Fletchall v. Rosenblum
| Decision Date | 06 June 2019 |
| Docket Number | SC S066460 (Control, S066463, S066465) |
| Parties | Michele M. FLETCHALL, Charles E. Lee, Kevin L. Mannix, Becca Uherbelau, David Rogers and Reyna Lopez, Petitioners, v. Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. |
| Court | Oregon Supreme Court |
Kevin L. Mannix, Kevin L. Mannix, P.C., Salem, filed the petition and reply memorandum for petitioners Fletchall, Lee, and Mannix.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the petition and reply memorandum for petitioner Uherbelau.
Evan R. Christopher, Davis Wright Tremaine LLP, Portland, filed the petition and reply memorandum for petitioners Rogers and Lopez. Also on the petition was Gregory A. Chaimov.
Jona J. Maukonen, Assistant Attorney General, Salem, filed the answering memorandum for respondent. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Aruna A. Masih, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the memorandum for amicus curiae Joseph Baessler.
In this ballot title review proceeding, we consider three separate petitions that challenge the Attorney General's certified ballot title for Initiative Petition 5 (2020) (IP 5). For all three petitions, we review the ballot title under the same standard: substantial compliance with ORS 250.035(2). See ORS 250.085(5) (). Having considered the various and sometimes conflicting arguments raised in the petitions, we conclude that the ballot title does not substantially comply with ORS 250.035(2). Accordingly, we refer the ballot title to the Attorney General for modification.
In a nutshell, IP 5 would repeal and replace a provision in the Oregon Constitution, Article IV, section 6, that addresses reapportionment of the state's legislative districts, after each decennial census, to take into account changes in the distribution of the state's population.
In its present form, Article IV, section 6, assigns the task of reapportionment to the legislature, § 6(1), but provides that, if the legislature fails to complete that task by a specified date after the census, the Secretary of State will "make a reapportionment" in the legislature's stead, § (6)(3)(a). It also provides for judicial review of the resulting reapportionment, upon the petition of "any elector," for compliance with the requirements of Article IV, section 6, and "all laws applicable thereto." Or. Const., Art. IV, § 6 (2)(a)-(c); id . § 6 (3)(b), (c). The "laws applicable thereto" include ORS 188.010, which directs the legislature (or the Secretary of State) to apportion districts using certain specified criteria, including a requirement that districts be drawn in a way that does not "divide communities of common interest," ORS 188.010(1)(d), and ORS 188.016, which requires the legislature to hold at least 10 public hearings at locations throughout the state prior to proposing a reapportionment plan, and at least five more public hearings before finally adopting the plan that is proposed.
IP 5 would repeal that current version of Article IV, section 6, and replace it with a new Article IV, section 6, that establishes a "Citizen Commission on Legislative Redistricting" to which the task of reapportionment would fall. The commission created by IP 5 would be composed of 11 members, each of whom would be appointed by all of the county commissioners serving within one of 11 designated geographic areas within the state. Each of the designated geographic areas would be composed of a group of contiguous counties, or, in the case of Washington and Multnomah counties, a single county. The state's population would not be evenly distributed among the 11 areas. As a result, the commission's membership would not equally represent the population of the state but, instead, would give significantly greater representation to rural areas of the state.
After the issuance of the decennial census, the commission thus constituted would be required to (1) adopt a preliminary redistricting plan by an affirmative vote of the majority of its members; (2) hold at least one public hearing in each congressional district regarding the preliminary plan; and (3) adopt a final plan, again by a majority vote, within a designated time frame.
The proposed version of Article IV, section 6, specifies criteria for apportionment by the commission. Most notably, it requires the new commission to apportion districts to be "as compact in area as possible," with the "aggregate linear distance of all district boundaries" being "as short as possible." In addition, the districts must be contiguous, of equal population "within a range of two percent plus or minus," and drawn using "existing geographical and political boundaries to the extent practicable." While some of those criteria for apportionment mirror the statutory criteria for apportionment set out in ORS 188.010 —which the legislature is required to follow when carrying out the redistricting demanded by the current version of Article IV, section 6—some are different. Most notably, IP 5 would (1) establish the above-mentioned "compactness" requirement, which does not exist in the present reapportionment scheme; (2) expressly permit a small amount of inequality between the populations of districts ("equal within a range of two percent") that is not expressly permitted under current law; and (3) omit the present statutory requirement that each district "not divide communities of common interest." ORS 188.010(1)(d).1
Finally, the proposed version of Article IV, section 6, provides for judicial review of a final redistricting plan adopted by the commission, but only for constitutional errors and only upon a petition filed by 15 electors. It also provides that, if the commission fails to timely adopt a final redistricting plan, this court will prepare a final redistricting plan within a specified time period.
The Attorney General certified the following ballot title for IP 5:
Three petitions for review of the certified ballot title for IP 5 were filed in this court by electors who timely had submitted comments concerning the Attorney General's draft ballot title (and who therefore had standing to seek such review).2 ORS 250.085(2). Two of the petitions challenge all three sections of the certified ballot title—that is, the caption, the result statements, and the summary. The third petition challenges only the summary. We begin with the challenges to the caption.
We review the caption for compliance with the statutory requirement, set out at ORS 250.035(2)(a), that a ballot title's caption shall consist of "not more than 15 words that reasonably identify the subject matter of the measure," to be preceded by the words "Amends Constitution" if the measure would amend the Oregon Constitution. For purposes of ORS 250.035(2)(a), a measure's "subject matter" is its "actual major effect"—or, if there is more than one, all such major effects that can fit within the statutory word limit. Markley/Lutz v. Rosenblum , 362 Or. 531, 534, 413 P.3d 966 (2018). To identify a measure's "actual major effect" (or effects), we consider "the changes that the proposed measure would enact in the context of existing law." Id. at 535, 413 P.3d 966.
After thus ascertaining the measure's actual major effects, we examine the caption to determine whether it reasonably identifies those effects. Rasmussen v. Kroger , 350 Or. 281, 285, 253 P.3d 1031 (2011).
We begin with the objections to the Attorney General's caption raised by petitioner Uherbelau. Only two of Uherbelau's three objections warrant extended discussion.3 Uherbelau first argues that the caption fails to comply with the requirements of ORS 230.035(2)(a) because it fails to mention the most significant "actual major effect" of IP 5, which is to repeal the existing constitutional provision that places redistricting in the hands of the legislature. She explains that it is important to inform the voters that the current legislatively controlled redistricting process, which is enshrined in the Oregon Constitution, will be repealed in its entirety if IP 5 is adopted. And she observes that the phrase "[t]ransfers legislative redistricting to commission" in the certified ballot title's...
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