CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

Required Ballot Notice for a Levy Initiative 

Horton v. Multnomah County 

(Ancer L. Haggerty, D. Or. 3:03-cv-1257) 

The district judge enjoined application of a statute requiring a possibly misleading notice on ballot initiatives for new levies stating 

that property taxes could increase by more than three percent if the 

initiative passed, leaving unstated that an increase that high would 

only arise from the maximum increase in assessments permitted by 

law. The court of appeals vacated the injunction pending appeal 

and reversed the injunction two years later. 

Subject: Ballot measures. Topics: Ballot language; ballot 

measure; matters for state courts; interlocutory appeal; 

intervention; attorney fees. 

The U.S. Court of Appeals for the Ninth Circuit determined that a required 

ballot notice for a levy initiative that might appear misleading in isolation 

was not misleading in the context of the state’s property-assessment regulations. 

Supporters of a special-levy ballot initiative in Multnomah County filed a 

federal complaint in the District of Oregon on September 12, 2003, claiming 

that a ballot statement certified on September 4 was inaccurate.1 The complaint also challenged the constitutionality of the statute requiring the ballot 

statement.2 Judge Ancer L. Haggerty set the case for hearing on September 18 

and invited Oregon’s attorney general to intervene because of the challenge 

to the constitutionality of a statute.3 Judge Haggerty also granted a party’s 

intervention in support of the statute.4

The ballot statement was required by Oregon law: 

(a) Except as provided in paragraph (b) of this subsection, the ballot title for a measure authorizing the imposition of local option taxes shall contain the following additional statement: 

This measure may cause property taxes to increase more than 

three percent. 

(b) The ballot title for a measure authorizing the renewal of current local option taxes shall contain the following additional statement: 

This measure renews current local option taxes.5

1. Complaint, Horton v. Multnomah County, No. 3:03-cv-1257 (D. Or. Sept. 12, 2003), 

D.E. 1. 

2. Id. 

3. Order, id. (Sept. 18, 2003), D.E. 14 [hereinafter Sept. 18, 2003, Horton Order]; see

Docket Sheet, id. (Sept. 12, 2003) [hereinafter D. Or. Horton Docket Sheet] (granting Oregon’s motion to intervene, D.E. 30); Intervention Motion, id. (Sept. 26, 2003), D.E. 23. 

4. Sept. 18, 2003, Horton Order, supra note 3; see D. Or. Horton Docket Sheet, supra note 

3 (motion to intervene, D.E. 11). 

5. O.R.S. § 280.070(4). 
Required Ballot Notice for a Levy Initiative 

2 Federal Judicial Center 10/6/2023 

On September 19, Judge Haggerty concluded, “Plaintiffs correctly contend that the three percent warning is grossly inaccurate.”6

 A one-year special levy of $0.003 per $1,000 assessed value is much less than a three percent 

increase in taxes, which averaged $21 per $1,000 assessed value.7

Judge Haggerty determined, however, that the federal court was without 

jurisdiction to hear the challenge to the ballot language, because the ballot 

language was certified by a state judge; among federal courts, only the Supreme Court has jurisdiction to review state-court decisions.8

 Judge Haggerty 

could, however, review the constitutionality of the statute relied on by the 

state-court judge.9

Following the September 19 decision, the plaintiffs presented Judge 

Haggerty with a transcript of the state judge’s proceeding, which contradicted defense counsel’s representation that the state judge had considered the 

constitutionality of the statute.10 Judge Haggerty concluded on October 3 

that he had jurisdiction over the application of the statute to the ballot language after all.11

At an October 15 hearing, the defendants informed Judge Haggerty that 

the ballots need not be mailed out until October 21.12 On the morning of an 

October 17 hearing, however, “defendants mailed 345,000 ballots to 

Multnomah County voters. This number constitutes over ninety-nine percent of the ballots for the election.”13 On October 17, Judge Haggerty issued 

an injunction against Oregon’s mandatory three-percent statement on all 

initiatives for a local option tax and ordered the defendants to publish widely 

corrections to the incorrect ballot statement.14 The court of appeals, however, 

stayed the injunction pending appeal.15 On December 15, 2003, the court of 

appeals dismissed the appeals as moot and vacated the injunction as it ap6. Opinion at 4, Horton, No. 3:03-cv-1257 (D. Or. Sept. 19, 2003), D.E. 17 [hereinafter 

Sept. 19, 2003, Horton Opinion]. 

7. Id. at 3–4. 

“Conceivably, defendants argue, Multnomah County could raise the assessed valuation 

of homes by exactly three percent, as permitted by the Oregon Constitution, and the small 

tax increase authorized by Measure 26-52 would then ‘raise property taxes more than three 

percent.’ This interpretation of the three percent warning is rejected.” Opinion at 7, id. (Oct. 

17, 2003), D.E. 45 [hereinafter Horton Injunction Opinion]. 

8. Sept. 19, 2003, Horton Opinion, supra note 6, at 6–8; see D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). 

9. Sept. 19, 2003, Horton Opinion, supra note 6, at 8–10. 

10. Opinion, Horton, No. 3:03-cv-1257 (D. Or. Oct. 3, 2003), D.E. 31. 

11. Id. 

12. Horton Injunction Opinion, supra note 7, at 13. 

13. Id. 

14. Id. at 14–15; see Dave Hogan & Harry Esteve, Ballot Tax Warning Is Ruled Misleading, Oregonian, Oct. 18, 2003, at A1. 

15. Docket Sheet, Horton v. Multnomah County, No. 03-35841 (9th Cir. Oct. 21, 2003) 

(D.E. 7) (state’s appeal); Docket Sheet, Horton v. Multnomah County, No. 03-35837 (9th 

Cir. Oct. 20, 2003) (D.E. 4) (intervenor’s appeal); Docket Sheet, Horton v. Multnomah 

County, No. 03-35836 (9th Cir. Oct. 20, 2003) (D.E. 10) (county’s appeal); see Dave Hogan, 

Appeals Court Blocks PUD Ads, Oregonian, Oct. 22, 2003, at B1. 
Required Ballot Notice for a Levy Initiative 

Federal Judicial Center 10/6/2023 3

plied to the 2003 election, but left in effect the injunction as it applied to future elections.16

Judge Haggerty applied his reasoning in the Multnomah County case to a 

January 14, 2004, ruling in pending litigation over a Yamhill County initiative scheduled for a March 9 election.17 On May 27, Judge Haggerty awarded 

the Yamhill County plaintiffs $14,000 in attorney fees and costs;18 on December 6, he awarded the Multnomah County plaintiffs $30,475 in attorney 

fees and costs.19

Reviewing the Yamhill County case, the court of appeals determined on 

September 6, 2005, that the Oregon statute was constitutional.20 The court of 

appeals evaluated the statute in the context of an underlying three-percent 

limit on annual assessments so that voter-approved levies, no matter how 

small, could increase taxes by more than three percent if assessments were 

increased at the maximum allowed rate.21 The court of appeals determined 

that the First Amendment burden imposed by the statute was justified by the 

state’s interest in informing voters, observing that strict scrutiny is not generally applied to election laws’ First Amendment intrusions.22

Judge Haggerty vacated his injunction and awards of attorney fees.23

16. Order, Horton, Nos. 03-35836, 05-35837, and 03-35841 (9th Cir. Dec. 15, 2003), D.E. 

34, 32, 33, filed as Order, Horton, No. 3:03-cv-1257 (D. Or. Jan. 13, 2004), D.E. 72. 

17. Opinion, Caruso v. Yamhill County, No. 3:03-cv-1731 (D. Or. Jan. 14, 2004), D.E. 15, 

2004 WL 2005626; see Docket Sheet, id. (Dec. 12, 2003). 

18. Order, id. (May 27, 2004), D.E. 33. 

19. Opinion, Horton, No. 3:03-cv-1257 (D. Or. Dec. 6, 2004), D.E. 102; Judgment, id.

(Dec. 17, 2004), D.E. 103 (dismissing the case). 

20. Caruso v. Yamhill County, 422 F.3d 848 (9th Cir. 2005), cert. denied, 547 U.S. 1071 

(2006); see Horton v. Multnomah County, 197 F. App’x 635 (9th Cir. 2006) (applying the 

Yamhill County decision to the Multnomah County case). 

21. See Caruso, 422 F.3d at 854. 

22. Id. at 855–62. 

23. Order, Caruso, No. 3:03-cv-1731 (D. Or. Oct. 16, 2006), D.E. 43; Order, Horton, No. 

3:03-cv-1257 (D. Or. Oct. 13, 2006), D.E. 113.