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)

En Banc

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.

Gregory A. Chaimov, Davis Wright Tremaine LLP, 

Portland, filed the memorandum for amici curiae ACLU 

Foundation of Oregon and David Rogers, Rev. Joseph SantosLyons, and Kayse Jama.

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 ballot 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), contending 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 reasons 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 language. Section 1 first declares English to be the official language 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 exceptions, 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 opportunities 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 subdivisions” 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 requirements for officials, government/private entities regarding 

using/requiring English, other languages. Employee proficiency 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 languages. 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,’ ‘opportunities,’ 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 comments 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 caption, 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 unintelligible 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 entities 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 governmental programs, benefits, and opportunities, including 

employment (with exceptions). She also objects to the use 

of quotation marks and the designation of the term “subdivision” 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 exceptions; 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 certain circumstances, see, e.g., ORS 45.275 (requiring appointment 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 matter). 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 existing 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

voters 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 governmental 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 sufficiently 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 subject matter in too-sweeping terms impermissibly fails to disclose 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 second major effect of IP 40—the authorization of lawsuits 

in the form of declaratory judgment actions and injunctive relief proceedings—in the caption of its certified ballot 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 entities from excluding English-only speakers from eligibility 

“to participate in all programs, benefits, and opportunities” 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; collectively, 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, sections 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 employment,” 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, section 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 matter” 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 proposed 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 average voter.” We agree that, as written, the caption is unnecessarily difficult to understand and, therefore, does not sufficiently 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, multiple 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 equitable actions—in a manner that is understandable to the average 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 subject 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 caption 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] discrimination 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 measure 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 statutory 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 exclusive 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/opportunities 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 construction. 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 exceptions), 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, meetings, 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 performing official functions, from communicating unofficially 

through any medium with another person in a language 

other than English (as long as official functions are performed 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 construed 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 (including 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 judgement [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 reasonable 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.