No. 39 September 12, 2013 125

IN THE SUPREME COURT OF THE

STATE OF OREGON

Arthur TOWERS,

Gail Rasmussen,

and Bethanne Darby,

Petitioners,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S061292)

En Banc

On petitions to review ballot title filed May 7, 2013; considered and under advisement August 6, 2013.

Steven C. Berman of Stoll Stoll Berne Lokting & Shlacher, 

P.C., Portland, filed the petition and response for petitioner 

Towers.

Margaret S. Olney of Bennett, Hartman, Morris & 

Kaplan LLP, Portland, filed the petition and response for 

petitioners Rasmussen and Darby.

Douglas F. Zier, Assistant Attorney General, Salem, filed 

the answering memorandum for respondent. With him on the

answering memorandum were Ellen F. Rosenblum, Attorney 

General, and Anna M. Joyce, Solicitor General.

Jill Gibson Odell, Beaverton, filed the amicus curiae

memorandum for herself.

Paul Gamson, Portland, filed the memorandum for amici

curiae Tom Chamberlain and Patrick Green.

LANDAU, J.

The ballot title is referred to the Attorney General for 

modification.

Petitioners challenged the proposed ballot title for Initiative Petition 9 (2014), 

which would amend several provisions of the Oregon Public Employee Collective 
126 Towers v. Rosenblum

Bargaining Act. Held: The proposed ballot title does not identify the free-rider 

effect of the measure and must be modified.

The ballot title is referred to the Attorney General for modification.
Cite as 354 Or 125 (2013) 127

LANDAU, J.

Petitioners seek review of the Attorney General’s 

certified ballot title for Initiative Petition 9 (2014), arguing 

that the ballot title does not satisfy the requirements of ORS 

250.035(2). We review a certified ballot title to determine 

whether it substantially complies with those statutory requirements. See ORS 250.085(5) (stating standard of review). For the

reasons that follow, we refer the ballot title to the Attorney 

General for modification.

Initiative Petition 9, if adopted by the voters, would 

amend several provisions of the Oregon Public Employee Collective Bargaining Act (PECBA). PECBA currently allows 

public employers and unions to enter into “fair-share” union 

security agreements. ORS 243.666(1); ORS 243.672(1)(c).

Under those agreements, public employees choosing not to join 

a union are nevertheless responsible for a proportional share 

of the representation costs incurred by the union, collected 

as “payment-in-lieu-of-dues” sums. ORS 243.650(10); Dale v. 

Kulongoski, 321 Or 108, 111-12, 894 P2d 462 (1995).

Initiative Petition 9 declares that “[a] person shall 

have the individual freedom of choice in the pursuit of public 

employment” and that no one may be required either to join

or not join a labor organization as a condition of public 

employment. It further provides that, “[i]f an employee does 

not choose to join and participate in a labor organization, 

such employee shall not pay an amount of money in-lieu-ofdues to a labor organization, another organization, or third 

party as a condition of employment.” That type of legislation 

is often referred to by its popular political slogan, “right to 

work.”

The Attorney General certified the following ballot 

title for Initiative Petition 9:

“BALLOT TITLE: Prohibits compulsory payment

of union representation costs by public employees 

choosing not to join union

“Result of ‘Yes’ Vote: ‘Yes’ vote prohibits requiring 

represented public employees who choose not to join union 

to make compulsory ‘payment in lieu of dues’ for union representation costs.
128 Towers v. Rosenblum

“Result of ‘No’ Vote: ‘No’ vote allows requiring represented public employees who choose not to join union to

make compulsory ‘payment in lieu of dues’ for union representation costs.

“Summary: Current law allows public employees to 

bargain collectively through a labor organization/union as 

their exclusive representative; prohibits requiring union 

membership as condition of public employment; requires 

union to fairly represent members and nonmembers in bargaining unit; allows contracts requiring public employees 

who choose not to join union to make compulsory ‘payment 

in lieu of dues’ for cost of union representation. Measure 

affirms public employees’ right to join or decline to join 

union; prohibits requiring public employees choosing not 

to join union to make compulsory ‘payment in lieu of dues’ 

for union representation costs; makes entry into such compulsory payment agreements an unfair labor practice. 

Measure applies only to new, renewed, or extended contracts 

entered into after the effective date of the measure. Other 

provisions.”

Petitioners challenge the caption, result statements, 

and summary of the certified ballot title. We reject, without 

discussion, all of those challenges save one, which is that 

the caption, result statements, and summary all fail to identify properly the subject matter and effect of the initiative. 

According to petitioners, all three components of the ballot 

title fail to explain that the major effect of the measure is

“to allow employees to refuse to share in the costs of representation that the union is legally obligated to provide.” In 

petitioners’ view, the effect of the measure is thus to permit 

“free riders” to obtain the benefits of the representation that 

the union must provide without having to pay for them. 

Petitioners argue that, in several prior cases, this court has 

concluded that the law required that ballot titles for similar 

measures include information about the free-rider effect of 

adopting those measures.

The Attorney General answers that the ballot title 

substantially complies with statutory requirements. She 

argues that the law requires that the ballot title identify the 

“subject matter” of the proposed measure and the subject matter of Initiative Petition 9 “is a proposed prohibition on requiring ‘payments in lieu of dues’ ** * [from] public employees who
Cite as 354 Or 125 (2013) 129

choose not to join a union.” The Attorney General does not 

appear to address petitioners’ argument that this case is 

controlled by prior decisions of this court concerning similar 

measures, which decisions required the ballot titles to include

an explanation of the free-rider effect of adopting those 

measures.

We begin with the requirements for the caption. 

ORS 250.035(2)(a) requires that a ballot title for a proposed 

state measure contain a caption of not more than 15 words 

that reasonably identifies the “subject matter” of the 

proposed measure. The caption is the “headline” of the ballot 

title; it “provides the context for the reader’s consideration of 

the other information in the ballot title” and must describe 

the proposed measure’s subject matter accurately. Greene v. 

Kulongoski, 322 Or 169, 175, 903 P2d 366 (1995). For the 

purposes of this court’s review, the “subject matter” of a 

ballot title is “the ‘actual major effect’ of a measure or, if the 

measure has more than one major effect, all such effects (to 

the limit of the available words).” Whitsett v. Kroger, 348 Or 

243, 247, 230 P3d 545 (2010).

As petitioners correctly observe, this is not the 

first case in which this court has been asked to address the

sufficiency of a ballot title pertaining to a right-to-work 

initiative. In Novick/Bosak v. Myers, 333 Or 18, 36 P3d 464 

(2001), the court considered the proposed ballot title for a 

proposed constitutional amendment that declared that all 

employees have a “right to bargain directly as individuals 

with their employers” and that no one may “be required to

accept or pay for representation or any other service” by labor

organizations unless the employee requests the representation or service in writing. Id. at 21.

The Attorney General’s certified caption read: 

“AMENDS CONSTITUTION: DECLARES RIGHT OF 

INDIVIDUAL EMPLOYEES TO ‘BARGAIN’ WITH

EMPLOYERS; REQUIRES WRITTEN ACCEPTANCE OF 

UNION REPRESENTATION.” Id. at 22. The petitioners challenged the sufficiency of the caption, arguing that, among 

other things, it failed to explain the free-rider effect of the 

measure. Id. at 23. This court agreed, explaining,
130 Towers v. Rosenblum

“Under current law, unions and employers may negotiate 

union security agreements that, in one form or another, 

require bargaining unit employees who are not union members to pay for the cost of union representation. In practical 

terms, a prohibition on such agreements enables those 

employees to receive union representation without cost and 

represents a significant change in Oregon law. We agree 

with petitioners that that prohibition is one of the * ** ‘subject matters’ that the proposed measure addresses and that 

the Attorney General’s caption fails to identify that subject 

matter.”

Id. at 26 (citations omitted).

The court addressed the same issue in Sizemore/

Terhune v. Myers, 342 Or 578, 157 P3d 188 (2007). In that

case, the court addressed the sufficiency of a ballot title for

a proposed measure that would have created a new statute declaring that no person may be required to “become or

remain a member of a labor organization” or “pay any dues,

fees, assessments or other similar charges, however denominated, of any kind or amount[,] to a labor organization.” The 

Attorney General’s ballot title caption stated: “PROHIBITS 

NEGOTIATED CONTRACTS REQUIRING: PRIVATE

EMPLOYEES TO JOIN UNION, REPRESENTED NONMEMBERS TO SHARE REPRESENTATION COSTS.” Id.

at 582. The petitioners argued that the caption was deficient 

because, among other things, it failed to explain the freerider effect of the measure. Id. at 588. This court agreed:

“In context, the subject matter of the proposed measure 

consists of two identifiable legal changes. The proposed 

measure will eliminate any employment condition requiring 

any person to pay money to a union, and, thereby, it will 

entitle employees to receive the union’s legally mandated 

representation services without sharing in the cost of those 

services. The certified caption refers to only one of those 

subjects. * * * The Attorney General must address that 

deficiency on referral.”

Id. at 588-89 (emphasis in original).

This case is controlled by our prior decisions in 

Novick/Bosak and Sizemore/Terhune. As in both of those 

cases, the measure at issue in this one would, if adopted, 

declare a right not to be required to join a labor organization 
Cite as 354 Or 125 (2013) 131

as a condition of employment and a right not to pay dues, 

fees, or other charges to such labor organizations. As in both 

of those cases, an “actual major effect” is that employees 

who choose not to be represented will be able to receive 

services from a labor organization without having to pay for 

them. And, as in both of those cases, the Attorney General’s 

certified ballot title caption is deficient for failing to identify 

that actual major effect.

As we have noted, petitioners argue that the certified

ballot title result statements and summary are deficient for 

the same reason. Petitioners are correct. ORS 250.035(2)(b) 

and (c) set out the requirements for result statements. They 

require that a ballot title contain simple and understandable 

statements, not to exceed 25 words, describing the result

of approval or rejection of the proposed measure. ORS 

250.035(2)(d) requires that a ballot title for a proposed state

measure contain a concise and impartial summary of not

more than 125 words that summarizes the proposed measure 

and its major effects.

In Dale, this court considered the Attorney General’s

certified ballot title for a proposed constitutional amendment 

that would have provided that “no public employee ** * shall

be required or unduly pressured to join or otherwise be connected to, or pay dues, or contribute fair share, or pay fees

or assessments to a public employee union.” 321 Or at 116.

The Attorney General prepared a ballot title that included

a summary stating that the measure “[b]ans requiring 

employees to join union or to pay dues or representation costs.”

Id. at 110. The petitioners argued that the summary was inadequate because it failed to identify the free-rider effect of the 

measure, and this court agreed, holding that the summary 

did “not disclose that employees who are not members of the 

union, but who are members of the bargaining unit, will 

receive representation without cost.” Id. at 114.

Again, this court’s prior case law is controlling. The 

Attorney General must address the foregoing deficiencies on 

referral.

The ballot title is referred to the Attorney General 

for modification.