No. 59 November 9, 2017 143

IN THE SUPREME COURT OF THE

STATE OF OREGON

Matt SWANSON,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S065181)

En Banc

On petition to review ballot title filed August 8, 2017; considered and under advisement on September 26, 2017.

Harry B. Wilson, Markowitz Herbold PC, Portland, filed 

the petition for review and the replying memorandum on 

behalf of petitioner.

Jacob Brown, Assistant Attorney General, Salem, filed 

the answering memorandum for respondent. Also on the 

memorandum were Ellen F. Rosenblum, Attorney General, 

and Benjamin Gutman, Solicitor General.

WALTERS, J.

The ballot title is referred to the Attorney General for 

modification.

Case Summary: Petitioner sought review of Attorney General’s certified ballot title for Initiative Petition 19, which, if adopted, would limit state legislators 

to serving no more than eight years in any twelve-year period. Held: The ballot 

title’s caption did not substantially comply with ORS 250.035(2)(a) because it 

failed to inform voters of the measure’s retroactive application, which is a major 

effect of the proposed measure.

The ballot title is referred to the Attorney General for modification.
144 Swanson v. Rosenblum

WALTERS, J.

Petitioner seeks review of the Attorney General’s 

certified ballot title for Initiative Petition 19 (2018) (IP 19), 

arguing that the ballot title caption does not satisfy the 

requirements of ORS 250.035(2)(a). 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.

If adopted by voters, IP 19 would prohibit a person 

from serving as a member of the Legislative Assembly for 

more than eight years in any period of 12 years. Subject to 

certain exceptions,1

 IP 19 specifically provides that the state 

measure would apply “retroactively to limit service by any 

person who is a Representative or Senator upon the effective date of this Act, so that current or prior membership is 

included in the calculation of years of service.”

The Attorney General certified the following ballot 

title caption for IP 19:

“Limits service by state legislators: No more than 

eight years in any twelve-year period.”

Petitioner contends that that caption does not comply with ORS 250.035(2)(a), which provides that a ballot 

title’s caption be no “more than 15 words that reasonably 

identif[y] the subject matter of the state measure.” The “subject matter” of a measure is the “actual major effect” of the 

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).

1 IP 19 identifies the following exceptions:

“a.) A Representative or Senator elected in the November 2018 election 

may serve out that full term, even if service in such position exceeds the time 

limitations of this Act.

“b.) A person who, at the time of passage of this Act, holds an office of 

Senator that continues until January 2021 may continue to serve in such 

position even if service in such position exceeds the time limitations of this 

Act.”
Cite as 362 Or 143 (2017) 145

Although petitioner acknowledges that the caption 

informs voters of one major effect of IP 19—its prohibition on 

years of service—petitioner contends that it fails to inform 

voters of another major effect—that the measure applies 

retroactively, with exceptions. In petitioner’s view, the measure’s retroactive application is an actual major effect of the 

measure for two reasons. First, petitioner submits, the proposed measure will begin to change the composition of the 

legislature in just two years, not in eight years, as voters 

reasonably might presume. Petitioner explains that, without notice to the contrary, voters reasonably could expect 

that legislators would not be subject to the measure’s limitations on legislative service until they had served for eight 

years from the effective date of the measure; or, in other 

words, voters reasonably might believe that past legislative 

service would not be considered in applying the measure’s 

prohibition. Second, petitioner contends, the measure’s retroactive application is a major effect that must be signaled 

because, if the measure is enacted, it will prohibit many current legislators from completing their terms.

Addressing petitioner’s first argument, the Attorney 

General submits that the caption does not include “temporal qualifications” and therefore adequately informs voters 

that its length-of-service limitation applies to all legislative 

service, including past and current service.2

 The Attorney 

General accepts that the caption could be more explicit; 

however, she argues, further detail is not required to “reasonably identif[y]” the measure’s major effect. Voters are 

apprised of those details in the “Yes” vote statement and 

the summary portions of the ballot title, and, the Attorney 

General contends that that is sufficient.

Addressing petitioner’s second argument, the Attorney

General takes issue with petitioner’s interpretation of the 

measure as prohibiting many current legislators from completing their terms. The Attorney General urges us not 

to rely on that “speculative” interpretation as a basis for 

requiring modification of the caption.

2 The Attorney General notes that petitioner did not make his first argument when commenting on the Attorney Generals’ draft ballot title. However, the 

Attorney General does not contend that that failure forecloses our consideration 

of petitioner’s argument and, instead, addresses its merits.
146 Swanson v. Rosenblum

For the following reasons, we agree with petitioner’s 

first argument and refer the ballot title to the Attorney 

General for modification. As a result, we need not, and do 

not, address petitioner’s second argument.

As noted, ORS 250.035(2)(a) requires a ballot title’s 

caption to reasonably identify the “subject matter” of the proposed measure. “To determine the subject matter of a proposed measure, we first examine its words and the changes, 

if any, that the proposed measure would enact in the context of existing law.” Kain/Waller v. Myers, 337 Or 36, 41, 93 

P3d 62 (2004). “We then examine the words of the caption 

to determine whether they reasonably identify the proposed 

measure’s subject matter”—i.e., its major effect, or, if more 

than one, all such effects (to the limit of the available words). 

Id.; see Whitsett, 348 Or at 247 (defining “subject matter”).

Currently, there is no term-limit restriction on a 

state legislator’s service. If adopted, IP 19 would limit service by state legislators and would prohibit them from serving more than eight years in any period of 12 years. The 

certified ballot title caption informs voters of that change 

in the law. However, although the measure specifically provides that “current or prior membership is included in the 

calculation of years of service,” the certified caption does not 

convey that information. We agree with petitioner that that 

aspect of the measure is one of its major effects. If current 

or prior membership were not used in determining a legislator’s years of service, then the measure would not begin to 

affect the composition of the state legislature for eight years. 

Because current and prior membership is included in that 

determination, the measure’s effect would be more immediate. Thus, the actual impact of the measure on the legislature’s composition is a major effect that must be described in 

the ballot title’s caption.

The Attorney General does not disagree but contends that the certified caption suffices to “reasonably identif[y]” that major effect. The Attorney General argues that 

the lack of temporal limitation in the caption is sufficiently 

informative and, citing Conroy v. Rosenblum, 358 Or 807, 

816, 371 P3d 1180 (2016), that, although the caption could be 

more specific, the detail that petitioner seeks is unnecessary 
Cite as 362 Or 143 (2017) 147

and appears in the “Yes” vote result statement and summary. The Attorney General is incorrect in that analysis.

The caption is the cornerstone of the ballot title and 

must describe “the proposed measure’s subject matter ‘accurately and in terms that will not confuse or mislead potential petition signers and voters.’” Kain/Waller, 337 Or at 40 

(quoting Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d 

366 (1995)). Although, as we indicated in Conroy, there may 

be instances in which a measure is complex and its details 

are appropriately left to other parts of the ballot title, those 

instances are ones in which the caption accurately identifies 

the major effects of a measure in terms that will not confuse 

voters. 358 Or at 816. Here, the certified ballot title does 

not meet that standard. Without further information, voters 

reasonably could think that the measure is prospective only; 

that is, only legislative service after the effective date of the 

measure will affect a legislator’s continued service. To make 

the ballot title caption for IP 19 sufficiently informative and 

clear, the Attorney General must describe its retroactive 

effect. See Kain v. Myers (S49089), 333 Or 446, 449, 41 P3d 

416 (2002) (even though caption did not include temporal 

limitation, Attorney General conceded and court concluded 

modification required when caption failed to state that proposed measure, if adopted, would apply retroactively).

The ballot title is referred to the Attorney General 

for modification.