Kendoll v. Rosenblum , 358 Or. 282 ( 2015 )

282 November 27, 2015 No. 48
IN THE SUPREME COURT OF THE
STATE OF OREGON
Cynthia KENDOLL,
Petitioner,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon
Respondent.
(SC S063457)
On petition to review ballot title filed August 12, 2015;
considered and under advisement on October 13, 2015.
Eric C. Winters, Wilsonville, filed the petition and reply
for petitioner.
Shannon T. Reel, Assistant Attorney General, Salem,
filed the memorandum for respondent. With her on the brief
were Ellen F. Rosenblum, Attorney General, and Paul L.
Smith, Deputy Solicitor General.
LINDER, J.
The ballot title is referred to the Attorney General for
modification.
Case Summary: On petition to review ballot title. Initiative Petition 40 (2016)
would expand the requirements for governmental use of the English language
and limit the government’s ability to require the use of languages other than
English in certain circumstances. Specifically, the measure would: (1) require the
use of the English language in official governmental actions and services (with
exceptions); (2) ensure eligibility and opportunities for English-only speakers;
and (3) authorize lawsuits to enforce the above provisions. Petitioners challenged
the caption, the “yes” result statement, and the summary in the certified bal-
lot title. Held: (1) the caption must be modified to notify readers of the scope of
change the proposed measure would make and to sufficiently explain the subject
matter of the measure; and (2) the “yes” result statement must be modified to
clearly and accurately describe the significant components of the measure.
The ballot title is referred to the Attorney General for modification.
Cite as 358 Or 282 (2015) 283
LINDER, J.
Petitioner seeks review of the Attorney General’s
certified ballot title for Initiative Petition (IP) 40 (2016), con-
tending that the caption, the “yes” result statement, and the
summary do not comply with requirements set out in ORS
250.035(2). We review the certified ballot title to determine
whether it substantially complies with those requirements.
See ORS 250.085(5) (setting out that standard). For the rea-
sons explained below, we refer the ballot title to the Attorney
General for modification of the caption and the “yes” result
statement.
IP 40, attached as an Appendix to this opinion, is a
proposed statute that would make several changes to state
law relating to the use and speaking of the English lan-
guage. Section 1 first declares English to be the official lan-
guage of the State of Oregon and then requires that official
state actions be taken in the English language and provides
that, with exceptions, “[n]o law, ordinance, decree, program,
or policy of this State or any of its subdivisions” may require
the use of any language other than English for preparation
of documents, regulations, meetings, publications, and other
related actions. Section 1 further provides that, with excep-
tions, persons who speak only English must be eligible for
all programs, benefits, and opportunities of the state and its
subdivisions, including employment; and that English-only
speakers may not be penalized, or have their rights or oppor-
tunities impaired, solely because they speak only English.
Section 2 sets out exceptions to certain aspects of section 1,
detailing purposes for which the state and its “political sub-
divisions” may use a language other than English. Section
5 grants standing to any resident or person doing business
in Oregon to seek a declaratory judgment as to whether a
violation of the proposed statute has occurred and, if so, to
obtain injunctive relief, with costs and reasonable attorney
fees awarded to the prevailing party.
The Attorney General drafted a ballot title for IP 40,
ORS 250.065(3), and the Secretary of State circulated that
title for public comment, ORS 250.067(1). After receiving
comments, the Attorney General modified the draft ballot
284 Kendoll v. Rosenblum
title, ORS 250.067(2)(a), and certified the following ballot
title to the Secretary of State:
“Changes state/‘subdivision’ (undefined)
laws regarding English/other-language use and
requirements; exceptions; authorizes lawsuits
“Result of ‘Yes’ Vote:  ‘Yes’ vote changes/eliminates
state/‘subdivision’ (undefined) requirements regarding
using/requiring English or other languages, with specified
exceptions; authorizes lawsuits, attorney fees to prevailing
plaintiffs.
“Result of ‘No’ Vote:  ‘No’ vote retains existing require-
ments for officials, government/private entities regarding
using/requiring English, other languages. Employee profi-
ciency in other languages required in some circumstances.
“Summary:  Current state/local laws may permit or
require government agencies/private entities to provide
services, documents in English and sometimes other lan-
guages. Some federal laws require entities receiving federal
funds to provide services in languages other than English.
Measure requires actions that bind, commit, or ‘give the
appearance of presenting’ official state ‘views’/‘positions’
be communicated in English. Measure requires state,
‘subdivisions’ to provide services in English, regardless of
affected person’s English proficiency. Exceptions include
‘commonly used’ terms, protect criminal defendants’/
victims’ rights, teach English/other languages. (Effect of
section unclear). English-only speakers cannot be deprived
of state/‘subdivision’ ‘programs,’ ‘benefits,’ ‘opportuni-
ties,’ employment. (Quoted terms undefined). Authorizes
enforcement lawsuits by residents/persons doing business
in Oregon; costs, attorney fees for prevailing plaintiff.
Other provisions.”
Petitioner is an elector who timely submitted com-
ments about the Attorney General’s draft ballot title and
who now is dissatisfied with the certified ballot title, ORS
250.085(2). Her challenges are directed to aspects of the cap-
tion, the “yes” result statement, and the summary that the
Attorney General added after the comment period ended.
See ORS 250.085(6) (permitting Supreme Court to consider
such arguments).
Cite as 358 Or 282 (2015) 285
Petitioner raises several challenges to the caption,
contending that it fails to reasonably identify the subject
matter of IP 40 and that it is “written in a manner unin-
telligible to the average voter.” As to subject matter, she
specifically contends that the caption should state that
(1) IP 40 requires the state and other governmental enti-
ties to communicate and take action in only English (with
exceptions); and (2) under IP 40, those same entities may
not deny English-only speakers full participation in gov-
ernmental programs, benefits, and opportunities, including
employment (with exceptions). She also objects to the use
of quotation marks and the designation of the term “subdi-
vision” as undefined. As to readability, she asserts that the
phrase “English/other-language use” is indecipherable and
that the caption as a whole is unnecessarily difficult to read
and understand.
The Attorney General responds that the certified
ballot title accurately identifies the two major effects of IP  40:
(1) “chang[ing]” state and “ ‘subdivision’ ” laws relating to the
use of English language and other languages, with excep-
tions; and (2) authorizing lawsuits. As to the first purported
effect, the Attorney General cites current laws that either
require the use of English in certain circumstances, see ORS
1.150 (all writings in Oregon court proceedings must be in
English), or require non-English speech or writing in cer-
tain circumstances, see, e.g., ORS 45.275 (requiring appoint-
ment of court interpreters in certain circumstances); ORS
411.970 (requiring certain agencies to provide non-English
written materials in certain circumstances), all of which
might be affected or “change[d]” by IP 40. As to the second
purported effect, the Attorney General emphasizes the new
equitable right of action that IP 40 creates—which, in turn,
could result in significant cost to taxpayers—and argues
that the caption should describe that right.
Under ORS 250.035(2)(a), the caption is limited to
15 words and must “reasonably identif[y] the subject matter”
of IP 40—described in this court’s case law as its “actual
major effect” or, if more than one major effect, all effects
describable within the available word limit. Lavey v. Kroger,
350 Or 559, 563, 258 P3d 1194 (2011); see also Greenberg v.
286 Kendoll v. Rosenblum
Myers, 340 Or 65, 69, 127 P3d 1192 (2006) (Attorney General
may not select and identify in caption only one of multiple
subjects, such that caption understates scope of subject mat-
ter). To ascertain the subject matter of a measure, this court
typically considers the “changes that the proposed measure
would enact in the context of existing law.” Rasmussen v.
Kroger (S059261), 350 Or 281, 285, 253 P3d 1031 (2011);
see also Rasmussen v. Kroger, 351 Or 358, 361, 266 P3d 87
(2011) (when major effect would substantively change exist-
ing law, ballot title should inform voters of scope of change).
Because the caption is the “cornerstone” of the ballot title, it
must identify the subject matter of the proposed measure in
terms that will “inform potential petition signers and voters
of the sweep of the measure.” Terhune v. Myers, 342 Or 475,
479, 154 P3d 1284 (2007); see also Greene v. Kulongoski, 322
Or 169, 174-75, 903 P2d 366 (1995) (explaining that caption
may not obscure measure’s effect or make it difficult for vot-
ers to understand measure’s subject).
We begin with petitioner’s contentions about the
English-use provisions in IP 40, sections 1(2) and 1(3).
Both parties agree that those provisions are intended to,
and would, change state law in terms of the exclusive use
of the English language by the state and other governmen-
tal entities for official actions and communications. They
disagree, however, as to how the caption should describe
that actual major effect. We agree with petitioner that the
Attorney General’s current wording—“[c]hanges * * * laws
regarding English/other-language use”—does not suffi-
ciently describe the major effect of the potential impact of
sections 1(2) and 1(3) on current law. Of course, if passed,
IP 40 would “change” existing laws—some that pertain to
the use of the English language, and some that pertain to
the use of languages other than English. More specifically,
under section 1(2), all official state actions must be taken in
English and in no other language; and, under section 1(3),
the state and other governmental entities may not require
the use of languages in addition to English in governmental
communications, unless an exception applies. Collectively,
and in consideration of the word-count limit set out in ORS
250.035(1)(a), the effect of those changes would be to expand
governmental use of the English language exclusively or,
Cite as 358 Or 282 (2015) 287
conversely stated, to decrease governmental use of languages
in addition to English. Stating in a more neutral manner
that IP 40 would “change” current law does not sufficiently
alert voters about that major effect—that is, expanded
requirements for governmental use of the English language
(and a corresponding limitation on government’s ability to
require the use of languages other than English in certain
circumstances). See Dixon / Frohnmayer v. Rosenblum, 355
Or 364, 373, 327 P3d 1160 (2014) (caption that phrases sub-
ject matter in too-sweeping terms impermissibly fails to dis-
close subject matter in terms that provide notice of principal
substantive choices presented); Rasmussen v. Kroger, 351 Or
195, 198, 262 P3d 777 (2011) (caption must inform reader of
scope of change that proposed measure would make). The
Attorney General therefore must modify the caption to more
accurately characterize the nature of that change.
As noted, the Attorney General identified a sec-
ond major effect of IP 40—the authorization of lawsuits
in the form of declaratory judgment actions and injunc-
tive relief proceedings—in the caption of its certified bal-
lot title. Petitioner does not appear to challenge inclusion
of that aspect of IP 40. See generally Greenberg, 340 Or at
71-72, (proposed new regulatory enforcement scheme likely
to be significant to voting public; caption therefore deficient
for failing to identify scheme as part of measure’s subject
matter); Mabon v. Kulongoski, 324 Or 315, 319-20, 925 P2d
1234 (1996) (where subject matter of measure includes right
to bring legal action, use of “permits lawsuits” in caption
permissible).
Petitioner raises a different contention about the
caption, however, arguing that it should inform voters that
IP 40 would prohibit the state and other governmental enti-
ties from excluding English-only speakers from eligibility
“to participate in all programs, benefits, and opportuni-
ties” that those entities provide, “including employment.”
The Attorney General argues that that effect is secondary
to the more central purpose of expanding requirements for
governmental use of the English language. After reviewing
IP 40 as a whole, we disagree with the Attorney General’s
characterization.
288 Kendoll v. Rosenblum
Section 1 of IP 40 contains five operative provisions,
the first of which sets out an “Official English Declaration”
that provides a general basis for the provisions that follow.
The remaining four operative provisions can be grouped into
two categories. The first category, sections 1(2) and 1(3),
pertains to governmental use of the English language; col-
lectively, as just explained, those provisions would expand
requirements for governmental use of English exclusively
or—conversely stated—would decrease governmental use of
languages in addition to English. The second category, sec-
tions 1(4) and 1(5), pertains to governmental opportunities
for persons who speak only English. Specifically, section 1(4)
provides that, unless an exception from section 2 applies,
an English-only speaker “shall be eligible to participate in
all programs, benefits, and opportunities, including employ-
ment,” provided by the state or other governmental entities.
Section 1(5) then provides, without express reference to
the exceptions in section 2, that neither the state nor other
governmental entity “shall penalize or impair the rights,
obligations, or opportunities available to any person” solely
because the person speaks only English. And, notably, sec-
tion 5 provides an equitable right of action for any violation
of IP 40, including both the English-use provisions and the
English-only speaker provisions.
As to those English-only speaker provisions set out
in section 1, neither the parties nor amici provide specific
examples in terms of their actual operation or their impact
on current law, and we hesitate to speculate about potential
effects in that regard. But, for purposes of our “subject mat-
ter” inquiry here, ORS 250.035(2)(a), the text of IP 40 itself
is instructive: It expressly would enact into current law a
new, affirmative guarantee for English-only speakers, by
ensuring broad governmental eligibility and participation
opportunities, including employment of any kind, unless
an exception applies.1 That new, affirmative guarantee—
enforceable by declaratory judgment action—is a significant
component of the subject matter of IP 40 that the caption
1
Or, conversely stated, IP 40 would permit governmental entities to make
certain programs, benefits, or opportunities, including employment, available
based on the ability to speak a language other than English only if an identified
exception applied.
Cite as 358 Or 282 (2015) 289
should highlight for potential voters. See generally Greene
322 Or at 174-75, (caption must permit voters to understand
subject matter of proposed measure); Fred Meyer, Inc., v.
Roberts, 308 Or 169, 173-74, 777 P2d 406 (1989) (in selecting
caption wording to accurately describe subject matter of pro-
posed measure, court considered extent to which measure
continued or, by contrast, potentially altered state of current
law).
Petitioner next contends that the Attorney General’s
caption for IP 40 “is constructed in an incomprehensible
manner” and ultimately “convey[s] little of value to the aver-
age voter.” We agree that, as written, the caption is unnec-
essarily difficult to understand and, therefore, does not suf-
ficiently explain the subject matter of IP 40 to the voters.
See Mabon v. Kulongoski, 325 Or 121, 127, 934 P2d 403
(1997) (caption using “nearly incomprehensible wording” fell
short of satisfying ORS 250.035(2)(a)). Most notably, mul-
tiple slash marks and the complex phrase, “laws regarding
English/other-language use and requirements,” hamper
the reader’s ability to understand the caption. Within the
15-word limit, the Attorney General must convey the actual
major effects of the measure—the expansion of English-only
requirements, the assurance of eligibility and opportunities
for English-only speakers, and the authorization of equita-
ble actions—in a manner that is understandable to the aver-
age voter. See Crew/Garcia v. Myers, 336 Or 535, 541, 87
P3d 656, recons allowed on other grounds, 336 Or 635 (2004)
(suggesting that, if caption would cause average voter to be
misled or to confuse concepts, then caption would not satisfy
statutory requirements).2
Finally, the parties disagree about the meaning of
the term “subdivisions” in parts of section 1 of IP 40 and
whether that term carries the same meaning as “political
subdivisions” as used in sections 2 and 3. We need not resolve
that dispute, because the identification of which particular
2
The Attorney General argues that the phrase “English/other-language
use” should be retained because IP 40 would affect current state laws requiring
the use of English and laws requiring the use of languages other than English.
As discussed above, however, the actual major effect of IP 40 in that regard is to
expand English-use laws. That effect can be described without resort to a phrase
such as “English/other-language use.”
290 Kendoll v. Rosenblum
governmental entities—other than the state—would be sub-
ject to various aspects of IP 40 is not an actual major effect
of the proposed measure that must be stated in the caption.
Rather, the key is that IP 40 applies to governmental action,
even though its specific requirements may not apply directly
to every type of governmental entity. In modifying the cap-
tion within the 15-word limit consistently with our earlier
discussion, the Attorney General may consider the extent—
if any—to which the caption should continue to describe
which governmental entities are subject to the measure.3
Turning to the “yes” result statement, petitioner
argues that that statement incorporates the same flaws
as the caption, specifically arguing that it (1) should more
clearly state that IP 40 requires that governmental actions
and communications be taken and made in the English
language; (2) should identify the effect of “prohibit[ing] dis-
crimination against English-only speakers” in benefits and
employment; and (3) is not comprehensible. The Attorney
General likewise responds by repeating earlier arguments
relating to the caption.
Under ORS 250.035(2)(b), the “yes” result statement
must set out a “simple and understandable statement of not
more than 25 words that describes the result” if the mea-
sure is approved. For the same reasons set out above in our
discussion of the caption, we conclude that the “yes” result
statement does not substantially comply with that statu-
tory standard. The Attorney General must modify the “yes”
result statement to more clearly and accurately describe
two significant components of IP 40 not already captured in
that statement—that is, expansion of governmental exclu-
sive English-use requirements and ensured eligibility and
opportunities for English-only speakers. That modification,
in turn, should improve the readability of the “yes” result
statement for the average voter.4
3
By way of example, the Attorney General’s modified caption could say,
“Expands governmental English-use requirements; ensures eligibility/opportu-
nities for English-only speakers; exceptions; authorizes lawsuits.”
4
In ensuring that its modified “yes” result statement complies with the
25-word limit in ORS 250.035(2)(b), the Attorney General may wish to consider
eliminating the current reference to prevailing party fees under section 5 of
IP 40, which the Attorney General appropriately notes in the summary.
Cite as 358 Or 282 (2015) 291
Finally, petitioner challenges the summary of the
certified ballot title for IP 40, arguing that it should state
the “official language” policy declaration from section 1(1),
that it inaccurately portrays certain aspects of IP 40, and
that it otherwise suffers from poor grammatical construc-
tion. The Attorney General responds that its summary sets
out a “concise and impartial statement of not more than
125 words summarizing the state measure and its major
effect,” as required by ORS 250.035(2)(d). We agree with the
Attorney General. The summary draws its wording directly
from the key components of IP 40—including provisions
about the required use of the English language in official
governmental actions and services (with applicable excep-
tions), ensured eligibility and opportunities for English-only
speakers, and the authorization of lawsuits. Given that each
of those key provisions and major effects are accurately
summarized using the wording of the measure itself, we do
not think it necessary for the summary to separately state
that IP 40 declares English to be the official language of
the State of Oregon. In short, the summary substantially
complies with the requirements set out in ORS 250.035(2)
(d). See McCann/Harmon v. Rosenblum, 354 Or 771, 775,
323 P3d 264 (2014) (summary must give voters sufficient
information so as to adequately understand changes that
the measure would make).5
The ballot title is referred to the Attorney General
for modification.
5
As part of our consideration of the issues that the parties have raised,
we also considered arguments advanced by amici curiae Rogers, Santos-Lyons,
and Jama. Their arguments largely mirrored the Attorney General’s and are
addressed in our discussion above.
292 Kendoll v. Rosenblum
APPENDIX
Section 1.  Official English Declaration
1.  The English language is the official language of the
State of Oregon[.]
2.  Official actions of this State which bind or commit the
State or which give the appearance of presenting the
official views or position of the State shall be taken in
the English language.
3.  No law, ordinance, decree, program, or policy of this
State or any of its subdivisions, shall require the use
of any language other than English for any documents,
regulations, orders, transactions, proceedings, meet-
ings, programs, or publications, except as provided in
Section 2.
4.  A person who speaks only the English language shall
be eligible to participate in all programs, benefits and
opportunities, including employment, provided by this
State and its subdivisions, except when required to
speak another language as provided in Section 2.
5.  No law, ordinance, decree, program, or policy of this
State or any of its subdivisions shall penalize or impair
the rights, obligations or opportunities available to any
person solely because a person speaks only the English
language.
Section 2.  Exceptions
The State and its political subdivisions may use a language
other than English for any of the following purposes:
1.  To teach or encourage the learning of languages other
than English;
2.  To protect the public health or safety;
3.  To teach English to those who are not fluent in the
language;
4.  To comply with the Native American Languages Act,
the Individuals with Disabilities Education Act, or any
other federal law;
Cite as 358 Or 282 (2015) 293
5.  To protect the rights of criminal defendants and victims
of crime;
6.  To promote trade, commerce, and tourism;
7.  To create or promote state or agency mottos, inscribe
public monuments, and perform other acts involving the
customary use of a language other than English.
8.  To utilize terms of art or terms or phrases from other
languages which are commonly used in communications
otherwise in English.
Section 3.  Rules of Construction
Notwithstanding any other state law and except as provided
in section 2 of this chapter, nothing in this chapter shall
be construed to prohibit any elected official, officer, agent,
employee of the state or a political subdivision, while per-
forming official functions, from communicating unofficially
through any medium with another person in a language
other than English (as long as official functions are per-
formed in English).
Section 4.  Private Use Protected
The declaration and use of the English language as the
official language of the State of Oregon should not be con-
strued as infringing upon the rights of any person to use a
language other than English in private communications or
actions, including the right of government officials (includ-
ing elected officials) to communicate with others while not
performing official actions of the State.
Section 5.  Standing to Sue
Any person who is a resident of, or doing business in the
state of Oregon shall have standing to sue any agency or
official of the state of Oregon to seek a declaratory judge-
ment [sic] as to whether this Article has been violated and
injunctive relief there-from. A qualified person may file suit
even if the Attorney General or other appropriate official
of the State has not filed such a suit, and the suit may be
brought on behalf of all citizens of the State. A person who
prevails, in whole or in part, in such a suit, shall be entitled
294 Kendoll v. Rosenblum
to costs of bringing and maintaining the suit, including rea-
sonable attorney’s fees.
Section 6.  Severability
If any provision of this Article, or the applicability of any
provision to any person or circumstance, shall be held to be
invalid by a court of competent jurisdiction, the remainder
of this Article shall not be affected and shall be given effect
to the fullest extent practicable.
Section 7.  Federal Pre-emption
Nothing in this act shall be interpreted as conflicting with
the laws of the United States.