney General, Salem, filed the answering memorandum and supplemental brief for respondent. Also on the answering memorandum and supplemental brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Daniel W. Meek, Portland, filed the memorandum for amici curiae in S067556, Ronald A. Buel and Elizabeth Trojan.

Steven C. Berman, Stoll Berne PC, Portland, filed the brief for amici curiae Sonny Mehta and Yes for Fair and Honest Elections.

BALMER, J.

By Legislative Referendum (LR) 401 (2020), the legislature asks the voters to approve or reject a constitutional amendment that would permit the legislature, local governments, and the people through the initiative process to pass laws regulating campaign finance and advertising. As provided in Oregon Laws 2019, chapter 674, section 1, a joint legislative committee drafted the ballot title and explanatory statement for LR 401. In these consolidated cases, petitioners seek review of the ballot title and the explanatory statement. Petitioner Markley challenges all parts of the ballot title; he contends that the caption, "yes" and "no" result statements, and the summary do not comply with the requirements set out in ORS 250.035(2). Petitioner Buel challenges the ballot title summary and the explanatory statement.

After the parties completed briefing on petitioners’ challenges, this court decided Multnomah County v. Mehrwein , 366 Or. 295, 462 P.3d 706 (2020), in which the court concluded that a Multnomah County ordinance limiting campaign contributions was not subject to a facial challenge under Article I, section 8, of the Oregon Constitution. That decision overruled, in part, the court's earlier decision in Vannatta v. Keisling , 324 Or. 514, 931 P.2d 770 (1997), in which the court held that certain statutes that provided for, among other things, mandatory limits on contributions to state political campaigns, violated Article I, section 8. Because the ballot title "no" result statement and summary and the explanatory statement all briefly describe the state of the law before the court's issuance of the Mehrwein decision, the court then asked the parties to submit supplemental briefing concerning the effect, if any, that Mehrwein has on this matter. The parties have now filed supplemental briefs on that issue.

For the reasons explained below, the ballot title's "no" result statement and summary and the explanatory statement must be modified. We otherwise reject petitioners’ arguments. We refer the ballot title to the Attorney General for modification of the "no" result statement and summary. Additionally, having concluded that the explanatory statement also must be modified, we modify the explanatory statement as set out later in this opinion and certify it as modified to the Secretary of State. Or. Laws 2019, ch. 674, § 6 (directing Supreme Court to review and certify explanatory statement).

I. BACKGROUND

We begin with a brief description of the background and the procedures adopted by the legislature for review of LR 401. During the 2019 legislative session, the Legislative Assembly passed Senate Joint Resolution (SJR) 18, which, as we will discuss in more detail below, proposes to amend Article II, section 8, of the Oregon Constitution, to allow regulation of campaign finance and advertising. Paragraph 2 of SJR 18 provides that the constitutional amendment proposed by that resolution shall be submitted to the people for their approval or rejection at the next regular general election held throughout the state.

Also during the 2019 session, the legislature enacted Oregon Laws 2019, chapter 674, which, among other things, sets out time frames and procedures for drafting and review of a ballot title and explanatory statement for any constitutional amendment referred to the people by the legislature during that session, including SJR 18. Under Oregon Laws 2019, chapter 674, a joint legislative committee is responsible for drafting the ballot title and explanatory statement. Or. Laws 2019, ch. 674, § 7. With certain exceptions, the standards for ballot titles and explanatory statements set out in ORS chapters 250 and 251 apply to the ballot title and explanatory statement for this legislatively referred measure. Notably, the otherwise applicable statutory word limitations for the ballot title's caption, "yes" and "no" result statements, and summary do not apply. Id . § 1(1)(a). However, the existing content requirements for each element of a ballot title, set out in ORS 250.035(2), and for an explanatory statement, set out in ORS 251.235, continue in force. Or. Laws 2019, ch. 674, § 5(4) (Supreme Court shall review ballot title for substantial compliance with the requirements of ORS 250.035 ); Or. Laws 2019, ch. 674, § 6(1) (person challenging explanatory statement must state reasons explanatory statement is "insufficient or unclear," which is standard set out in ORS 251.235 ). If we determine that modification of the ballot title is required, we may modify it ourselves or refer it to the Attorney General for modification. Or. Laws 2019, ch. 674, § 5(6). If we determine that modification of the explanatory statement is required, we make the required modifications and certify an explanatory statement that complies with statutory standards. Or. Laws 2019, ch. 674, § 6(3) (the explanatory statement certified by the court shall be the explanatory statement printed in the voters’ pamphlet).

II. BALLOT TITLE REVIEW

As noted, SJR 18 amends Article II, section 8, of the Oregon Constitution by adding provisions dealing with the regulation of campaign finance and advertising. Specifically, the measure allows state and local governing bodies and the people through the initiative process to enact laws that (1) "[l]imit contributions made in connection with political campaigns or to influence the outcome of any election in a manner that does not prevent candidates and political committees from gathering the resources necessary for effective advocacy"; (2) "[r]equire the disclosure of contributions or expenditures made in connection with political campaigns or to influence the outcome of any election"; (3) "[r]equire that an advertisement made in connection with a political campaign or to influence the outcome of any election identify the persons or entities that paid for the advertisements"; and (4) "[l]imit expenditures made in connection with political campaigns or to influence the outcome of any election to the extent permitted under the Constitution of the United States." The measure also provides that the amendment applies retroactively to laws or ordinances enacted or approved by the voters on or after January 1, 2016.

A joint legislative committee prepared the following ballot title and filed it with the Secretary of State as required by Oregon Laws 2019, chapter 674, section 1(1)(a):

"AMENDS CONSTITUTION: ALLOWS LAWS LIMITING POLITICAL CAMPAIGN CONTRIBUTIONS AND EXPENDITURES, REQUIRING DISCLOSURE OF POLITICAL CAMPAIGN CONTRIBUTIONS AND EXPENDITURES, AND REQUIRING POLITICAL

CAMPAIGN ADVERTISEMENTS TO IDENTIFY WHO PAID FOR THEM.

"RESULT OF ‘YES’ VOTE: ‘Yes’ vote allows laws, created by the Legislative Assembly, local governments or voters that limit contributions and expenditures made to influence an election. Allows laws that require disclosure of contributions and expenditures made to influence an election. Allows laws that require campaign or election advertisements to identify who paid for them. Campaign contribution limits cannot prevent effective advocacy. Applies to laws enacted or approved on or after January 1, 2016.

"RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law. Courts currently find the Oregon Constitution does not allow laws limiting contributions to candidates or political committees by a person, corporation, or union.

"SUMMARY: The Oregon Supreme Court has interpreted the Oregon Constitution to prohibit limits on campaign contributions and expenditures. The proposed measure amends the Oregon Constitution to allow the Oregon Legislative Assembly, local governments, and the voters by initiative to pass laws that limit contributions and expenditures made in connection with a political campaign and contributions and expenditures made to influence an election. The measure would allow laws that would require disclosure of political campaign and election contributions and expenditures. The measure would allow laws that require political campaign and election advertisements to identify who paid for them. Laws limiting campaign contributions cannot prevent effective advocacy. Measure applies to all laws enacted or approved on or after January 1, 2016."

As noted, we review the ballot title for "substantial compliance with the requirements of ORS 250.035." Or. Laws 2019, ch. 674, § 5(4). The "substantial compliance" standard is a flexible one, and it allows room for the exercise of discretion by the ballot title drafter. As this court has stated, "there has to be some play in the joints of the ballot title writing process, if this court is to maintain its status as a law-enforcing court, rather than an editorial board." Caruthers v. Myers , 343 Or. 162, 168, 166 P.3d 514 (2007). In reviewing a ballot title, the court's role is limited to determining whether the ballot title "is a concise and impartial statement of the purpose of the measure, and we are not concerned with whether the petitioner's proposed title may be...