Sizemore v. Kulongoski

• Decision Date: 24 November 1995
• Citation: 322 Or. 229,905 P.2d 1146
• Parties: Bill SIZEMORE, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Alice Dale and Robert Crumpton, Intervenors. SC S42548.
• Court: Oregon Supreme Court

Page 1146

905 P.2d 1146

322 Or. 229

Bill SIZEMORE, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Alice Dale and Robert Crumpton, Intervenors.

SC S42548.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Sept. 26, 1995.

Decided Nov. 24, 1995.

Gregory W. Byrne, of Byrne & Barrow, Portland, argued the cause and filed the petition for petitioner.

Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Lynn-Marie Crider, Salem, argued the cause and filed the memorandum for intervenor Alice Dale.

Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland, filed the memorandum for intervenor Robert Crumpton.

VAN HOOMISSEN, Justice.

This is an original proceeding in which petitioner seeks review of a ballot title certified by the Attorney General. ¹ Petitioner is entitled to bring this proceeding because he is an elector who timely submitted written comments about the Attorney General's draft ballot title. We review the Attorney General's ballot title for substantial compliance with ORS 250.035. ORS 250.085(5); see, e.g., Hand v. Roberts, 309 Or. 430, 433, 788 P.2d 446 (1990) (explaining statutory standards for substantial compliance review).

This is the first ballot title proceeding under the 1995 legislative amendments to ORS chapter 250 (initiative and referendum), which apply to initiative petitions filed on or after July 7, 1995. Or.Laws 1995, ch. 534. ² For the reasons that follow, we modify the Attorney General's certified ballot title.

The proposed initiative measure provides:

"Be in [sic ] Enacted by the People of the State of Oregon:

"Paragraph 1. The Oregon Constitution is amended by creating new sections 10, 11, and 12 to be added to and made part of Article XV and to read:

"Preamble: WHEREAS public employees are as diverse in their political opinions as other members of society, and should not be required to financially support political candidates, parties or agendas inconsistent with their personal views; to protect and preserve the rights of public employees to free political expression and association;

"Section 10. (1) No public employee or applicant for a position with the state, a local government, or other political subdivision of the state including a school district or other taxing jurisdiction, shall be required or coerced to join or otherwise be connected to, or contribute fair share, or pay dues, fees, assessments or other moneys to a public employee union for any reason.

"(2) Public employees shall not be subject to any form of union security clause, or clauses that have the same or similar effect as union security clauses.

"(3) A public employee union shall not be required to represent or provide other services to an employee who is not a member of the union or does not pay moneys to the union.

"(4) No public employee or applicant for a public sector job shall be discriminated against in hiring or promotion due to affiliation or non-affiliation with a union.

"(5) So as to maintain and preserve the voluntary nature of public employee union membership, dues and any other moneys collected from a public employee by a union shall not be deducted from the employee's paycheck.

"(6) All public employee unions annually shall provide each public employee from whom dues, fees or assessments were collected during the preceding year, a detailed, comprehensive, understandable report clearly stating all expenditures for political purposes, including the name of the payee and the amount paid or loaned to a political committee, party, or candidate during the preceding year.

"(7) A public employee who joins a public employee union may (i) elect not to pay that portion of dues, fees, assessments, or similar payments, which would be used for political purposes, or (ii) specify the political party, candidate or committee to which the political portion of that employee's dues, fees, assessments or other moneys shall be made, which designation shall be binding upon the union, which immediately shall carry out such instruction(s), making the contribution(s) in the name of the employee.

"(8) Existing statutes, ordinances, and resolutions which conflict with this Act are hereby repealed.

"Section 11. (1) If any part of Section 10 of this Article is held to be invalid when applied to a public employee who is or was a member of a public employee union or was paying fair share or other moneys to a union at the effective date of this Act, the requirements and restrictions set forth in this Section 10 shall be effective for such employee as soon as is lawful, and to any employee hired on or after the effective date of this Act.

"(2) For purposes of Sections 10 and 11 of this Article, the term public employee union shall mean any labor union, trade association or other employee organization which provides public employees with representation for purposes of collective bargaining or grievance resolution, or that provides other services normally associated with labor unions or employee associations.

"Section 12. SEVERABILITY. If any portion, clause, or phrase of Sections 10 or 11 of this Article is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining portions, clauses, and phrases shall not be affected, but shall remain in full force and effect."

The Attorney General certified the following ballot title for the proposed initiative measure:

"AMENDS CONSTITUTION: PUBLIC EMPLOYEES NEED NOT PAY UNION MONEY FOR ANY REASON

"RESULT OF 'YES' VOTE: 'Yes' vote forbids requiring public employees to pay union, allows unions not to represent non-payers.

"RESULT OF 'NO' VOTE: 'No' vote keeps current law requiring non-member public employees to share costs for union representation.

"SUMMARY: Amends Oregon Constitution. Public employee unions now must represent all employees, including non-members, and may require non-members to share representation costs. Measure forbids compelling non-members to share representation costs, and allows unions to deny representation to non-members who do not pay. Forbids discrimination against public employees, applicants in hiring or promotion based on union affiliation or non-affiliation. Forbids payroll deduction of dues. Bans union security clauses. Members may choose not to pay dues for political purposes, or may direct political contributions to their chosen recipient."

Petitioner argues that the Attorney General's certified ballot title does not substantially comply with ORS 250.035, because the caption does not reasonably identify the subject matter of the measure and because the "yes" and "no" result statements are not simple and understandable. Petitioner does not challenge the Attorney General's summary. The caption

Petitioner argues that the words, "public employees need not pay," wrongly imply that the measure's focus is on what employees are permitted to do, when, in fact, its focus is on prohibiting certain conduct by unions. The Attorney General responds that, in a very similar measure and in virtually the same context, this court certified a caption using the phrase "need not." See Crumpton v. Kulongoski, 319 Or. 82, 87, 873 P.2d 314 (1994) ("public employees need not share union representation costs"). ³ We note, however, that in Crumpton, the "need not" wording was not challenged.

The proposed initiative measure provides in part that "No public employee * * * shall be required or coerced to join or otherwise be connected to, or contribute fair share, or pay dues, fees, assessments or other moneys to a public employee union for any reason." Those provisions focus on whether a public employee must pay money to a union in return for the union's representational efforts. The Attorney General's "need not" language summarizes those provisions accurately.

Petitioner also argues that the wording "public employees need not pay union money for any reason" might mislead voters into believing that public employees who receive services through a union, such as training or health insurance, would not need to pay for them. The Attorney General responds that that wording tracks the initiative measure itself. We agree. We conclude that the Attorney General's caption reasonably identifies the subject matter of the proposed initiative measure and, therefore, that it substantially complies with ORS 250.035(2)(a).

The result statements

Petitioner argues that the Attorney General's "yes" result statement is not "simple and understandable," ORS 250.035(2)(b), because the wording, "forbids requiring public employees to pay union," fails to identify precisely what it is that a public employee is not required to pay. We reject that argument, because the summary indicates that the measure relates to payments of "representation costs." Given that context, we conclude that ORS 250.035(2)(b) does not require a reference to representation costs in the "yes" result statement.

Petitioner also argues that the phrase, "forbids requiring," is confusing, but fails to explain why that is so. We decline to search for reasons on our own. But see Greene v. Kulongoski, 322 Or. 169, 177, 903 P.2d 366 (1995) (the risk of voter confusion by use of three negative terms requires modification of caption). We conclude that the Attorney General's "yes" result statement is a simple and understandable statement that describes the result if the proposed initiative measure is approved and, therefore, that it substantially complies with ORS 250.035(2)(b).

Regarding the Attorney General's certified "no" result statement, the Attorney General concedes, and we agree, that it incorrectly suggests that present law requires non-member public employees to share union representation costs. Current Oregon law does not require public employees who are not...