I N I T I A T I V E P E T I T I O N

Transcription

1 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 Summer Davis, Compliance Specialist DATE: July 26, 2017 SUBJECT: Initiative Petition Certified Ballot Title The Elections Division received a certified ballot title from the Attorney General on July 25, 2017, for Initiative Petition , proposed for the November 6, 2018, General Election. Caption Limits service by state legislators: No more than eight years in any twelve-year period Chief Petitioners Selma Moon Pierce 2007 State St. Salem, OR William C. Pierce 2007 State St. Salem, 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. If this notice is not timely filed, the petition to the Supreme Court may be dismissed. Appeal Due August 8, 2017 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

2 ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION July 25, 2017 Stephen N. Trout Director, Elections Division Office of the Secretary of State 255 Capitol St. NE, Ste. 501 Salem, OR Re: Proposed Initiative Petition Limits Service by State Legislators: No More Than Eight Years in Any Twelve-Year Period. DOJ File #BT-19-17; Elections Division # Dear Mr. Trout: We have received the comments submitted in response to the draft ballot title for prospective Initiative Petition #19 (2018). Comments were submitted by Mr. Kevin Mannix, on behalf of chief petitioners Ms. Selma Moon Pierce and Mr. William C. Pierce, and on his own behalf; by Mr. Harry Wilson, on behalf of Mr. Matt Swanson; and by Hon. Secretary Dennis Richardson, on his own behalf. This letter summarizes the comments we received, our responses to those comments, and the reasons why we did not make changes to the ballot title in light of the submitted comments. ORAP 11.30(6) requires this letter to be included in the record in the event that the Oregon Supreme Court reviews the ballot title. We also enclose a copy of the certified ballot title. A. Procedural Constitutional Requirements Mr. Mannix asserts that the proposed measure adheres to all applicable procedural constitutional requirements. Those issues are beyond the scope of the ballot title drafting process. See OAR (providing for separate review process by Secretary of State to determine whether measure complies with constitutional procedural requirements for proposed initiative measures). Accordingly, we do not address those issues here. B. The Caption The ballot title must include [a] caption of not more than 15 words that reasonably identifies the subject matter of the state measure. 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 SW Market Street, Portland, OR Telephone: (971) Fax: (971) TTY: (503)

3 Page 2 (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). The draft caption provides: Limits service by state legislators: No more than eight years in any twelve-year period 1. Comments by Mr. Mannix Mr. Mannix comments that the phrase, Limits service, may mislead the average voter, who may not know what is meant in this context by service. Mr. Mannix illustrates the asserted ambiguity by explaining that a voter may wonder if service refers to service on boards or commissions. Mr. Mannix thus recommends that the phrase, Limits service by state legislators, be replaced with, Term limits for state legislators. 2. Comments by Mr. Wilson Mr. Wilson comments that the draft caption fails to inform voters that the Initiative applies retroactively, subject to certain exceptions, and that, moreover, [t]he draft caption fails to identify one of the actual major effects of the Initiative. Here, Mr. Wilson notes that the proposed initiative has two major effects. The first is to limit the length of service for state representatives and senators. The second is to apply [that] time limitation retroactively, subject to exceptions. Regarding the second effect, Mr. Wilson comments that the initiative contains two limited exceptions. First, he notes, the Initiative permits any representative or senator who is elected in November 2018 to serve out the new term to which the representative or senator is elected, even if it exceeds the time limitation. Second, [the Initiative] permits any senator whose term continues until January 2021 to serve out that term, even if it exceeds the time limitation. But [d]espite those exceptions, Mr. Wilson contends, the Initiative would prohibit many representatives and senators from completing their current terms. (Emphasis added). He asserts that if the Initiative passes on November 6, 2018, it will become effective immediately, and that, because the term of office for state legislators continues until the second Monday of January following the election for their office, Sections 2 and 3 of the Initiative will prohibit representatives who have served more than eight of the last 12 years from continuing to serve effective immediately, preventing them from serving out the more than two months remaining in their terms. He also contends that state senators whose terms expire in January 2019 and who have served more than eight of the last 12 years will also be ineligible to serve out the remainder of their terms.

4 Page 3 This, Mr. Wilson asserts, would force nearly a third of representatives and more than a fifth of senators out of office before completion of their terms. He adds that [i]mmediately prohibiting 25 members of the Oregon legislature from serving out their terms could have profound consequences, including crippl[ing] the operation of the state Emergency Board, remov[ing] the last two officials from the gubernatorial line of succession, and interrupt[ing] the operation of state boards and commissions[.] Based on the foregoing analysis, Mr. Wilson recommends that the draft caption * * * be modified to alert voters that the Initiative applies retroactively, subject to certain exceptions, so that voters know and can examine all of the Initiative s major effects. 3. Comments by Secretary Richardson Secretary Richardson does not object to the draft caption or suggest any changes thereto. 4. Our Response to the Comments The comments regarding the draft caption present two issues: first, whether the phrase Limits service will mislead the average voter; and second, whether the caption must notify voters that the proposed measure applies retroactively. We address those issues in turn. First, we respectfully disagree with Mr. Mannix s contention that the phrase, Limits service, may mislead the average voter. We doubt that the average voter will wonder whether that phrase applies to some form of service on legislative committees, as opposed to service as a senator or representative. Moreover, Mr. Mannix s proposed substitution Term limits for state legislators carries its own risks. For one, the measure does not actually impose term limits, per se, as that phrase is commonly understood. The measure limits years of service within a given period of years; it does not limit the number of terms that may be served, whether in that given time period (for example, legislators may serve fractions of terms, if appointed to fill a vacancy), or over the course of a lifetime. On balance, we believe that the phrase, Limits service, is a concise and easily understood summary of the proposed initiative s major effect. Accordingly, we decline to modify the draft caption as suggested by Mr. Mannix. Second, we address the question of whether the draft caption should be modified to notify voters that the proposed measure applies retroactively. Here, Mr. Wilson argues that the proposed measure, [d]espite th[e] exceptions it contains, would prohibit many representatives and senators from completing their current terms. Because such divestment from office is a major effect, he argues, the caption must be modified to alert voters that the Initiative applies retroactively, subject to certain exceptions, so that voters know and can examine all of the Initiative s major effects. Mr. Wilson s comment raises the critical question presented here: Will the proposed initiative, if enacted, divest currently serving legislators from office? To answer that question, we first consider the initiative on its face. We then consider the initiative in the context of existing law.

5 Page 4 On its face, it seems possible although speculative that the initiative could divest currently serving legislators from office. As noted, the proposed initiative prohibits state legislators from serving more than eight years in any twelve-year period, with two exceptions: a senator or representative elected in November 2018 may serve out that full term ; and a current senator whose term continues until January 2021 may continue to serve in such position[.] Those exceptions would seem to cover the vast majority of legislators. To illustrate, general elections are held in November of each even-numbered year. ORS (1). Terms for both senators and representatives commence on the second Monday in January of the odd-numbered year following the general election. Or Const, Article IV, 4(1). State senators serve 4-year terms. Id. Representatives serve 2-year terms. Id. Thus, the exceptions would cover any currently serving legislator who is re-elected in November 2018, and any currently serving senator who was last elected in November 2016 (because such a senator would have begun serving that four-year term in January 2017, and the term would continue until January 2021). However, those exceptions would not, on their face, apply to some currently serving legislators who are not re-elected in November For example: A representative last elected in November 2016, who assumed office in January 2017, and whose term continues until January 2019, but who was not re-elected in November 2018, could be disqualified from serving the remainder of his or her term upon passage of the measure. Such a representative would not fall under the first exception contained in the measure, because such a representative would not have been elected in November A senator last elected in November 2014, who assumed office in January 2015, and whose term continues until January 2019, but who was not re-elected in November 2018, could be disqualified from serving the remainder of his or her term upon passage of the measure. Because such a senator was not elected in November 2018, he or she would not be covered by the first exception. And because such a senator s term does not continue until January 2021, he or she would not be covered by the second exception. Additionally, even with respect to those legislators who are covered by the first exception, the measure still might albeit, temporarily disqualify currently serving legislators from holding office. That is, the phrase, may serve out that full term, (emphasis added), might be read to refer only to the new term to which the legislator has just been elected. If that is the case, then such a legislator might still be disqualified from holding office from the effective date of the measure until the date that the new term begins. We believe that any such results remain speculative, however, for two reasons. First, it is speculative that any particular legislator will retire, or will fail to win re-election, in November Thus, assuming that the initiative is read not to create the temporary divestment described above, it is speculative that any given legislator will fail to qualify for an exception. Second, and perhaps more fundamentally, it is far from certain that the initiative will be interpreted to require

6 Page 5 any such temporary divestment. And even if the initiative is so interpreted, it is further speculative that a statute can limit constitutionally-prescribed terms. In other words, when the statute is read within the context of the existing law here, principles of statutory interpretation on the one hand, and constitutional strictures on the other it is speculative that the initiative can divest any currently serving legislator from office. The mere fact that the divestment effect is speculative, however, is not the end of the analysis. The question remains whether, and to what extent, the Attorney General must (or may) relay the possible effects of the proposed initiative. That question necessarily reduces to another question: To what extent must (or may) the Attorney General engage in statutory or constitutional interpretation, when describing a proposed measure? Because that question is fundamental not only to the issue of whether the caption should be modified, but to the draft ballot title as a whole, we address it at length here. As an initial matter, we note that, in Nesbitt v. Myers, 335 Or 567, 73 P3d 925 (2003), the Oregon Supreme Court considered a certified ballot title for a proposed measure that would have amended the state constitution to impose term-limits, and thus would have, with certainty, divest[ed] of their offices members of the legislature whose length of service exceed[ed] the limits contained in the proposed measure. Id. at 569. The certified ballot title failed to include that effect in the caption. See id. The court concluded that the divestment provision was significant enough that it was a subject of the proposed measure, and thus, it referred the ballot title to the Attorney General for modification. Id. at 572, 577. Accordingly, Nesbitt stands for the proposition that, if a ballot measure is certain to result in the divestment of currently serving legislators from office, that effect must be contained in the caption of the ballot title. 1 Nesbitt, however, is of limited utility here. Because the divestment of sitting legislators is not a certain result of the proposed initiative, Nesbitt does not require that the caption reflect that uncertain possibility. The question remains whether any other authority requires that the caption contain that possibility. Here, we observe that, in the past, the Oregon Supreme Court often stated that determinations of the constitutionality of a proposed measure are not within the scope of the ballot title certification process. Nearman v. Rosenblum, 358 Or 818, 825, 371 P3d 1186 (2016). Thus, in Kane v. Kulongoski, 320 Or 273, 882 P2d 588 (1994), the court determined that the ballot title at issue could not permissibly take into account the fact that the measure could be preempted by federal law. See Nearman, 358 Or at (quoting Kane, 320 Or at ). More recently, however, the Oregon Supreme Court has refined and, indeed, retreated from the seemingly categorical stance that it took in Kane and earlier cases. Nearman, 358 Or at 826. The court has recognized, for example, that the Attorney General has authority to engage in basic interpretation of a measure to identify its subject or determine its major effect 1 The Nesbitt court also held that such a result which was, again, a certain effect of the proposed measure at issue must also be contained in the Yes vote result statement. 355 Or at

7 Page 6 and, in so doing, to consider the changes that the proposed measure would enact in the context of existing law. Id. (quoting Rasmussen, 350 Or at 285) (emphasis added). Thus, in Christ/Tauman v. Myers, 339 Or 494, 123 P3d 271 (2005), for example, the court considered whether the Attorney General should have interpreted a ballot title so as to determine and indicate whether the proposed measure would amend the Oregon Constitution or have the force of a statute. Nearmann, 358 Or at (summarizing Christ/Tauman, supra). The court concluded that making that determination was part of the Attorney General s obligation to reasonably identify the subject of the measure. Id. (citing Christ/Tauman, 339 Or at 500). Thus, as the court later explained, the Christ/Tauman decision underscores the obvious point that, although neither this court nor the Attorney General may speculate about the possible secondary effects of a proposed measure or adopt one of several plausible interpretations of the measure for purposes of the ballot title, the preparation of a ballot title necessarily requires some level of interpretation of the measure. Nearman, 358 Or at 828 (quoting Wolf v. Myers, 343 Or 494, 501, 173 P3d 812 (2007)). The court went further in Caruthers v. Myers, 344 Or 596, 189 P3d 1 (2008). Nearman, 358 Or at 828 (citing Caruthers, supra). There, the court considered whether the Attorney General could go beyond the words of a measure to interpret and describe its subject matter or its effects, where the measure undisputedly conflicted with federal law. Id. (citing Caruthers, 344 Or at ) (emphasis added). As the court later explained in Nearman, The proposed measure in Caruthers would have changed Oregon law to provide, among other things, that no union shall be required to represent or bargain for an employee who chooses not to be a member of the union. [344 Or] at 598, 189 P3d 1 (internal quotation marks omitted). However, the petitioner argued, and this court agreed, that settled federal law requires a private sector union to represent all the employees in a bargaining unit and that that federal requirement will continue to apply notwithstanding any changes that the proposed measure might make to state law. Id. at 599, 189 P3d 1. The [Caruthers] court concluded: Not only is the law settled but its application here is clear. Under settled law, the proposed measure would have no effect on a private sector union s federal obligation to represent all the employees in a bargaining unit. Id. at 601, 189 P3d 1. Based on that interpretation, the court concluded that the ballot title improperly failed to place the proposed measure in the context of existing law. Id. (internal quotation marks and citations omitted). * * *

8 Page 7 Nearman, 358 Or at (quoting Caruthers, supra) (parentheticals in original; alterations supplied). In reaching that conclusion, the Caruthers court distinguished an earlier decision, Sizemore v. Myers, 326 Or 220, 953 P2d 360 (1997): In [Sizemore], this court held that the ballot title in that case need not discuss the effect that a proposed constitutional amendment to prohibit regional governments would have on Oregon s constitutional home rule provisions. 326 Or at 231, 953 P2d 360. The court reasoned that discussion of that issue would require extensive legal interpretation, not only of the proposed initiative measure, but also of the interaction of the initiative measure with other constitutional provisions. Id. This aspect of the case does not present the same problem that concerned the court in Sizemore. In Sizemore, the relationship between the proposed measure and existing law was complex and unresolved. Here, the relationship between the proposed measure and existing federal law is straightforward and settled. When petitioners objected to the Attorney General s proposed ballot title on the ground that, under settled federal law, the effect of the measure would be more limited than the ballot title explained, Sizemore provided no basis for avoiding the Attorney General s obligation to describe the proposed measure accurately. Nearman, 358 Or at 829 (quoting Caruthers, 344 Or at (quoting Sizemore, 326 Or at 231)) (emphasis added; alterations supplied). Thus, having traced the history of its interpretation of ORS (2), the Nearman court determined that the issue before it was not as clear-cut as Caruthers. 358 Or at 829. That is, [a]lthough the Attorney General s federal preemption analysis ha[d] force, it [wa]s neither undisputed nor in light of the parties competing arguments and submissions a settled issue. Id. (alterations supplied). Because the preemption question was sufficiently complex and uncertain, the court concluded that the ballot title proceeding d[id] not furnish an appropriate opportunity to answer it. Id. (alterations supplied). What we glean from the history traced in Nearman, and from the holding of that case, is that there is a continuum when it comes to the Attorney General s responsibility (or even legal authority) to apprise voters of whether an initiative, in whole or in part, may be given effect. On one side of the continuum are cases such as Caruthers, where the relationship between the proposed measure and [conflicting or preempting] law is straightforward and settled. Nearman, 358 Or at 829 (quoting Caruthers, 344 Or at 602) (alterations supplied). In such cases, in order to fulfill its statutory obligation to describe the effect of a measure in the context of existing law, it appears to be the Attorney General s duty to describe the effect of the measure as if it had already been (or perhaps will be) determined unconstitutional or preempted. On the other side of the continuum are cases such as Nearman, where the question of preemption or constitutionality is neither undisputed nor settled. See 358 Or at 829. In such cases, i.e., where the question

9 Page 8 is sufficiently complex and uncertain, it is the Attorney General s responsibility simply to relate the effect of the measure by its terms. See id. at We believe that the instant case falls somewhere between those extremes. First, under familiar principles of statutory interpretation, we believe that it is unlikely that the initiative will be interpreted to require the immediate, temporary divestment from office of a currently serving legislator. The paramount goal of statutory interpretation is to determine and give effect to the intent of the legislature. 2 State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009); see ORS (1)(a) (courts shall pursue the intention of the legislature ). Courts begin that inquiry by examining the text and context of the statute, along with any pertinent legislative history. Habitat for Humanity v. Dept. of Rev., 360 Or 257, 261, 381 P3d 809 (2016) (citing Comcast Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014)). If the legislature s intent remains unclear after examining those sources, courts may resort to general maxims of statutory construction. Habitat for Humanity, 360 Or at 261 (citing Gaines, 346 Or at 172). Here, the meaning of the language of the first exception, may serve out that full term, seems clear. For one, to serve out, as that phrase is commonly understood, connotes a sense of continuity. See Gaines, 346 Or at 175 (courts give statutory terms of common usage their plain, natural, and ordinary meaning ). Thus, the phrase, may serve out that full term, most naturally means, may serve until the completion of that full term. That is especially so when read in context along with the second exception, permitting current senators to continue to serve in such position. 3 Moreover, it is clear that the intent of the exceptions is to prevent currently serving legislators from being divested from office. Finally, to the extent that it is necessary to resort to maxims of construction, it would seem an absurd result to require a currently serving legislator to step down between the effective date of the measure and the beginning of the new term. See State v. Garcias, 298 Or 152, 159, 690 P2d 497 (1984) (courts endeavor[] to avoid interpreting a statute in a manner which will produce absurd results ). 2 Similar principles of statutory interpretation apply to statutes enacted through voter-initiated measures: We have recognized that the legislative power is a unitary authority that rests with two lawmaking bodies, the legislature and the people. The exercise of that power is always coequal and co-ordinate, regardless of which of the two entities wields it. For that reason, we apply a similar method of analysis to statutes enacted by voter-initiated measures as we do to statutes enacted by the legislature, with the goal of discerning the intent of the voters who passed those initiatives into law. Hazell v. Brown, 352 Or 455, 465, 287 P3d 1079 (2012) (internal citations omitted). 3 One might argue that the phrase, may serve out that full term, when read in contrast to the phrase, may continue to serve in such position, refers only to the new term. But such a reading is unlikely, given the manifest intent of the exceptions as a whole: to prevent the divestment of currently serving legislators from office.

10 Page 9 But even if the initiative were to be interpreted to require the immediate divestment from office of a currently serving legislator, that result is further speculative, because of the operation of constitutional principles. Here, the Oregon Constitution provides that [t]he term of each Senator and Representative shall commence on the second Monday in January following his election, and shall continue for the full period of four years or two years, as the case may be, unless a different commencing day for such terms shall have been appointed by law. Or Const, Art IV, 4(1) (emphasis added). Thus, the constitution mandates that state legislative terms continue for the full period of the constitutionally-prescribed term, unless a different commencing day is appointed by law. That may seem unambiguous. And it is axiomatic that a statute cannot violate the state constitution. See Brusco Towboat v. State Land Bd., 284 Or 627, 633, 589 P2d 712 (1978) ( The power of the legislature is plenary, except as it may be limited by the federal or state constitution. ). At the same time, the Attorney General is aware of no authority expressly holding that a statute may not impose limitations on a state legislator s qualifications to complete a term. Accordingly, in light of the fact that any divesting effect here depends largely on speculative future contingencies, is likely to affect only a small number of legislators (if at all), requires an unlikely statutory interpretation, and may very well be held unconstitutional, we conclude that such effect is too minor and remote to demand presentation in the ballot title caption. Thus, we decline to modify the draft caption. But as explained below, we reach a different conclusion with respect to the vote result statements and summary. We therefore certify the following caption: Limits service by state legislators: No more than eight years in any twelveyear period C. The Yes Vote Result Statement We next consider the draft Yes vote 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 limits state representatives/senators to eight years total legislative service in any twelve-year period. May prevent some current legislators from completing term. 1. Comments by Mr. Mannix Mr. Mannix comments that the draft Yes vote result statement reasonably fulfills the requirements of the statute, with one glaring exception: the phrase, May prevent some current legislators from completing term.

11 Page 10 Mr. Mannix raises two primary objections to that phrase. First, he argues, it renders the language of the Yes vote result statement not parallel with the language of the No vote result statement, infra. (Emphasis in original). Second, the phrase is speculative and runs counter to the provisions of the Oregon constitution, relating to terms of office. Specifically, Mr. Mannix notes that Article IV, section 4(1) of the Oregon Constitution provides that legislative terms shall continue for the full period of four years or two years, as they case may be, unless a different commencing day for such terms shall have been appointed by law. (Emphasis in original). Thus, Mr. Mannix argues, if the initiative is approved on November 8, 2018, it will go into effect as a statute 30 days later, by operation of Oregon Constitution, Article IV, Section 1(4)(d) i.e., on December 8, Although the initiative applies retroactively, it contains exceptions for representatives or senators elected in November 2018, as well as senators who are currently serving a term, and who are scheduled to continue to serve until January But [t]he question arises, he writes, as to any Senator or Representative who retires or is defeated in the November 2018 election. With respect to such legislators, Mr. Mannix asks, [a]re they excluded from service, under the initiative provisions, between December 8, 2018 and January 8, 2019, when new terms begin? Mr. Mannix believes that, because the initiative cannot be construed to contravene the constitutional provision as to terms of office, the initiative cannot force the small group of possibly affected legislators out of office 30 days before the end of their terms. Thus, he concludes, the challenged sentence is speculative, and [i]f it is appropriate to address the subject of the possible effect on current-serving legislators who retire or who are defeated, this discussion should be added to the Summary. That is especially so, he writes, because the potential group of [legislators] who may have circumscribed term reductions of 30 days is small and this event, even if constitutional, would occur only once: at the inception of the new statute. 2. Comments by Mr. Wilson Mr. Wilson comments that the draft yes statement should be clarified to state that the initiative will prevent many current legislators from completing their terms. (Emphasis in original). He adds that there is no doubt that nearly one-third of current representatives and more than one-fifth of current senators will be unable to complete their terms if the Initiative passes. Thus, he concludes, [t]he draft yes statement should be modified to make that definite effect clear. 3. Comments by Secretary Richardson Secretary Richardson comments about the phrase, May prevent some current legislators from completing term. Specifically, he fear[s] that featuring this microscopic impact in the prominence of the Yes result statement could create more confusion than clarity, and that, [w]hile it makes sense to include this phrase in the summary, the Yes result statement would probably read better if this phrase was replaced with Applies to current legislators.

12 Page 11 Although he acknowledges that the current wording is technically correct as there may be very limited cases where a few current legislators who are not reelected cannot serve the last few days of their term between when the initiative is certified December 6 and the end of their term on January 8, Secretary Richardson asserts that the likelihood of this making a practical difference because the legislator is called into a special session during this time is very low, having occurred only four times in the last hundred years. (Emphasis added). Thus, it appears * * * that this phrase s level of technicality and remoteness is unnecessary, and including it in the Yes result statement does not justify the potential confusion it may cause. Further, Secretary Richardson believe[s] the present wording implies that the negative effect on sitting legislators will be a relatively common situation, which is not correct. Thus, Secretary Richardson recommends removing the challenged phrase. He asserts that inclusion [of that phrase] in the summary would be sufficient. 4. Our Response to the Comments After considering the above comments, we decline to modify the draft Yes vote result statement. Here, the comments all focused on the question of whether the Yes vote result statement should include the phrase, May prevent some current legislators from completing term. As a general matter, and for the reasons detailed above, we believe that this eventuality is speculative enough that it need not appear in the caption, but non-speculative enough that it should appear in the Yes vote result statement. Thus, we respectfully reject Mr. Mannix s and Secretary Richardson s comments that the phrase is too speculative or minor to appear in the Yes vote result statement. At the same time, we respectfully reject Mr. Wilson s comment that the phrase should be modified to indicate that the the initiative will prevent many current legislators from completing their terms. (Emphasis in original). Given that any such result is speculative, we believe that the current language, May prevent some current legislators from completing term, conveys to voters the initiative s potential divesting effect in language commensurate to such effect s likelihood or more appropriately, unlikelihood of occurring. We also respectfully reject Mr. Mannix s assertion that the Yes vote result statement must be modified because the inclusion of the phrase, May prevent some current legislators from completing term, renders the Yes and No vote result statements not parallel in violation of ORS (3). While Mr. Mannix is correct that there is no corresponding phrase in the No vote result statement, we believe that some level of asymmetry is necessary here in order to apprise voters of the possibility that some current legislators may be prevented from completing their terms. See ORS (3) (requiring that the Yes and No vote result statements be parallel to the extent practicable ). Finally, we respectfully disagree with Secretary Richardson s suggestion that the phrase, May prevent some current legislators from completing term, should be replaced with the phrase, Applies to current legislators. Secretary Richardson points out that the likelihood of the legislature being called into special session between the effective date of the measure and the start of new legislative terms in January 2019 is low. We do not disagree with that point. But if the measure were to pass and a special session during that period were necessary, determining

13 Page 12 the proper composition of the legislature would be difficult and could even require litigation a potentially serious consequence. In our view this bolsters the case that the Yes vote result statement should apprise voters that some current legislators may be prevented from completing their terms. Secretary Richardson s proposed substitution, Applies to current legislators, is certainly accurate. But we do not think it is as informative as the language in the draft ballot title. We therefore certify the following Yes Vote Result Statement: Result of Yes vote: Yes vote limits state representatives/senators to eight years total legislative service in any twelve-year period. May prevent some current legislators from completing term. D. The No Vote Result Statement We next consider the draft No vote 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) (alterations in McCann; emphasis in both McCann and Novick/Crew). The draft No vote result statement provides: Result of No Vote: No vote retains current state law, which does not limit years of service in the State Legislative Assembly. 1. Comments by Mr. Mannix As noted, Mr. Mannix comments that the Yes vote result and No vote result statements are not sufficiently parallel. However, Mr. Mannix suggests changes only to the Yes vote result statement. Mr. Mannix does not suggest any changes to the No vote result statement. 2. Comments by Mr. Wilson Mr. Wilson does not comment on the No vote result statement. 3. Comments by Secretary Richardson Secretary Richardson does not comment on the No vote result statement. 4. Our Response to the Comments It does not appear that any commentor has suggested any changes to the No vote result statement. Although, as Mr. Mannix points out, the inclusion of additional language in the

14 Page 13 Yes vote result statement does, to some extent, render the two statements non-parallel, we believe that the language is necessary in the Yes vote result statement, and that no corresponding changes are warranted (or feasible) to the No vote result statement. We further believe that the two statements, as written, comply with the requirement in ORS (3), that such statements be parallel to the extent practicable. Accordingly, we decline to make any changes to the draft ballot title No vote result statement. We therefore certify the following No vote result statement: Result of No vote: No vote retains current state law, which does not limit years of service in the State Legislative Assembly. E. The Summary We next consider the draft 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: Current law does not limit the number of years persons may serve in the State Legislative Assembly. Measure provides: No person shall serve as a member of the Legislative Assembly for more than eight years in any period of twelve years. Service as state senator and state representative both count toward eight-year limit. For example, a state legislator who serves four years as representative, followed by four years as senator, would be ineligible for further legislative service during next four years. Measure applies retroactively; prior and current membership count toward service limit. However, legislators elected in November 2018 and current Senators whose service continues until January 2021 may finish their current terms. Measure effective upon passage; may prevent some current legislators from completing term. 1. Comments by Mr. Mannix Mr. Mannix comments that all of the draft Summary is appropriate except the last sentence. First, he argues that voters will not realize that effective upon passage means 30 days after the vote. Since retroactive impact is a possible issue, this portion of the last sentence should read: Measure effective 30 days after election. Second, Mr. Mannix asserts that [t]he remainder of the last sentence, may prevent some current legislators from completing term, is over-broad. Thus, [if] speculation is to be allowed, and if the constitutional provision as to terms does not supersede the retroactive effect, the completing term provision should at least read: May shorten term of some current legislators by 30 days.

15 Page Comments by Mr. Wilson Mr. Wilson comments that the draft summary is deficient because it states that the Initiative may prevent some current legislators from completing term. Because the initiative will prevent many legislators from completing their terms, he contends, the summary should be modified to make the definite effect of the Initiative clear to voters. (Emphasis in original). 3. Comments by Secretary Richardson As noted, Secretary Richardson comments that the phrase, May prevent some current legislators from completing term, is undesirable in the Yes vote result statement. However, Secretary Richardson believes that the inclusion of that phrase in the summary makes sense[.] 4. Our Response to the Comments After considering the above comments, we decline to make any changes to the draft ballot title summary. For the reasons explained in detail above, we believe that the phrase, may prevent some current legislators from completing term, refers to an effect that is nonspeculative enough that it must be included in the summary. But also for the reasons explained above, we do not think this effect certain enough that the summary should be modified, as Mr. Wilson suggests, to inform voters that the measure will prevent many legislators from completing their terms. (Emphasis in original). Finally, we address Mr. Mannix s comment that, although the measure specifies that it becomes effective upon passage, the Oregon Constitution provides that measures become effective 30 days after passage. See Or Const, Art IV, 1(4)(d) (specifying that an initiative or referendum measure becomes effective 30 days after the day on which it is enacted or approved by a majority of the votes cast thereon ). Thus, Mr. Mannix argues, the measure would not take effect until December 2018, at which point, it could at most prevent a legislator from serving out the remaining 30 days of his or her term. Although Mr. Mannix may be correct about the prospective interplay between the measure and the state constitution in this context, we believe that such a level of specificity is neither necessary nor warranted. Accordingly, we respectfully reject Mr. Mannix s suggestion to replace the sentence, Measure effective upon passage; may prevent some current legislators from completing term, with the phrases, Measure effective 30 days after election, and, May shorten term of some current legislators by 30 days. In short, we agree with Secretary Richardson s comment that the inclusion of the challenged phrase in the draft ballot title summary makes sense, and we decline to modify the summary on the basis of any of the submitted comments. We do, however, on our own initiative, correct the errant capitalization of the word, Senator, in the second to last sentence of the summary.

16 Page 15 We certify the following summary: Summary: Current law does not limit the number of years persons may serve in the State Legislative Assembly. Measure provides: No person shall serve as a member of the Legislative Assembly for more than eight years in any period of twelve years. Service as state senator and state representative both count toward eight-year limit. For example, a state legislator who serves four years as representative, followed by four years as senator, would be ineligible for further legislative service during next four years. Measure applies retroactively; prior and current membership count toward service limit. However, legislators elected in November 2018 and current senators whose service continues until January 2021 may finish their current terms. Measure effective upon passage; may prevent some current legislators from completing term. F. Conclusion We respectfully decline all suggested changes to the draft ballot title, we correct the errant capitalization of the word, Senator, in the draft summary, and we certify the attached ballot title. Sincerely, /s/ Jacob Brown Jacob Brown Assistant Attorney General jacob.brown@doj.state.or.us Enclosure Selma Moon Pierce 2007 State St. Salem, OR Harry Wilson 1211 SW Fifth Avenue Suite 3000 Portland, OR William C. Pierce 2007 State St. Salem, OR Dennis Richardson 900 Court St. NE #136 Salem, OR Kevin Mannix 2009 State St. Salem, OR 97301

17 Certified by Attorney General on July 25, /s/ Jacob Brown Assistant Attorney General BALLOT TITLE Limits service by state legislators: No more than eight years in any twelve-year period Result of Yes Vote: Yes vote limits state representatives/senators to eight years total legislative service in any twelve-year period. May prevent some current legislators from completing term. Result of No Vote: No vote retains current state law, which does not limit years of service in the State Legislative Assembly. Summary: Current law does not limit the number of years persons may serve in the State Legislative Assembly. Measure provides: No person shall serve as a member of the Legislative Assembly for more than eight years in any period of twelve years. Service as state senator and state representative both count toward eight-year limit. For example, a state legislator who serves four years as representative, followed by four years as senator, would be ineligible for further legislative service during next four years. Measure applies retroactively; prior and current membership count toward service limit. However, legislators elected in November 2018 and current senators whose service continues until January 2021 may finish their current terms. Measure effective upon passage; may prevent some current legislators from completing term.