OFFICE OF THE SECRETARY OF STATE

BEV CLARNO SECRETARY OF STATE

A. RICHARD VIAL DEPUTY SECRETARY OF STATE

ELECTIONS DIVISION

STEPHEN N. TROUT

DIRECTOR

255 CAPITOL STREET NE, SUITE 501 SALEM, OREGON 97310-0722

(503) 986-1518

I N I T I A T I V E P E T I T I O N

The Elections Division received a certified ballot title from the Attorney General on September 10, 2020, for Initiative Petition 2022-003, proposed for the November 8, 2022, General Election.

Caption Changes membership of Environmental Quality Commission; four of five required from industries; cannot be removed

Chief Petitioners

Mike Nearman 2570 Greenwood Road S Independence, OR 97351 Elaine Woods 759 SW 175th Place, Beaverton, OR 97006 Tasha Webb 23480 Hall Road, Cheshire, OR 97419

Appeal Period Any registered voter, who submitted timely written comments on the draft ballot title and is dissatisfied with the certified ballot title issued by the Attorney General, may petition the Oregon Supreme Court to review the ballot title.

If a registered voter petitions the Supreme Court to review the ballot title, the voter must notify the Elections Division by completing and filing form SEL 324 Notice of Ballot Title Challenge. If this notice is not timely filed, the petition to the Supreme Court may be dismissed.

Appeal Due September 24, 2020

How to Submit Appeal Refer to Oregon Rules of Appellate Procedure, Rule 11.30 or contact the Oregon Supreme Court for more information at 503.986.5555.

Notice Due 1st business day after appeal filed with Supreme Court, 5 pm

How to Submit Notice Scan and Email: irrlistnotifier.sos@oregon.gov Fax: 503.373.7414 Mail: 255 Capitol St NE Ste 501, Salem OR 97310

More information, including the certified ballot title and the Secretary of State's determination that the proposed initiative petition is in compliance with the procedural requirements established in the Oregon Constitution for initiative petitions, is contained under 2022 Initiatives, Referendums and Referrals available at www.oregonvotes.gov.

BT-03-20 Certified Letter

1162 Court Street NE, Salem, OR 97301-4096

Telephone: (503) 378-4402 Fax: (503) 378-3997 TTY: (800) 735-2900 www.doj.state.or.us

DEPARTMENT OF JUSTICE

APPELLATE DIVISION

September 10, 2020

Stephen N. Trout

Director, Elections Division

Office of the Secretary of State

255 Capitol St. NE, Ste. 501

Salem, OR 97301

Re: Proposed Initiative Petition — Changes Membership of Environmental Quality

Commission; Four of Five Required from Industries; Cannot be Removed.

DOJ File #BT-03-20; Elections Division #2022-003

Dear Mr. Trout:

We have received a comment submitted in response to the draft ballot title for

prospective Initiative Petition #03 (2022) (IP 03). Steven Berman, on behalf of Mr. Doug

Moore, submitted that comment. We provide the enclosed certified ballot title.

This letter summarizes the comment we received, our response, and the reasons we did or

did not make proposed changes to each part of the ballot title. We ultimately modified each

section of the ballot title. ORAP 11.30(6) requires this letter to be part of the record in the event

that the Oregon Supreme Court reviews the ballot title.

A. The caption

The ballot title must include a caption “of not more than 15 words that reasonably

identifies the subject matter of the state measure.” ORS 250.035(2)(a). The “subject matter” 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).” Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194

(2011). To identify the “actual major effect” of a measure, the Attorney General must consider

the “changes that the proposed measure would enact in the context of existing law.” Id. at 535;

Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). The caption must identify the

measure's subject matter in terms that will not “confuse or mislead potential petition signers and

voters,” and it cannot overstate or understate the scope of the legal changes that the measure

would enact. Buehler v. Rosenblum, 354 Or 318, 323, 311 P3d 882, 885 (2013) (quoting Mabon

v. Myers, 332 Or 633, 637, 33 P3d 988 (2001), Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62

(2004).

ELLEN F. ROSENBLUM Attorney General

FREDERICK M. BOSS Deputy Attorney General

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BT-03-20 Certified Letter

To fit into the 15-word limit, it may not be possible to include all major effects

specifically, and it will be necessary to describe major effects in general terms. Kendoll v.

Rosenblum, 358 Or 612, 618, 370 P3d 1245, 1249 (2016); McCann/Harmon v. Rosenblum, 354

Or 701, 707, 320 P3d 548 (2014); Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003).

The draft caption reads:

Changes Environmental Quality Commission composition; governor must appoint from

specified business industries, cannot remove members

Moore first comments that the caption is inadequate because it does not specifically state

that the measure will “repeal” the existing statutory provision regarding Commission

membership and that it is “well settled that when an initiative would repeal an existing provision

of law, the caption must so inform voters.” (Moore letter, 3). However, as noted, the caption

must identify the actual major effect or effects of the measure and must identify repeal of

existing law in the caption only if it is a major effect. See Fletchall v. Rosenblum, 365 Or 98,

105, 442 P3d 193 (2019) (Fletchall I) (“Although there is no requirement that the term ‘repeal’

be used to describe the change, the caption must somehow convey that IP 5 would eliminate the

existing constitutional provision for reapportionment by the legislature.”); Fletchall v.

Rosenblum, 365 Or 527, 529, 448 P3d 634 (2019) (Fletchall II) (where one major effect of

measure would be to repeal the existing constitutional provision that provides for redistricting by

the legislature, caption must so note). The Fletchall cases dealt with the repeal of a

constitutional provision. Here, by contrast, the repeals are statutory, and the caption explains the

major effects of the measure: the measure changes the composition of the Environmental Quality

Commission, requires the governor to appoint members from specified business entities, and

removes the governor’s power to remove members.

Commenter Moore also contends that the caption is deficient because it fails to explain to

voters that, if the measure passes, four out of five members of the Commission will be from the

industries the Commission is tasked with regulating, and fails to explain that the Commission’s

purpose is to protect the environment and the public from harm caused by those industries.

(Moore letter, 3-4). We agree that the fact that four out of five members on the Commission will

be from industries is a major effect that must be included in the caption, but disagree that the

caption must specify that they are industries regulated by the Commission because the

Commission is tasked with more than simply regulating the mining, agricultural, manufacturing,

and timber industries. See ORS 468.035 (setting out “functions of department”). Thus, we have

modified the caption so that it informs voters that the membership of the Commission will

change, and that a majority of members must be from industries. See Fletchall I, 365 Or at 108

(way that membership of redistricting commission would be allocated was “most politically

consequential feature” and such a major effect of measure must be included in caption).

Moore argues that the phrase “governor must appoint” is misplaced because it is not a

major effect of the measure and because it would leave voters with the “erroneous impression”

that the governor’s appointment authority is not subject to legislative oversight. (Moore letter,

4). We agree that the appointment process is unchanged and is therefore not a major effect, and

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BT-03-20 Certified Letter

have removed that phrase. We have also modified the first phrase in the caption to improve

readability.

We certify the following caption:

Changes membership of Environmental Quality Commission; four of five required

from industries; cannot be removed

B. The “yes” result statement

A ballot title must include a “simple and understandable statement of not more than 25

words that describes the result if the state measure is approved.” ORS 250.035(2)(b). The

statement should identify the measure’s “most significant and immediate effect.” Novick/Crew

v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004).

The draft “yes” result statement reads:

Result of “Yes” Vote: “Yes” vote requires governor to appoint members of

mining, agricultural, manufacturing, and timber industries to Environmental Quality

Commission; governor cannot remove members; imposes residency restriction.

Moore reiterates his comments regarding the caption. (Moore letter, 5). For the reasons

noted above, we have removed the language referring to the governor’s appointment power, and

have added the words “five-person” to convey the impact of the new requirement for

membership.

He also asserts that the phrase “imposes residency restriction” is vague and potentially

misleading, because voters might read it to mean that IP 3 requires Commission members to be

Oregon residents, or prohibits Commission members from residing in certain locations. (Moore

letter, 5). However, the measure provides that no two members of the Commission may reside

in the same Congressional district. To fully describe that effect would take words required to

describe the other significant effects. We have thus described it in simple and accurate terms.

We certify the following “yes” result statement:

Result of “yes” vote: “Yes” vote requires members from mining, agriculture,

manufacturing, and timber industries on five-person Environmental Quality Commission;

cannot remove members; residency restrictions.

C. The “no” result statement

A ballot title must include a “simple and understandable statement of not more than 25

words that describes the result if the state measure is rejected.” ORS 250.035(2)(c). The

statement “should ‘address[] the substance of current law on the subject matter of the proposed

measure.’” McCann v. Rosenblum, 354 Or 701, 707, 320 P3d 549 (2014), quoting Novick/Crew,

337 Or at 577 (emphasis omitted).

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BT-03-20 Certified Letter

The draft “no” result statement reads:

Result of “No” Vote: “No” vote retains current appointment process for

Environmental Quality Commission; governor retains full appointment discretion and

may remove members before expiration of term.

Moore comments that the statement is inadequate because the phrase “governor retains

full appointment discretion” inaccurately states current law, because any appointments made to

the Commission require Senate approval. (Moore letter, 5). We have removed the reference to

the governor and modified the statement to avoid confusion. We have also added words

describing the residency restriction so that the result statements are parallel.

We certify the following “no” result statement:

Result of “No” Vote: “No” vote retains current law allowing discretion in appointments to

Environmental Quality Commission; members may be removed before expiration of term;

no residency restriction.

D. The summary

A ballot title must include a “concise and impartial statement of not more than 125 words

summarizing the state measure and its major effect.” ORS 250.035(2)(d). The summary’s

purpose is to “help voters understand what will happen if the measure is approved.” Fred Meyer

Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989).

The draft summary reads:

Summary: The Environmental Quality Commission is a five-member board

that establishes policies and adopts rules and standards for the operation of the

Department of Environmental Quality and enforces rules and laws relating to air and

water pollution and environmental quality generally. Under current law, the governor

appoints members to four-year terms, subject to confirmation by the senate. The

governor may remove members before the expiration of their term; members may not

serve more than two consecutive terms. Measure requires the governor to appoint one

member each from the mining, agricultural, manufacturing, and timber industries. No

two members may reside in the same congressional district. Eliminates governor’s

authority to remove members.

Moore reiterates his comments regarding the caption and “yes” result statement. (Moore

letter, 5). For the same reasons noted above, we decline to add language specifically stating that

the measure repeals current law, but have added “subject to senate confirmation” to more fully

inform voters regarding the appointment process.

We certify the following summary:

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BT-03-20 Certified Letter

Summary: The Environmental Quality Commission is a five-member board that

establishes policies and adopts rules and standards for the operation of the Department of

Environmental Quality and enforces rules and laws relating to air and water pollution and

environmental quality generally. Under current law, the governor appoints members to

four-year terms, subject to senate confirmation. The governor may remove members

before the expiration of their term; members may not serve more than two consecutive

terms. Measure requires the governor to appoint one member each from the mining,

agricultural, manufacturing, and timber industries, subject to senate confirmation. No two

members may reside in the same congressional district. Eliminates governor’s authority to

remove members.

As revised, we certify the attached ballot title.

Sincerely,

/s/ Shannon T. Reel ______________________________

Shannon T. Reel

Assistant Attorney General

shannon.t.reel@doj.state.or.us

Enclosure

Mike Nearman

2570 Greenwood Road S

Independence, OR 97351

Elaine Woods

759 SW 175th Place

Beaverton, OR 97006

Tasha Webb

23480 Hall Road

Cheshire, OR 97419

Certified by Attorney General on September 10, 2020.

Shannon T. Reel

Assistant Attorney General

BALLOT TITLE

Changes membership of Environmental Quality Commission; four of five required

from industries; cannot be removed

Result of “Yes” Vote: “Yes” vote requires members from mining, agriculture,

manufacturing, and timber industries on five-person Environmental Quality Commission;

cannot remove members; residency restrictions.

Result of “No” Vote: “No” vote retains current law allowing discretion in

appointments to Environmental Quality Commission; members may be removed before

expiration of term; no residency restriction.

Summary: The Environmental Quality Commission is a five-member board

that establishes policies and adopts rules and standards for the operation of the

Department of Environmental Quality and enforces rules and laws relating to air and

water pollution and environmental quality generally. Under current law, the governor

appoints members to four-year terms, subject to senate confirmation. The governor may

remove members before the expiration of their term; members may not serve more than

two consecutive terms. Measure requires the governor to appoint one member each from

the mining, agricultural, manufacturing, and timber industries, subject to senate

confirmation. No two members may reside in the same congressional district.

Eliminates governor’s authority to remove members.