Filed: July 28, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

DANIEL P. LAVEY and ANNA

RICHTER TAYLOR,

Petitioners,

v.

JOHN R. KROGER, Attorney General,

State of Oregon,

Respondent.

(SC S059447)

En Banc

On petition to review ballot title filed May 17, 2011, considered and under

advisement June 22, 2011.

Gregory A. Chaimov of Davis Wright Tremaine, LLP, Portland, filed the petition

and reply memorandum for petitioners

.

Erin C. Lagesen, Assistant Attorney General, Salem, filed the answering

memorandum for respondent. With her on the answering memorandum were John R.

Kroger, Attorney General, and Mary H. Williams, Solicitor General.

LANDAU, J.

The ballot title is referred to the Attorney General for modification.1 LANDAU, J. 1

Petitioners seek review of the Attorney General's certified ballot title for 2

Initiative Petition 16 (2012), arguing that the ballot ti tle does not satisfy the requirements 3

of ORS 250.035(2). See ORS 250.085(2) (specifying requirements for seeking review of 4

certified ballot titles). We review a certified ballot title to determine whether it 5

substantially complies with those statutory re quirements. See ORS 250.085(5) (stating 6

standard of review). For the reasons that follow, we refer the ballot title to the Atto rney 7

General for modification. 8

Initiative Petition 16, a copy of which is attached as an appendix to this 9

opinion, would amen d several statutory provisions under ORS chapters 815 and 818, 10

regarding the use of studded tires on public roads. Currently, ORS 815.160 makes it a 11

Class C traffic violation for a person to drive a vehicle equipped with studded tires on any 12

Oregon highwa y. ORS 815.165 then lists 12 exemptions to that blanket prohibition

, 13

including exemption s for certain vehicles that serve a public function, like school buses, 14

ORS 815.165(8), and e mergency vehicles, ORS 815.165(9 ) . Another exemption, ORS 15

815.165(7)

, pro vides that, between November 1 and April 1, a person ma y drive a vehicle 16

equipped with studded tires. That subsection also gives the Oregon Department of 17

Transportation (ODOT) authority to shorten or lengthen the period of time for the 18

permissible use of studded tires for any area of the state, if doing so would help to 19

preserve the highway surfaces or enhance public safety. Yet another exemption , ORS 20

815.165(12 )

, provides that a person may operate a vehicle equipped with "retractable" 21

studded tires at an y time during the year. 222 In addition to those statutory exemptions, ORS 818.200 allows "a road 1

authority," including ODOT, to issue a "variance permit" to any person if doing so would 2

serve the public interest. Pursuant to th at permit, a person could e qu ip a vehicle with 3

studded tires of any k ind and at any time of the year without violating ORS 815.160. 4

Initiative Petition 16 would delete the two exemptions provided under ORS 5

815.165(7) and (12 ) . It would also amend ORS 818.200 so that no road authority would 6

be allowed to issue a variance permit for the use of studded tires. 7

The Attorney General certified the following ballot title for Initiative 8

Petition 16: 9

" Prohibits the use of studded tires, including retractable studded tires, 10

at all times of year 11

" Result of 'Yes' Vote: 'Yes' vote creates year

- round ban on 12

studded

- tire use, violations of which are punishable by fines; prohibits 13

issuance of permits allowing studded

- tire use. 14

" Result of 'No' Vote: 'No' vote retains motorists' option to use 15

studded tires November to April, other times if authorized by ODOT/other 16

road authority, or i f studs retractable. 17

" Summary: Current Oregon law prohibits use of studded tires with 18

specified exceptions; person committing unauthorized use of studded tires 19

subject to fines, other penalties. One exception to the prohibition on 20

studded

- tire use allows motorists to use studded tires from November until 21

April; ODOT has authority to shorten or lengthen the time period in which 22

studded

- tire use is p ermitted. Other exceptions allow use of retractable 23

studded tires year round, and authorize ODOT/other road authorities to 24

issue permits allowing studded

- tire use at other times. Proposed measure 25

eliminates these exceptions to studded

- tire ban, resulting in year

- round 26

prohibition on use of studded tires, includ ing retractable studded tires, and 27

eliminating authority of ODOT/other road authorities to authorize studded

28

tire use by permit. Other provisions." 29

(Boldface in original.) 303 Petitioners contend tha t the ballot title is deficient in a number of different 1

respects pertaining to the caption, the "yes" vote result statement, the "no" vote result 2

statement, and the summary. We reject most of petitioners' arguments without discussion 3

and write to address only one issue raised by petitioners that affects the caption and the 4

"yes" vote result statement

. 5

Petitioners argue that the caption for Initiative Petition 16 is defective 6

because it "fails to identify the subject matter of the initiative." That is so, they argue

, 7

because the caption states that Initiative Petition 16 "[p]rohibits the use of studded tires 8

* * * at all times of [the] year " when, in fact, such a ban already exists under ORS 9

815.160. Petitioners argue that the "major effect" o f Initiative Petition 16 is t he repeal of 10

ORS 815.165(7) because repeal of that exemption would mean that Oregonians would no 11

longer be allowed to use studded tires on public roads during winter months. Although 12

petitioners acknowledge that repeal of ORS 815.165(7) creates, in effect, a year

- round 13

ban on the use of studded tires for general, daily use by most citizens , petitioners argue 14

that the caption "obscures from voters the change the measure proposes." 15

A ballot title caption is a statement of not m ore than 15 words that 16

" reasonably identifies the subject matter " of the measure. ORS 250.035(2)(a)

. To 17

comply with that statutory standard, case law requires that the caption " state or describe 18

the pro posed measure's subject matter ' accurately

, and in t erms that will not confuse or 19

mislead potentia l petition signers and voters.'" Kain/Waller v. Myers , 337 Or 36, 40, 93 20

P3d 62 (2004) ( quoting Greene v. Kulongoski , 322 Or 169, 174

- 75, 903 P2d 366 (1995) ). 21

For purposes of this court's review, the "subject matter" of a ballot title is "the 'actual 224

major effect' of a measure or, if the measure has more than one major effect, all such 1

effects (to the limit of the available words). " Whitsett v. Kroger , 348 Or 243, 247, 230 2

P3d 545 (2010). "To identify the 'actual major effect' of a measure, this court examines 3

the text of the proposed measure to determine the changes that th e proposed measure 4

would enact in the context of existing law and then examines the caption to determine 5

whether the caption reasonably identifies those effects." Rasmussen v. Kroger , 350 O r 6

281, 285, 253 P3d 1031 (2011). 7

In this case, petitioners are correct that the caption does not adequately 8

identify the subject of the proposed initiative. The change proposed in Initiative Petition 9

16 would repeal only two of 12 exemptions of the alre ady

- existing , year

- round ban on the 10

use of studded tires. Thus, the caption

-- which asserts that the measure will create a 11

year

- round ban

-- is inaccurate and overly broad

. 12

T he caption is inaccurate in that it state s that the measure would create a 13

y ear

- round ban on the use of studded tires in all cases. Initiative Petition 16 , however, 14

has no effect on the other 10 exemptions to the studded tire ban, including the right to use 15

studded tires on any vehicle on a private road, ORS 815.165( 2 ), on vehicles engaged in 16

construction on highways in the state, ORS 815.165(4), on school buses, ORS 17

815.165(8), and on emergency vehicles, ORS 815.165(9), among others . A reasonable 18

person, after reading the current caption, may be misled to think that Initiative Petition 16 19

would prohibit the use of studded tires in all of the above situations, instead of just the 20

two uses for which the measure deletes exemptions

. See Brady /Berman v. Kro ger , 347 21

Or 518, 524, 225 P3d 36 (2009) (wording used in ballot title caption did not reflect the 225

"limited extent" to which the measure changed the current law). 1

T he caption is overly broad in that i t states that the measure will create a 2

year

- round ba n on the use of studded tires when that is simply not the case. Such a ban 3

already exists, and Initiative Petition 16 will have no e ffect on the other 10 exemptions to 4

that ban. Several of the remaining exemptions under ORS 815.165 involve the use of 5

veh icles to provide important government services. By failing to clarify for voters that 6

the ban is not absolute , " the caption's phraseology is so broad that it fails to disclose the 7

subject matter of the proposed measure in terms that give notice to the vot ers of the 8

principal substantive choice or choices that the measure presents. " Rogers v. Myers , 344 9

Or 219, 224, 179 P3d 627 (2008). Thus, the caption fails to substantially comply with th e 10

requirements of ORS 250.035(2)(a) and must be referred to the Attorney General for 11

modification. 12

Petitioners argue that the "yes" vote result statement suffers from the same 13

fatal defect as the caption; namely, the statement is misleading because it do es not 14

accurately state the change in the law that will occur if Initiative Petition 16 becomes law. 15

ORS 250.035(2)(b) provides that a result statement must be a " simple and understandable 16

statement of not more than 25 words that d escribes the result if t he state measure is 17

approved ." To substantially comply with that standard, an accurate description of the 18

change that will be caused by the measure is key. See Caruthers v. Myers , 344 Or 596, 19

600, 189 P3d 1 (2008) ("The purpose of [the] requirements [for ballot titles] is to ensure 20

that voters have accurate information about the subject and effect of a proposed 21

measure.")

. 226 As explained above, describing Initiative Petition 16 as creating a n absolute 1

year

- round ban on the use of studded tires is inaccurate

. Ten exemptions under ORS 2

815.165 will continue to exist and permit the use of studded tires on vehicles, such as 3

school buses and emergency vehicles, that are engaged in important gove rnment activity. 4

Therefore , we also refer the "yes" vote result statement to the Attorney General to modify 5

that statement in a way that clarifies that result. 6

The ballot title is referred to the Attorney General for modification. 77 APPENDIX 1

"Relating t o studded tires; creating new provisions; amending ORS 2

815.045, 815.165 and 818.200; and repealing ORS 815.167. 3

"Be It Enacted by the People of the State of Oregon: 4

" SECTION 1. ORS 815.165 is amended to read: 5

" 815.165. [ This section establishes exemptio ns from O RS 815.160. 6

The exemptions under this section are in addition to any under O RS 7

801.026. Exemptions are partial or complete as described in the following: ] 8

The following are exempt from the prohibitions of ORS 815.160: 9

"(1) Any vehicle on any way , thoroughfare or place owned by a 10

district formed under ORS chapters 545, 547, 551 or a corporation formed 11

under ORS chapter 554. 12

"(2) Any vehicle on any road or thoroughfare or property in private 13

ownership or any road or thoroughfare, other than a stat e highway or 14

county road, used pursuant to any agreement with any agency of the United 15

States or with a licensee of such agency or both. 16

"(3) Operations approved under a variance permit issued under ORS 17

818.200, [ are ] subject to the terms of the permit. It shall be a defense to any 18

charge of violation of ORS 815.160 if the person so charged produces a 19

variance permit issued under ORS 818.200 authorizing the operation issued 20

prior to and valid at the time of the offense. 21

"(4) Vehicles actually engaged at the time in construction or repair 22

of highways in this state. 23

"(5) Traction engines moved upon dirt or unimproved roads. 24

"(6) Vehicles equipped with chains as defined in ORS 815.045. 25

"[ (7) Between November 1 of any year and April 1 of the following 26

year

, vehicles equipped with any tire having on its periphery studs of metal 27

or other material projecting beyond the tread surface of the tire not less 28

than four

- hundredths (0.04) inch nor more than six

- hundredths (0.06) inch 29

and made of such material that the studs will wear, through use, at the 30

same rate as the tread surface of the tire. When the preservation of the 31

highway surface or the safety of the traveling public so indicates, the 32

Department of Transportation shall have the authority to shorten or 33

lengt hen the period for the permissible use of such tires in any area of the 348

state specifically designated by the department .] 1

"[ (8) ] (7) School buses with a loaded weight of 10,000 pounds or 2

more. 3

"[ (9) ] (8) Emergency vehicles and ambulances used in an emerg ency 4

situation. 5

" [ (10) ] (9) Motor vehicles used for regularly scheduled medical 6

transport services. 7

"[ (11) ] (10) The movement across or along a highway, by the 8

owner or lessee of any land adjoining [ any highway may move across or 9

along ] the highway, of a ny tractor or implement of husbandry for the 10

purpose of planting, cultivating, caring for or harvesting any crop, on 11

condition that the owner or lessee shall be liable to the State of Oregon for 12

the benefit of the State Highway Fund with respect to state h ighways, or to 13

the proper county for the benefit of the county road fund with respect to 14

county highways, for any damage or injury done to the highway by the 15

movement. 16

"[ (12) Vehicles equipped with retractable studded tires as defined by 17

O RS 815.045 .] 18

" S ECTION 2

. ORS 815.045 is amended to read: 19

"815.045. (1) The Oregon Transportation Commission shall adopt 20

rules necessary to carry out ORS 815.140. The rules adopted by the 21

commission: 22

"(a) Shall establish the various types of conditions under which 23

vehicle traction tires or chains must be used. 24

"(b) Shall define types of vehicle traction tires or chains that may be 25

used under various road conditions. The commi ss ion rules under this 26

paragraph shall comply with the following: 27

"(A) Traction tire shall be defined to include any tire that meets 28

traction standards established by the Department of Transportation. 29

"[ (B) Retractable studded tires or tires with studs that are permitted 30

under O RS 815.165 shall be allowed as traction tires under the rules. ] 31

" [ (C) ] (B) The department may require that traction tires [without 32

studs] bear identifying marks, defined by the department, that indicate that 339

the tire was manufactured specifically for adverse weather conditions. 1

" [ (D) ] (C) Chains shall be defined to include link chains, cable 2

chains or any other device that attaches to the wheel, vehicle or outside of 3

the tire and that augments the traction of the vehicle. 4

"[ (E) Retractable studded tires shall be defined to include tires with 5

embedded studs that proj ect beyond the tread surface only when a vehicle 6

operator extends the studs to augment the traction of the vehicle. ] 7

"(c) Shall establish signs to be posted under conditions that require 8

vehicle traction tires or chains. 9

"(d) May establish types or class es of vehicles that are exempt from 10

requirements to use vehicle traction tires or chains under certain conditions 11

if the commission determines that the operation of the class or type of 12

vehicle would be safe under those conditions. 13

"(2) A road authority s hall: 14

"(a) Determine when conditions on a segment of highway require the 15

use of vehicle traction tires or chains as defined by the commission; 16

"(b) Determine which segments of a highway shall be posted as 17

described under this section to require vehicle t raction tires or chains; and 18

"(c) Provide for the placement and removal of signs requiring the 19

use of vehicle traction tires or chains. 20

" SECTION 3. ORS 818.200, as amended by section 11, chapter 30, 21

Oregon Laws 2010, is amended to read: 22

" 818.200. (1) A road authority, or private contractor authorized by a 23

road authority to do so, may issue a variance permit if it determines the 24

public interests will be served. A variance permit issued under this section 25

may allow any vehicle, combination of vehicles, loa d article, property, 26

machine or thing to move over any highway or street under the jurisdiction 27

of the road autho r ity without violation of any of the following: 28

" (a) Maximum weight limits under ORS 818.020. 29

" (b) Posted weight limits under ORS 818.040. 30

" (c) Administratively imposed weight or size limits under ORS 31

818.060. 3210 " (d) Maximum size limits under ORS 818.090. 1

" (e) Maximum number of vehicles in combination under ORS 2

818.110. 3

" (f) Posted limits on the use of road under ORS 818.130. 4

" (g) Towing saf ety requirements under ORS 818.160. 5

" (h) Use of devices without wheels under ORS 815.155. 6

" (i) Use of metal objects on tires under ORS 815.160

, except that a 7

variance permit issued under this paragraph may not allow the use of 8

tires with studs. 9

" (j) Ope ration without pneumatic tires under ORS 815.170. 10

" (k) Misuse of a spe c ial left turn lane under ORS 811.346

. 11

" (l ) Improper use of the center lane on three

- lane road under ORS 12

811.380

. 13

" (m) Operation of a motor vehicle on a bicycle trail under ORS 14

811.43 5. 15

" (n) Failure to drive within a lane under ORS 811.370. 16

" (2) The fee for issuance of a variance permit under this section is 17

the fee established under ORS 818.270. No fee shall be charged for 18

issuance of a permit to the federal government, agencies of the State of 19

Oregon, cities or counties. 20

" (3) A permit issued under this section is subject to all the provisions 21

under ORS 818.220 and to any limits under ORS 818.210. 22

" (4) Prohibitions and penalties relating to the use of the permit are 23

provided under ORS 818.340 and 818.350. 24

" (5) Violation of the conditions of the permit is subject to civil 25

penalties as provided under ORS 818.410. 26

" SECTION 4. ORS 815.167 is repealed. 27

" SECTION 5. The amendments to ORS 815.045, 815.165 and 28

818.200 by s ections 1, 2 and 3 of this 2012 Act and the repeal of ORS 29

815.167 by section 4 of this 201 2 Act become operative on May 1, 2013. 3011

" Note: Matter in boldfaced type in an amended section is new; matter 1

[ italic and bracketed ] is existing law to be omitted. New sections are in 2

boldfaced type. " 3