Ross A. Day * Matthew Swihart * LICENSED IN OREGON AND WASHINGTON LICENSED IN OREGON AND FLORIDA Via Facsimile (503.373.7414) 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 97310 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 250.005(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 250.035(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 250.035(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, 174-75, 903 P.2d 366 (1995). 15055 SW SEQUOIA PARKWAY, SUITE 170, PORTLAND, OREGON 97224 TEL: 503.747.2705 FAX: 503.624.2599 WEB: WWW.DAYLAWPC.COM
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
Page 3 of 8 assault weapon in the draft caption, the Attorney General is playing right into the hands of the chief petitioners. In addition to the use of the politically charged phrase assault weapons in the draft caption which is inappropriate for the reasons discussed above, the use of the politically charged phrase assault weapons in the draft caption is misleading. The Oregon Supreme 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 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. IP 43, itself, 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 also ban the following types of firearms: A common hunting rifle used for deer and elk with a detachable three round magazine and a muzzle break to reduce recoil would be considered an Assault Weapon. A common competition.22 target rifles would be considered an Assault Weapon because it's semi-automatic and has a thumbhole stock. The firearm pictured at right, which is a.22 caliber hunting rifle with a flash suppressor on the barrel Most people would not consider these types of firearms to be assault weapons, but under the definition of assault weapon in IP 43, they would be considered assault weapons and banned under IP 43. The draft caption does not inform the voter that the term assault weapon, as used in IP 43, is far broader than the term would imply. Accordingly, the draft caption must inform the voter of the breadth of IP 43 s reach, rather than simply parroting a politically charged term used by the chief petitioners to garner support for IP 43. Finally, the draft caption does not inform the voter of the full effect of IP 43. The draft caption focuses on only two of the prohibitions of IP 43: possession and transfer of assault weapons. IP 43 also prohibits the purchase, manufacture, importation and/or sale of
Page 4 of 8 assault weapons and large capacity magazines. See Section. 4 of IP 43. These are major effects of IP 43 that is not reflected in the draft caption. A more accurate ballot title caption should read: Criminalizes possession/purchase/transfer/sale/manufacture of certain operable pistols, rifles, shotguns, large capacity magazines (15 words) II. Results Statements ORS 250.035(2) requires the draft results statement be a simple and understandable statement of not more than 25 words that describes the result if the state measure is approved. The results statements shoul build on and be consistent with the caption. Baker v. Keisling, 312 Or. 385, 392, 822 P.2d 1162 (1991). As with the caption, the Results Statements cannot be inaccurate or misleading, and must accurately identify the subject matter of the measure. Towers v. Myers, 341 Or. 487, 145 P.3d 147 (2006). The "yes" result statement must explain to the voter or signer the result or results of enactment of the measure that would have the greatest importance to the people of Oregon. Novick v. Myers, 337 Or. 568, 574, 100 P.3d 1064 (2004); Lutz v. Rosenblum, 362 Or. 651, 413 P.3d 975(2018) ( Yes result statement should describe the most significant and immediate effects of the ballot initiative for the general public). The draft results statements read: 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 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 The draft yes results statement fails for the same reason the draft caption fails the draft yes results statement does not accurately explain to the voter what will happen if IP 43 is enacted. As explained above, IP 43 s definition of assault weapon is far broader than the commonly understood meaning of the term assault weapon. Accordingly, the draft results statement should accurately inform the signer/voter that IP 43 will affect the purchase, sale, possession, transfer, manufacture and/or importation of certain types of firearms. In Schoenheit v. Rosenblum, 365 Or. 783, 345 P.3d 436 (2015), the Oregon Supreme Court remanded a certified ballot title for modification to the Attorney General because the yes
Page 5 of 8 results statement was underinclusive. The Oregon Supreme Court determined that the certified results statement was deficient because the yes results statement used a broad phrase like adopt a regional plan managing urban growth rather than specifying types of planning were directly affected by the propose measure. Id. at 786. Likewise, the draft yes statement is underinclusive. The draft yes statement fails to inform the voter/signer what specific firearms are affected by IP 43. Just as the certified yes results statement in Schoenheit was underinclusive for not being more specific, so too is the draft yes results statement for IP 43. Finally, IP 43 creates new felonies for gun owners who run afoul of IP 43. Specifically, IP 43 makes unlawful possession or transfer of an assault weapon or large capacity magazine a Class B felony. See Section 4(6). The maximum term of imprisonment for a Class B felony is 10 years. ORS 161.605(2). This is a substantial change in the law that has extreme importance to Oregonians. Oregonians should be put on notice that IP 43 could make owning a weapon a felony. In Berman v. Kroger, 347 Or. 509, 225 P.3d 32 (2009), a challenge was brought to a certified ballot title affecting prison sentences and incarceration time. The petitioner in Berman challenged the certified ballot title, arguing that the certified caption and results statements should inform the voter/signer that the measure would increase the financial responsibility of the state to incarcerate prisoners for a longer period of time. Id. at 513. The Court in Berman did not agree that mention of the effect of the measure on the financial responsibility of the state should be included in the certified caption, the Court did agree that the certified yes results statement should inform the voter of the increase in financial responsibility the state would take on should the measure be approved by the voters. Id/ Likewise, while the draft caption may not be able to inform the voter/signer of the fact that IP 43 will create new felonies, there is plenty of room in the draft yes statement to inform the voter/signer of this extremely important change IP 43 would make to existing law. Voters/signers have to be put on notice that IP 43, if ultimately approved by the voters, would create a whole new class of felons in Oregon. Accordingly, we suggest the following results statements: Result of Yes Vote: Yes vote criminalizes possession, purchase, transfer, sale, manufacture, importation of certain operable pistols, rifles, shotguns, large capacity magazines (defined); creates new felonies; contains exceptions (24 words)
Page 6 of 8 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 (25 words) III. Summary The goal of the summary is to "'help voters to understand what will happen if the measure is approved'" and the '''breadth of its impact.''' Mabon v. Myers, 332 Or. 633, 640, 33 P.3d 988 (2001), (Quoting Fred Meyer, Inc. v. Roberts, 308 Or. 169, 175,777 P.2d 406 (1989)). The summary is the largest portion of the ballot title, and therefore affords the Attorney General space to highlight several features of a proposed ballot measure. Kane v. Kulongoski, 318 Or. 593, 601, 871 P.2d 993 (1994). The draft summary reads: 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 1, 2019. Other provisions. The draft summary suffers from the same infirmities as the draft caption and draft yes results statement in that the draft summary does not fully explain the scope of IP 43. The draft summary, like the other portions of the draft ballot title, focuses on possession or transfer of certain types of firearms and large capacity magazines, when IP 43 prohibits much more than just possession or transfer IP 43 makes it illegal to purchase, sell, manufacture or import certain firearms and large capacity magazines as well. The draft summary must be corrected to accurately reflect what IP 43 actually does. Further, just as the draft caption and draft yes results statement used the politically charged phrase assault weapon, so too does the draft summary. For the reasons stated above, not only is the use of the phrase assault weapon inappropriate, it is also underinclusive. The draft summary must be modified to reflect the scope of firearms that are affected by IP 43.
Page 7 of 9 Another major effect of IP 43 is the applicability of IP 43 to persons who own covered firearms and large capacity magazines prior to the adoption of IP 43. In my experience, most people believe that if possession of something is subsequently made illegal, the prohibition applies only moving forward, especially when that something is an item that is typically worth anywhere between several hundred to several thousands of dollars such as a firearm. Most people would agree that it is fundamentally unfair to make it illegal to possess an item that cost you thousands of dollars and was legal to possess/own at the time you acquired the item. The summary must inform the voter/signer that IP 43 applies to owners of firearms and large capacity magazines regardless of when the person came into ownership of the item. This is a significant effect of IP 43 that is currently missing from the draft summary. Accordingly, we suggest the following summary: Summary: Measure criminalizes possession, sale, purchase, transfer, manufacture or importation of certain operable pistols, shotguns, rifles and large capacity magazines. Measure applies regardless of when/how person came into possession of covered items including through inheritance. Measure creates exceptions for military and law enforcement, and for persons authorized by State Police after a criminal background check. Otherwise possession, sale, purchase, transfer, manufacture or importation of certain operable pistols, shotguns, rifles and large capacity magazines is a Class B felony. Within 120 days of effective date of Measure (January 1, 2019) persons possessing covered items must export, sell, surrender to law enforcement, make inoperable, or register covered items with State Police. Large capacity magazine is ammunition feeding device with capacity of more than ten rounds. Other provisions. (125 words) IV. Conclusion Any measure purporting to infringe upon the fundamental civil rights of Oregonians should be carefully crafted to protect the fundamental freedoms our founding fathers deemed to be so important. IP 43 falls well short of this standard. Likewise, an explanation of a ballot measure like IP 43 that would substantially impact the basic civil rights of Oregonians must be equally well crafted with a particular eye towards fully informing the signers and/or voters of the repercussions of such a measure. The draft ballot title also falls well short of this standard. Of course, the 800-pound elephant in the room is the fact that the Attorney General is no fan of Article I, Section 27 of the Oregon Constitution, or the Second Amendment to the United States Constitution. See https://www.ellenrosenblum.com/2018/03/08/how-we-end-our-national-gun-
Page 8 of 8 violence-epidemic/ (last visited May 8 th, 2018); Brief of Amicus Curiae, Wrenn et. al. v. District of Columbia, et. al. No. 1:15-cv-00162 (D.C. Cir. 2017). In fact, it is highly likely that the Attorney General is a strong supporter of IP 43, which calls into question whether the Attorney General can fairly and objectively draft a ballot title that complies with the law. The Attorney General is up for re-election, and no doubt she would love to curry favor with supporters of IP 43 in order to win their support for her re-election effort. A cunning method of winning their support would be to draft a ballot title for IP 43 that misleads and confuses voters into supporting IP 43. The Attorney General s first attempt at drafting a ballot title for IP 43 suggests she is more concerned with currying favor for her re-election bid than actually following the law. The draft ballot title ignores key provisions of IP 43, uses politically charged language from IP 43 that was deliberately inserted into the measure to mislead voters into supporting IP 43, and fails to inform the voters of the true impact IP 43 will have on their constitutional rights. Hopefully the Attorney General will take the foregoing comments to heart and revise the draft ballot title as requested above. The draft ballot title, for the reasons expressed above, does not comply with the requirements of ORS 250.035 and should be re-written as described above. Sincerely, Ross Day On behalf of electors Ross Day, Dominic Aiello and Asha Aiello and the Oregon Outdoor Council Association