IN THE SUPREME COURT OF THE STATE OF OREGON PETITION TO REVIEW BALLOT TITLE CERTIFIED BY THE ATTORNEY GENERAL (INITIATIVE PETITION #43 (2018))

Transcription

1 IN THE SUPREME COURT OF THE STATE OF OREGON DOMINIC AIELLO, ASHA AIELLO ) ) Petitioners, ) ) v. ) ) ELLEN ROSENBLUM, Attorney General of ) the state of Oregon, ) ) Respondent. ) ) SC No. ORAL ARGUMENT REQUESTED PETITION TO REVIEW BALLOT TITLE CERTIFIED BY THE ATTORNEY GENERAL (INITIATIVE PETITION #43 (2018)) Ballot title certified May 23 rd, 2018 Ross Day, OSB # Day Law & Associates, P.C SW Sequoia Parkway, Suite 170 Portland, Oregon (503) (503) fax ross@daylawpc.com Attorney for Petitioners Ellen Rosenblum, OSB # Attorney General 1162 Court Street NE Salem, Oregon (503) (503) fax Attorney for Respondent Chief Petitioners: Walter John Knutson Michael Z. Cahana Alcena E. Boozer Petition Filed June 7 th, 2018

2 1 I. PETITIONERS INTEREST IN THE MATTER Petitioners Dominic Aiello and Asha Aiello (herein Petitioners ) seek review of the ballot title certified by the Attorney General for Proposed Initiative Petition #43 (2018) ( IP 43 ) captioned: PROHIBITS ASSAULT WEAPONS (DEFINED), LARGE CAPACITY MAGAZINES (DEFINED), UNLESS REGISTERED WITH STATE POLICE. CRIMINAL PENALTIES The full text of the ballot title as certified to and filed with the Secretary of State, in addition to the Attorney General s supporting letter, is set out in Exhibit A. The text of the measure as submitted to the Secretary of State is attached as Exhibit B. Petitioners are electors who are dissatisfied with the foregoing certified ballot title. Petitioners submitted timely written comments on the draft ballot title to the Secretary of State on May 8 th, 2018, attached as Exhibit C. Petitioners objections to the Caption, Results Statements and Summary certified by the Attorney General relate to the arguments and comments they made during the administrative comment period, and are adopted and incorporated as if fully set forth herein, in addition to new language the Attorney General inserted into the certified Ballot Title after the end of the administrative comment period, which Petitioners are entitled to raise objections to for the first time before this Court. Carley v. Myers, 340 Or. 222, 232, 132 P.3d651, 656, (2006).

3 2 II. REASONS THE CERTIFIED BALLOT TITLE FOR PETITION #43 (2018) DOES NOT SUBSTANTIALLY COMPLY WITH ORS (2) - (5) The certified caption does not comply with the requirements of ORS (2)-(5) because the certified caption (1) does not accurately state the subject matter of the petition, and (2) and uses politically charged and emotionally laden terms in violation of this Court s case law. III. ARGUMENTS AND AUTHORITIES When reviewing a certified ballot title, the job of this Court is to decide whether the Attorney General s certified ballot title is in substantial compliance with the statutory requirements. Huss v. Kulongoski, 323 Or 266, 269, 917 P2d 1018 (1996). A. The Caption ORS (2)(a) requires that a ballot title contain a caption of not more than fifteen words which reasonably identify the subject matter of the state measure. ORS (2)(a) directs that the caption of a ballot title to a proposed measure reasonably identify the subject matter of the measure. A ballot title must not give undue influence to one aspect of the proposed measure at the expense of a full description of the general subject of the measure. Phillips v. Myers, 321 Or. 221, 936 P.2d 964 (1997). The caption serves as the "cornerstone for the other portions of the ballot title" and therefore must identify the proposed measure's true subject matter "accurately and in terms that will not confuse or mislead potential

4 3 petition signers and voters." Greene v. Kulongoski, 322 Ore. 169, , 903 P.2d 366 (1995). In addition, where the measure s proponents use words or phrases that are intentionally or unintentionally designed to influence the voter, the Attorney General should look past those politically charged phrases and describe the full impact of the measure. The requirement that a ballot title be impartial is to prevent argument, misleading descriptions, or emotionally laden words within the ballot title. Hamilton v. Myers, 326 Or. 44, 943 P.2d 214 (1997). Finally, a caption s terms must not understate or overstate the scope of the legal changes that the proposed measure would enact. Kain/Waller v. Myers, 337 Or. 36, 93 P.3d 62 (2004). In order to draft a proper caption, the Attorney General must examine the text of the measure and the changes the measure would enact in the context of existing law. Greenburg v. Myers, 340 Or. 65, 127 P.3d 1192 (2006) citing Kain/Waller, 337 Or. at 41 (emphasis added). In the certified caption for IP 43, the Attorney General uses the politically charged phrases assault weapons and large capacity magazines, with each phrase followed by the signal (defined). This Court has informed the Attorney General on several occasions that including politically charged phrases in describing a measure is impermissible. Carson v. Kroger, 351 Or. 508, 513, 270 P.3d 243 (2012); Earls v. Myers, 330 Or. 171, 999 P.2d 1134 (2000). There can be no doubt that in today s environment the phrase assault weapon is among the most inflammatory and politically charged terms available.

5 4 A simple internet search of the phrase assault weapon reveals any number of polls that allegedly conclude the American public supports some degree of a ban on assault weapons without actually defining what an assault weapon is. See Why Ban Assault Weapons?, Jacobs, James, 37 Cardozo L.Rev. 681, n.4 (2015). The term assault weapon was used by the chief petitioners of IP 43 to capitalize on the recent popularity of banning assault weapons. There can be no legitimate argument to the contrary. The use of the phrase assault weapon is nothing more than a transparent attempt by the chief petitioners of IP 43 to garner support for IP 43. By including the phrase assault weapon in the draft caption, the Attorney General is playing right into the hands of the chief petitioners. In the Attorney General s letter to the Secretary of State accompanying the certified ballot title, the Attorney General states: The vast majority of commenters objected to the use of the term assault weapons, even with reference to the definition in the propose measure, as an inflammatory, imprecise, or ambiguous term. Unfortunately, an accurate definition of that term is impossible to convey in the allotted fifteen words, particularly since it is not the only subject matter that needs to be conveyed. Exhibit A, pg. 4. The Attorney General s justification for leaving the politically charged term assault weapons in the draft caption is telling. Importantly, the Attorney General does not deny the fact that the term assault weapons is an inflammatory, politically charged term. Instead, the Attorney General justifies using the term

6 5 assault weapons in the certified caption because, essentially, the Attorney General cannot do any better within the statutory word limitation. This Court has held that the word limit of ORS (2)(a) does not justify certifying a ballot title that does not substantially comply with the law. Rasmussen v. Kroger, 350 Or. 271, 280, 253 P.3d 1037 (2011). This Court and the Attorney General are not constrained to certify a ballot title that is slanted towards passage of the measure. Earls, 330 Or. at 176 citing Dirks v. Myers, 329 Or. 608, 993 P.2d 808 (2000). Further, proponents of a ballot measure are not entitled to engineer a favorable ballot title by incorporating politically inflated terms or phrases in the text of the measure in order to advance its passage. Id. In short, the Attorney General must do better within the confines of the law. Not only is the use of the politically charged phrase assault weapons in the certified caption inappropriate because it is an inflammatory and politically charged phrase, the use of the phrase assault weapons in the certified caption is misleading and does not inform the voter of what IP 43 actually does. This Court has held that when a proposed measure uses a term in such a way that is significantly broader than the common definition, the use of the signal (defined) is inappropriate. Tauman v. Myers, 343 Or. 299 (2007). Put another way, the use of a phrase or term taken from the text of a measure should not give

7 6 the voters a false impression as to the scope of a term in a measure. Blosser v. Rosenblum 358 Or. 295, 365 P.3d 525, fn. 3 (2015). Webster s Third New Int l Dictionary (unabridged ed 2002) defines assault weapon as any of various automatic or semiautomatic firearms; especially: assault rifle, but IP 43 defines assault weapon far more broadly than the generally accepted meaning of the phrase assault weapon. IP 43 not only includes rifles, but it also includes pistols and shotguns within the definition of assault weapon. IP 43 would ban common hunting rifles used for deer and elk hunting that have a detachable three round magazine and a muzzle break to reduce recoil. Common competition.22 target rifles would be considered an assault weapon under IP 43 because they are semi-automatic and have a thumbhole stock. And common.22 caliber hunting rifles with flash suppressors on the barrel would be considered an assault weapon under IP 43. Few people would identify.22 caliber hunting rifle with a flash suppressor as an assault weapon. 1 Most people associate the term assault weapon as describing a militarytype/looking weapons such as the infamous AR-15. Few people would associate the term assault weapon with a pistol, hunting rifle or shotgun. The certified 1 See Exhibit C, page 3 for a picture of what a.22 caliber rifle with a flash suppressor looks like. No reasonable person would consider such a firearm to be an assault weapon.

8 7 caption misleads the voter into thinking IP 43 only applies to military-type/looking weapons when, in fact, IP 43 covers a far broader range of firearms. The Attorney General justified the use of the term assault weapons in the certified caption because, according to the Attorney General an accurate definition of that term is impossible to convey in the allotted fifteen words. This is not true. In their comments in response to the draft ballot title, Petitioners suggested the following caption: CRIMINALIZES POSSESSION/PURCHASE/TRANSFER/SALE/MANUFACTURE OF CERTAIN OPERABLE PISTOLS, RIFLES, SHOTGUNS, LARGE CAPACITY MAGAZINES (15 words) Petitioners proposed caption informs the voter that IP 43 applies to pistols, rifles, shotguns and large capacity magazines. Further, Petitioners proposed caption explains to the voters exactly what IP 43 does, it criminalizes the possession, purchase, transfer, sale and/or manufacture of certain operable firearms and large capacity magazines. Petitioners proposed caption demonstrates that, in fact, the Attorney General can convey an accurate definition of the phrase assault weapon, as the phrase is used in IP 43. The law does not require that the certified ballot title use only the words that appear in the measure itself. Bernard v, Kiesling, 317 Or. 591, 596, 858 P.2d 1309 (1993). However, the Attorney General is bound-and-determined to use the phrase assault weapon in the certified caption, even though the Attorney General is not

9 8 required to do so by the law, because the Attorney General knows the phrase assault weapon is a politically charged term that will assist in the passage of IP In Bernard this Court stated that when the Attorney General uses terms in a certified ballot title that were used by the proponents of a measure to improve the likelihood of success of a measure, or obfuscate the subject, chief purpose, summary, or major effect of a measure, this Court will not hesitate to go beyond the words of the measure to determine what words should be used in the certified ballot title. Id. Finally, the certified caption misses one of the biggest if not the single biggest effects of IP 43. The certified caption and indeed the entire certified ballot title fails to inform the voter that once a person registers an assault weapon or large capacity magazine, the person can never again purchase an 2 Petitioners have a good-faith belief the Attorney General is a strong supporter of IP 43. See Exhibit C, pgs The Court should not consider certified ballot titles in a vacuum and should consider the fact that the Attorney General may be using her position to draft a ballot title that will assist in the eventual passage of IP 43, especially in light of the evidence presented by the Petitioners of the Attorney General s likely bias in favor of IP 43. The Court should add an additional degree of scrutiny to the Attorney General s use of politically charged phrases such as assault weapons in the certified ballot title given the probability that the Attorney General s use of the phrase advances her own publicly stated political agenda. To be clear, Petitioners are not arguing for a rule requiring the Court to examine the political leanings of the Attorney General vis-à-vis every measure she drafts a certified ballot title for, but in rare cases such as this, involving such a polarizing issue where passions run strong on both sides, it is entirely appropriate to consider the Attorney General s justifications for the certified ballot title with the understanding that the Attorney General has expressed support in the past for the policies embodied in the measure.

10 9 assault weapon or large capacity magazine. Instead, the certified ballot title misleads the voter into thinking that a person can purchase an assault weapon or large capacity magazine as long as the person registers the assault weapon or large capacity magazine. This is not the case. Section 5.(6) of IP 43 makes it clear that once you register an assault weapon or large capacity magazine, a person is never again allowed to purchase an assault weapon or large capacity magazine. This means that, because of the broad array of firearms restricted by IP 43, once a person registers her pistol with the state police, that person will not be able to purchase a hunting rifle or a shotgun. 3 At a minimum, the certified caption/ballot title needs to inform the voter that a person is allowed to purchase only one assault weapon or large capacity magazine, regardless of whether the assault weapon or large capacity magazine is registered with the state police. The certified caption and indeed the entire certified ballot title for IP 43 is a case where the Court should not hesitate to go beyond the words of the measure and require the Attorney General to certify a ballot title that substantially complies with the requirements of ORS , because the current certified ballot title falls well short of the statutory requirements of ORS (2)-(5). 3 The restriction in Section 5.(6) of IP 43 is not limited to purchases of assault weapons only in Oregon. Under the express terms of IP 43, if a person owns an assault weapon and registers the assault weapon as required by IP 43, and also has a home in another state and purchases a firearm that is considered an assault weapon under IP 43, that person will have violated the express terms of IP 43 and be subject to prosecution of a felony!

11 10 B. The Results Statements The results statements fail for the same reasons discussed in Section A. of this Petition For Review, as well as the reasons articulated in Petitioners comments in response to the draft ballot title, attached as Exhibit C, which are incorporated by this reference as additional arguments against the certified summary as if fully set forth herein. C. Summary The certified summary is also legally deficient for the reasons articulated in Section A. of this Petition for Review, as well as the reasons articulated in Petitioners comments in response to the draft ballot title, attached as Exhibit C, which are incorporated by this reference as additional arguments against the certified summary as if fully set forth herein. V. CONCLUSION For the reasons discussed above, the certified ballot title for Proposed Initiative Petition #43 (2018) should be remanded back to the Attorney General for modification. Respectfully submitted this 7th day of June, 2018 /s/ Ross Day Ross Day, OSB # Day Law & Associates, P.C SW Sequoia Parkway, Suite 170 Portland, Oregon (503) (503) fax Attorney for Petitioners

12 EXHIBIT A

13 OFFICE OF THE SECRETARY OF STATE DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE ELECTIONS DIVISION STEPHEN N. TROUT DIRECTOR 255 CAPITOL STREET NE, SUITE 501 SALEM, OREGON (503) TO: I N I T I A T I V E P E T I T I O N FROM: All Interested Parties Lydia Plukchi, Compliance Specialist DATE: May 23, 2018 SUBJECT: Initiative Petition Certified Ballot Title The Elections Division received a certified ballot title from the Attorney General on May 23, 2018, for Initiative Petition , proposed for the November 6, 2018, General Election. Caption Prohibits "assault weapons" (defined), "large capacity magazines" (defined), unless registered with state police. Criminal penalties Chief Petitioners Walter John Knutson 4526 NE 27th Ave Portland, OR Michael Z. Cahana 3139 SW Fairmount Blvd. Portland, OR Alcena E. Boozer 5256 NE 48th Ave. Portland, OR Appeal Period Any registered voter, who submitted timely written comments on the draft ballot title and is dissatisfied with the certified ballot title issued by the Attorney General, may petition the Oregon Supreme Court to review the ballot title. If a registered voter petitions the Supreme Court to review the ballot title, the voter must notify the Elections Division by completing and filing form SEL 324 Notice of Ballot Title Challenge. If this notice is not timely filed, the petition to the Supreme Court may be dismissed. Appeal Due June 7, 2018 How to Submit Appeal Refer to Oregon Rules of Appellate Procedure, Rule or contact the Oregon Supreme Court for more information at Notice Due How to Submit Notice Where to Submit Notice 1 st business day after Scan and irrlistnotifier.sos@state.or.us appeal filed with Fax Supreme Court, 5 pm Mail 255 Capitol St NE Ste 501, Salem OR More information, including the certified ballot title and the Secretary of State's determination that the proposed initiative petition is in compliance with the procedural requirements established in the Oregon Constitution for initiative petitions, is contained in the IRR Database available at Exhibit A Page 1 of 9

14 Exhibit A Page 2 of 9

15 ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION May 23, 2018 Stephen N. Trout Director, Elections Division Office of the Secretary of State 255 Capitol St. NE, Ste. 501 Salem, OR Re: Proposed Initiative Petition Prohibits Assault Weapons (Defined), Large Capacity Magazines (Defined), Unless Registered With State Police. Criminal Penalties. DOJ File #BT-43-18; Elections Division # Dear Mr. Trout: More than 1000 timely comments were submitted on the draft ballot title for the initiative petition referenced above. We have reviewed each and every comment. While many of the comments simply stated support or opposition to the proposed measure, many hundreds suggested specific language for use in the ballot title. Our usual practice is to individually address each comment letter we received; it is not possible to do so here. However, many of the comments presented the same themes or arguments, and we address those common concerns in this letter. Many of the comments received suggested some confusion about the process for citizen initiative petitions. Some commenters seemed to assume that the Attorney General drafted the proposed measure. Others urged your office to support or oppose the measure, or to simply refuse to place it on the ballot. With particular regard to the Attorney General, her role in the process of drafting the ballot title is to prepare an impartial ballot title that complies with ORS The comments on a draft ballot title are an important part of that process, pointing out flaws or nuances that may not be readily apparent. The end result, the certified ballot title, is intended to provide fair and accurate information to voters so that informed choices can be made. A number of comments asserted that the proposed measure violates various provisions of the United States and Oregon Constitutions. With the exception of those procedural provisions of the state constitution that might bar placement of the measure on the ballot, consideration of those constitutional claims is premature at this point. As to claims regarding Article 4, section 1 (2)(d) of the Oregon Constitution, we have previously opined that this proposed measure is consistent with the constitutional procedural requirements Court Street NE, Salem, OR Telephone: (503) Fax: (503) TTY: (800) Exhibit A Page 3 of 9

16 ` Page 2 The vast majority of the comments were directed to the caption of the ballot title. However, many of the comments were also applicable to the result statements and the summary, and we used the comments to refine our thinking as to all parts of the draft ballot title. As a result, we have made changes to the caption, both result statements, and the summary. A. The caption The caption for the ballot title of a state measure must reasonably identify the subject matter of the measure and contain no more than 15 words. ORS (2)(a). The subject matter is the actual major effect of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words). Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011). To identify the actual major effect of a measure, the Attorney General must consider the changes that the proposed measure would enact in the context of existing law. Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). A caption complies substantially with the requirements of ORS (2)(a) if it identifies the subject matter of the proposed measure in terms that will not confuse or mislead potential petition signers and voters. Mabon v. Myers, 332 Or 633, 637, 33 P3d 988 (2001). The caption is the cornerstone for the other portions of the ballot title and its headline, and it provides the context for the reader s consideration of other information in the ballot title. Id. The draft ballot title s caption reads: Criminalizes Possession Or Transfer Of Assault Weapons (Defined) Or Large Capacity Magazines (Defined), With Exceptions The vast majority of commenters objected to the use of the term assault weapons, even with the reference to the definition in the proposed measure, as an inflammatory, imprecise, or ambiguous term. Unfortunately, an accurate definition of that term is impossible to convey in the allotted fifteen words, particularly since it is not the only subject matter that needs to be conveyed. We have opted to place the term in quotation marks and to note that it is a defined term, and we have utilized the summary of the ballot title to describe more fully what is encompassed within that term. Most commenters also objected to the reference to large capacity magazines. Under this proposed measure, even if a firearm itself does not require registration for continued ownership, magazines would have to be registered if they are capable of holding more than 10 rounds of ammunition. It is important to communicate the breadth and scope of this proposal, including its impact on magazines as part of the actual major effect, but again, fifteen words does not allow for a more full description. Here, too, we have used the summary to provide a fuller explanation. The chief petitioners object to the draft caption s focus on criminal penalties, pointing out that there are other options, including registration. Many other commenters also pointed out that registration is a new and major effect of the measure. Although a background check is done when a gun is purchased, there is currently no state registry of guns, and magazines can be Exhibit A Page 4 of 9

17 ` Page 3 purchased with no restrictions and no identification. Registration is an additional actual major effect of the measure. Although we agree that the draft ballot title overemphasized the significance of criminal penalties, the proposed measure does impose serious criminal consequences for noncompliance, and those penalties are also an actual major effect of the measure. Considering the comments as a whole, we certify the following caption: Prohibits Assault Weapons (Defined), Large Capacity Magazines (Defined), Unless Registered With State Police. Criminal Penalties. B. Yes Result Statement A ballot title must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is approved. ORS (2)(b). The yes vote result statement should identify the most significant and immediate effects of the measure. Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). The draft yes vote result statement provides: Result of Yes Vote: Yes vote criminalizes possession/ transfer of assault weapons (defined)/ large capacity magazines (defined), with exceptions for military/ police / registered owner approved by State Police Few of the commenters focused specifically on the result statements; however, many of their comments apply with equal force to the yes statement. The most significant and immediate effect of the measure is to require background checks and registration to lawfully possess assault weapons and large capacity magazines, as defined by the measure. The creation and maintenance of a registry of such items, which does not presently exist, is another significant and immediate effect. Many commenters noted these significant changes in current law. We certify the following yes result statement: Result of Yes Vote: Yes vote prohibits assault weapons (defined), large capacity magazines (defined), unless registered with State Police after background check. Criminal penalties. State Police must maintain registry. C. No Result Statement A ballot title must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected. ORS (2)(c). The no vote result statement should address[] the substance of current law on the subject matter of the proposed measure and summarize [ ] the current law accurately. McCann v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014) (quoting Novick/Crew, 337 Or at 577) (emphasis added in Novick/Crew). The draft no vote result statement provides: Exhibit A Page 5 of 9

18 ` Page 4 Result of No Vote: No vote retains current laws, which bar possession of firearms by certain individuals, including convicted felons, some civilly committed persons, domestic abusers, other disqualified persons As drafted, the no statement focuses on who may currently purchase firearms. Few commenters focused on this statement; however, those who did, including the chief petitioners, noted that it failed to focus on current law on the subject matter of the measure, including background checks for gun purchases and the lack of a registry for firearms or ammunition magazines. The revised no statement corrects these omissions: Result of No Vote: No vote retains current law requiring background check for firearm purchases, barring purchases by certain individuals, and not requiring registration of firearms or ammunition magazines. As revised, we certify the no result statement. D. The Summary A ballot title must include [a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect. ORS (2)(d). The purpose of a ballot title s summary is to give voters enough information to understand what will happen if the initiative is adopted. McCann, 354 Or at 708. The draft summary provides: Summary: Measure criminalizes possession or transfer of assault weapons (defined)/ large capacity magazines (defined) except for military/ law enforcement purposes, or persons authorized by State Police after criminal background check. Otherwise possession or transfer is a Class B felony. Within 120 days, persons lawfully owning such weapons or magazines must remove from Oregon, lawfully sell, surrender to law enforcement, render inoperable, or register items with State Police. Applies to inherited items. Bars moving covered items into Oregon. Assault weapons include certain semiautomatic rifles or pistols with a detachable magazine; pistol or rifles with a fixed magazine holding more than 10 rounds of ammunition; certain semiautomatic shotguns. Large capacity magazine is ammunition feeding device with capacity of more than ten rounds. Effective January Other provisions. Because there is, as many commenters remarked, no common agreement as to what the terms assault weapon and large capacity magazine mean, we believe that the summary should set out specifically what items are covered by the measure, and what is required if the initiative is adopted. Thus, the revised summary first states what will occur if the measure passes: prohibition of ownership of the covered items unless they are registered to a qualified owner. The covered items are then listed in as much detail as space allows, noting that some handguns and shotguns are included, and that the measure refers to semiautomatic weapons. The summary then states how the covered items can be disposed of if the owner chooses not to register them, and further states that covered items may not be brought into the state after the Exhibit A Page 6 of 9

19 ` Page 5 effective date of the measure. Finally, the measure specifies locations where registered firearms may be taken or held, which may limit the lawful uses of these firearms. Accordingly, we certify the following summary: Summary: Measure prohibits assault weapons (defined), large capacity magazines (defined), unless registered with State Police after background check. Criminal penalties. Assault weapons definition includes: Semiautomatic rifles with detachable magazine and certain additional features; Semiautomatic, centerfire or rimfire rifles, or semiautomatic pistol, capable of holding more than ten bullets with fixed magazine; Semiautomatic centerfire rifles under thirty inches; Semiautomatic handguns with certain additional features; Semiautomatic shotguns with certain additional features; Shotguns with revolving cylinders. Large capacity magazines defined as capable of holding over 10 rounds, excluding tubular magazines in.22 caliber or lever-action firearms. Covered items not registered must be sold/ surrendered/ destroyed. State Police must maintain registry. Acquisition mostly prohibited after effective date, January 1, Measure may limit uses of covered items. Other provisions E. Conclusion For the reasons set forth above, we have modified the draft ballot title and certify the ballot title attached to this letter. Sincerely, /s/ Denise G. Fjordbeck Denise G. Fjordbeck Attorney-in-Charge Civil/Administrative Appeals denise.fjordbeck@doj.state.or.us Enclosure cc: attached certificate of service Exhibit A Page 7 of 9

20 Certified by Attorney General on May 23, /s/ Denise G. Fjordbeck Attorney-in-Charge BALLOT TITLE Prohibits assault weapons (defined), large capacity magazines (defined), unless registered with state police. Criminal penalties Result of Yes Vote: Yes vote prohibits assault weapons (defined), large capacity magazines (defined), unless registered with State Police after background check. Criminal penalties. State Police must maintain registry. Result of No Vote: No vote retains current law requiring background check for firearm purchases, barring purchases by certain individuals, and not requiring registration of firearms or ammunition magazines. Summary: Measure prohibits assault weapons (defined), large capacity magazines (defined), unless registered with State Police after background check. Criminal penalties. Assault weapons definition includes: Semiautomatic rifles with detachable magazine and certain additional features; Semiautomatic, centerfire or rimfire rifles, or semiautomatic pistol, capable of holding more than ten bullets with fixed magazine; Semiautomatic centerfire rifles under thirty inches; Semiautomatic handguns with certain additional features; Semiautomatic shotguns with certain additional features; Shotguns with revolving cylinders. Large capacity magazines defined as capable of holding over 10 rounds, excluding tubular magazines in.22 caliber or lever-action firearms. Exhibit A Page 8 of 9

21 Certified by Attorney General on May 23, /s/ Denise G. Fjordbeck Attorney-in-Charge Covered items not registered must be sold/ surrendered/ destroyed. State Police must maintain registry. Acquisition mostly prohibited after effective date, January 1, Measure may limit uses of covered items. Other provisions Exhibit A Page 9 of 9

22 EXHIBIT B

23 1 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OREGON: SECTION 1. Sections 2 to 5 of this 2018 Act are added to and made a part of ORS to SECTION 2. The people of the State of Oregon find and declare that a reduction in the availability of assault weapons and large capacity ammunition magazines will promote the public health and safety of the residents of this state. SECTION 3. As used in sections 2 to 6 of this 2018 Act: (1)(a) Assault weapon means any: (A) Semiautomatic rifle that has the capacity to accept a detachable magazine and has at least one of the following: (i) Any grip of the weapon, including a pistol grip, a thumbhole stock or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; (ii) Any feature capable of functioning as a protruding grip that can be held by the nontrigger hand; (iii) A folding or telescoping stock; (iv) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel; (v) A forward pistol grip; (vi) A flash suppressor, muzzle brake, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle brake, or muzzle compensator; (vii) A bayonet mount; or (viii) A grenade launcher or flare launcher; (B) Semiautomatic pistol, or any semiautomatic, centerfire or rimfire rifle with a fixed magazine, that has the capacity to accept more than 10 rounds of ammunition; (C) Semiautomatic, centerfire rifle that has an overall length of less than thirty inches; (D) Semiautomatic pistol that has the capacity to accept a detachable magazine and has at least one of the following: (i) Any feature capable of functioning as a protruding grip that can be held by the nontrigger hand; (ii) A folding, telescoping or thumbhole stock; (iii) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel; (iv) The capacity to accept a detachable magazine at any location outside of the pistol grip; or (v) A threaded barrel capable of accepting a flash suppressor or forward pistol grip; Exhibit B Page 1 of 5

24 2 (E) Semiautomatic shotgun that has both of the following: (i) Any grip of the weapon, including a pistol grip, a thumbhole stock or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; and (ii) A folding or telescoping stock; (F) Semiautomatic shotgun that has at least one of the following: (i) A fixed magazine capacity in excess of ten rounds; or (ii) An ability to accept a detachable magazine; (G) Shotgun with a revolving cylinder; and (H) Conversion kit, part or combination of parts from which an assault weapon can be assembled if those parts are in the possession or under control of the same person. (b) Assault weapon does not include any firearm that has been made permanently inoperable. (2) Criminal background check has the meaning given that term in ORS (3) Department means Department of State Police. (4) Detachable magazine means an ammunition feeding device that can be loaded or unloaded while detached from a firearm and readily inserted into a firearm. (5) Fixed magazine means an ammunition feeding device contained in or permanently attached to a firearm in such a manner that the device cannot be removed without disassembly of the firearm action. (6) Large capacity magazine means any ammunition feeding device with the capacity to accept more than 10 rounds or any conversion kit or combination of parts from which such a device can be assembled, but does not include any of the following: (a) A feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds; (b) A.22 caliber tube ammunition feeding device; or (c) A tubular magazine that is contained in a lever-action firearm. SECTION 4. (1) Notwithstanding ORS to , and except as provided in subsections (2) to (4) of this Section 4, a person commits the crime of unlawful possession or transfer of an assault weapon or large capacity magazine if the person manufactures, imports, possesses, purchases, sells or transfers any assault weapon or large capacity magazine. (2) Subsection (1) of this Section 4 does not apply to: Exhibit B Page 2 of 5

25 3 (a) Any government officer, agent or employee, member of the Armed Forces of the United States or peace officer as that term is defined in ORS if that person is otherwise authorized to acquire or possess an assault weapon or large capacity magazine and does so while acting within the scope of that person s duties; (b) The manufacture of an assault weapon or large capacity magazine by a firearms manufacturer for the purpose of sale to any branch of the Armed Forces of the United States or to a law enforcement agency in this state for use by that agency or its employees, provided the manufacturer is properly licensed under federal, state and local laws; or (c) The sale or transfer of an assault weapon or large capacity magazine by a firearms dealer licensed under 18 U.S.C. 923 to any branch of the Armed Forces of the United States or to a law enforcement agency in this state for use by that agency or its employees for law enforcement purposes. (3) Any person who, prior to the effective date of this law, was legally in possession of an assault weapon or large capacity magazine shall, within 120 days after the effective date of this 2018 Act, without being subject to prosecution: (a) Remove the assault weapon or large capacity magazine from the state; (b) Sell the assault weapon or large capacity magazine to a firearms dealer licensed under 18 U.S.C. 923 for lawful sale or transfer under subsection (2) of this section; (c) Surrender the assault weapon or large capacity magazine to a law enforcement agency for destruction; (d) Render the assault weapon permanently inoperable; or (e) If eligible, register the assault weapon or large capacity magazine with the Department as provided in Section 5 of this 2018 Act. (4) Any person who acquires an assault weapon or large capacity magazine, for which registration was previously properly obtained under Section 5 of this Act, by inheritance, bequest or succession, or by virtue of the person s role as executor or other legal representative of an estate or trust, shall, within 120 days after acquiring title, without being subject to prosecution under this section: (a) Surrender the assault weapon or large capacity magazine to a law enforcement agency for destruction; (b) Transfer the assault weapon or large capacity magazine to a firearms dealer licensed under 18 U.S.C. 923 for lawful sale or transfer under subsection (2)(c) of this section; (c) Render the assault weapon permanently inoperable; or (d) If eligible, register the assault weapon or large capacity magazine with the Department and meet all of the requirements under Section 5 of this 2018 Act, except the time for registering shall run from the date of acquiring title. (5) Any person who moves into the state and immediately prior to moving is in lawful possession of an assault weapon or large capacity magazine, shall, unless exempt under Section 4(2)-(4) of this Act, within 120 days: (a) Surrender the assault weapon or large capacity magazine to a law enforcement agency for destruction; (b) Transfer the assault weapon or large capacity magazine to a firearms dealer licensed under 18 U.S.C. 923 for lawful sale or transfer under subsection (2)(c) of this section; or Exhibit B Page 3 of 5

26 4 (c) Render the assault weapon permanently inoperable. (6) Unlawful possession or transfer of an assault weapon or large capacity magazine is a Class B felony. SECTION 5. (1) Any person seeking to register an assault weapon or large capacity magazine with the Department shall do so as provided in this section within 120 days after the effective date of this 2018 Act. (2) In order to register an assault weapon under this section, the owner of the assault weapon must: (a) Submit to the Department, on a form approved by the Department, the owner s name and address and the identification number of each assault weapon owned by the owner: (b) Be the lawful owner of the assault weapon prior to the effective date of this 2018 Act; and (c) Allow the Department to conduct a criminal background check of the person to confirm that the person is not a prohibited possessor under ORS (3) In order to register a large capacity magazine under this section, a person must: (a) Submit to the Department, on a form approved by the Department, the owner s name and address and information sufficient to identify any large magazine owned or possessed by the owner; (b) Be the lawful owner of the large capacity magazine prior to the effective date of this 2018 Act; and (c) Allow the Department to conduct a criminal background check of the person to confirm that the person is not a prohibited possessor under ORS (4) A person seeking to register an assault weapon or large capacity magazine must submit evidence satisfactory to the Department to establish that: (a) The owner has securely stored the assault weapon or large capacity magazine pursuant to existing law and, in addition, as provided in any rules and regulations adopted by the Department specifically relating to assault weapons and large capacity magazines; (b) The owner possesses any lawful assault weapon or large capacity magazine only: (A) On property owned or immediately controlled by the registered owner; (B) On property owned by another with the owner s express permission in a manner consistent with subsection (4)(a) in this section; (C) On the premises of a firearms dealer or gunsmith licensed under 18 U.S.C. 923 for the purpose of lawful repair; (D) While engaged in the legal use of the assault weapon or large capacity magazine, at a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting; (E) At a firearms competition or exhibition, display or educational project about firearms sponsored, conducted by approved or under the auspices of a law enforcement agency or a national or state-recognized entity that fosters proficiency in firearms use or promotes firearms education; or (F) While transporting the weapon in a vehicle as permitted in ORS to one of the locations authorized under this statute. Exhibit B Page 4 of 5

27 5 (5) A registered owner of an assault weapon or large capacity magazine may not sell or transfer the assault weapon or large capacity magazine except to a firearms dealer or to a gunsmith licensed under 18 U.S.C. 923 for repair, lawful sale or transfer or for the purpose of disposal as provided in SECTION 3 of this 2018 Act. (6) A registered owner of an assault weapon or large capacity magazine may not purchase additional assault weapons or large capacity magazines. (7) A registered owner of a registered assault weapon or large capacity magazine must report the loss or theft of such weapon or magazine to the appropriate law enforcement agency within 48 hours of the discovery of the loss or theft. SECTION 6. (1) Upon receipt of a request from a person seeking to register an assault weapon or large capacity magazine, the Department shall determine from criminal records and other available information whether the potential registrant is disqualified under ORS from possessing the assault weapon or large capacity magazine. (2) The Department may adopt a fee schedule for criminal background checks as provided in ORS (3) The Department shall establish a means of obtaining the information that must be provided by owners of assault weapons and large capacity magazines who qualify for registration under Section 5 of this 2018 Act, which information must include the information required by Section 5 of this Act, and any other information determined necessary by the Department to carry out the purposes of this 2018 Act. (4) The Department shall maintain a registry of the information obtained by it pursuant to Sections 5 and 6(3) of this 2018 Act, and shall adopt rules concerning the administration of the registry, including but not limited to renewal and revocation procedures and storage requirements for assault weapons and large capacity magazines. (5) The record of the information collected for registration under this section is exempt from disclosure under the public records law in the same manner such information is maintained under ORS SECTION 7. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. The people hereby declare that they would have adopted this Chapter, notwithstanding the unconstitutionality, invalidity and ineffectiveness of any one of its articles, sections, subsections, sentences or clauses. SECTION 8. This Act shall take effect on January 1, Exhibit B Page 5 of 5

28 EXHIBIT C

29 Ross A. Day * Matthew Swihart * LICENSED IN OREGON AND WASHINGTON LICENSED IN OREGON AND FLORIDA May 8, 2018 Via Facsimile ( ) and electronic mail (irrlistnotifier.sos@state.or.us) The Honorable Dennis Richardson Oregon Secretary of State Attn: Elections Division 255 Capitol Street NE, Suite 501 Salem, Oregon RE: Elector Comments Submitted in Response to Draft Ballot Title for Proposed Initiative Petition #43 (2018) (herein Petition #43") Secretary Richardson: I offer these comments on behalf of myself, and my clients Dominic Aiello, Asha Aiello as Oregon Electors, as the term elector is defined in ORS (2), in response to the Secretary of State s request for comments in response to the Draft Ballot Title prepared by the Oregon Attorney General for Petition #43. These comments are provided in our capacity as Oregon Electors. I also submit these comments on behalf of my client the Oregon Outdoor Council Association. I. The Caption ORS (2)(a) requires that a ballot title contain a caption of not more than fifteen words which reasonably identify the subject matter of the state measure. The caption presented by the Attorney General states: Criminalizes possession or transfer of assault weapons (defined) or large capacity magazines (defined), with exceptions ORS (2)(a) directs that the caption of a ballot title to a proposed measure reasonably identify the subject matter of the measure. The caption serves as the "cornerstone for the other portions of the ballot title" and therefore must identify the proposed measure's true subject matter "accurately and in terms that will not confuse or mislead potential petition signers and voters." Greene v. Kulongoski, 322 Ore. 169, , 903 P.2d 366 (1995) SW SEQUOIA PARKWAY, SUITE 170, PORTLAND, OREGON TEL: FAX: WEB: Exhibit C Page 1 of 8

30 Secretary of State Dennis Richardson Comments on Draft Ballot Title for IP 43 May 8, 2018 Page 2 of 8 The caption, which is the first information that most potential petition signers and voters will see, is pivotal. Frazzini v. Myers, 344 Or. 648, 654, 189 P.3d 1227 (2008). It must ''inform potential petition signers and voters of the sweep of the measure.'' Id. citing Terhune v. Myers, 342 Ore. 475, 479, 154 P.3d 1284 (2007). A caption should not ''understate or overstate the scope of the legal changes that the proposed measure would enact.'' Id. citing Kain/Waller v. Myers, 337 Ore. 36, 40, 93 P.3d 62 (2004). If a proposed measure has more than one subject, each should be identified in the caption if it is possible to do so within the 15-word limit. Whitsett v. Kroger, 348 Or. 243, 247, 230 P.3d 545 (2010). In other words, a caption cannot focus on only one thread of a petition, but instead must focus on the entire blanket, so as to encompass all the subjects covered by the measure. See Witt v. Myers, 325 Or. 221, 936 P.2d 964 (1997). In addition, where the measure s proponents use words or phrases that are intentionally or unintentionally designed to influence the voter, the Attorney General should look past those politically charged phrases and describe the full impact of the measure. The requirement that a ballot title be impartial is to prevent argument, misleading descriptions, or emotionally laden words within the ballot title. Hamilton v. Myers, 326 Or. 44, 943 P.2d 214 (1997). Finally, a caption s terms must not understate or overstate the scope of the legal changes that the proposed measure would enact. Kain/Waller v. Myers, 337 Or. 36, 93 P.3d 62 (2004). In order to draft a proper caption, the Attorney General must examine the text of the measure and the changes the measure would enact in the context of existing law. Greenburg v. Myers, 340 Or. 65, 127 P.3d 1192 (2006) citing Kain/Waller, 337 Or. at 41 (emphasis added). The draft caption for IP 43 is legally deficient for a number of reasons. In the draft caption, the Attorney General uses the politically charged phrases assault weapons and large capacity magazines, with each phrase followed by the signal (defined). The Oregon Supreme Court has informed the Attorney General on several occasions that including politically charged phrases in describing the effects of a measure is impermissible. Carson v. Kroger, 351 Or. 508, 513, 270 P.3d 243 (2012); Earls v. Myers, 330 Or. 171, 999 P.2d 1134 (2000). There can be no doubt that in today s environment the phrase assault weapon is among the most politically charged terms in the public debate. A simple internet search of the phrase assault weapon reveals any number of polls that allegedly conclude the American public supports some degree of a ban on assault weapons without actually defining what an assault weapon is. See Why Ban Assault Weapons?, Jacobs, James, 37 Cardozo L.Rev. 681, n.4 (2015) The term assault weapon was used by the chief petitioners of IP 43 to capitalize on the recent popularity of the idea of banning assault weapons. There can be no legitimate argument to the contrary. The use of the phrase assault weapon is nothing more than a transparent attempt by the chief petitioners of IP 43 to garner support for their measure. By including the phrase DAY LAW & ASSOCIATES, PC Exhibit C SW SEQUOIA PARKWAY, SUITE 170, PORTLAND, OREGON T: F: W: Page 2 of 8