Ady v. Rosenblum

371 Or. 702

540 P.3d 554

Hugh ADY, Petitioner on Review,andReed Scott-Schwalbach, Petitioner on Review,

v.Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent on Review.

SC S070443 (Control), SC S070446

Supreme Court of Oregon.

December 7, 2023

Eric C. Winters, Wilsonville, filed the petition and reply memorandum for petitioner Hugh Ady.

Margaret S. Olney, Bennett Hartman, LLP, Portland, filed the petition and reply memorandum for petitioner Reed Scott-Schwalbach.

Carson L. Whitehead, 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.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, and James, Justices.^*

GARRETT, J.

Chief petitioner Ady and petitioner Scott-Schwalbach separately challenge the Attorney General's certified ballot title for Initiative Petition 30 (2024) (IP 30). We review the ballot title for substantial compliance with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we reject all but two of the arguments raised by petitioners. Because we conclude that the ballot title for IP 30 requires modification in two respects, we refer it to the Attorney General for modification.

I. BACKGROUND

If adopted, IP 30 would establish a program to provide state funding to certain families who incur "qualified expenses" for educating their children outside of the public school system. IP 30 § 2(1); id . § 2(3)(b). IP 30 defines "qualified expenses" to include tuition and fees at a "participating school," id . § 1(5), a defined term that refers to a "provider of educational services as described in ORS 339.030(1)(a), (d), (e) [,] or (h)," id . § 1(3). Those statutory references describe children who are exempt from compulsory public school attendance because they attend "a private or parochial school" ( ORS 339.030(1)(a) ), have a "private teacher" ( ORS 339.030(1)(d) ), or are home-schooled ( ORS 339.030(1)(e) ). In other words, one effect of IP 30 would be to allow certain students to receive state funding to attend parochial schools.

All households having an adjusted gross income of $125,000 or less would be eligible to receive those funds. IP 30 § 10.¹ The funding would be provided through a new "Education Savings Account Program" administered by the state. IP 30 §§ 2(2), 2(5), 3, 4.² The individual accounts within that program would be funded through transfers by the Department of Education of monies calculated as a percentage of the "statewide average distribution," id . § 2(5) (c)(A), which IP 30 defines as "an amount determined by the Department of Education each school year to equal the average per student distribution of the State School Fund as general purpose grants for all school districts in this state, as adjusted by any weights described in ORS 327.013(1)(c) (A)(i) and (ii)," id . § 1(7).

In addition to creating the Education Savings Account Program, IP 30 would change state law regarding the process for inter-district transfers, id . § 18, and it would increase the percentage of students in each school district who can be enrolled in virtual public charter schools without district approval from three percent to six percent, id. § 21.

A state measure's ballot title has three statutory components: (1) a caption of not more than 15 words that reasonably identifies the measure's subject matter; (2) simple and understandable statements of 25 words or less that describe the result of a ‘yes’ vote and a ‘no’ vote; and (3) a concise and impartial statement of no more than 125 words that summarizes the measure. ORS 250.035(2). For IP 30, the Attorney General certified the following ballot title:

"Provides public funds for homeschooling, private/ religious school tuition, expenses; income eligibility. Establishes cross-district enrollment"

"Result of ‘Yes’ Vote : ‘Yes’ vote provides public funds for homeschooling, religious or private tuition, qualified expenses. Income eligibility. Establishes cross-district enrollment, with limitations. Allows additional virtual charter programs.

"Result of ‘No’ Vote : ‘No’ vote maintains current system of educational funding; no public funds for homeschool, private, or religious school tuition; some publicly funded programming/services available.

"Summary : Currently, Oregon resident students are entitled to free, appropriate public education; no public funds for homeschool, private, or religious school tuition; some publicly funded programming/services available. Provides public funds for qualified students through accounts maintained by State Treasury. Annual amount per student equals 80% of statewide average amount provided to school districts for each child enrolled in public schools. Funds directed from monies otherwise appropriated to State Department of Education for public schools. Initially available to low-income (defined), then to resident students with household adjusted gross income under $125,000 (adjusted annually). Accounts used for homeschooling, religious/private school tuition, qualified expenses. Recipients need not change creed, practices, admissions, curriculum. Establishes cross-district enrollment. Allows additional virtual charter schools. Constitutionality of religious school funding uncertain."

Chief petitioner Ady challenges all parts of the ballot title. Petitioner Scott-Schwalbach challenges the vote result statements and the summary. For the reasons discussed below, we conclude that the Attorney General should modify the "yes" result statement and the summary in two respects, but we reject the other challenges.

II. DISCUSSION

A. Caption

The caption must "reasonably identif[y] the subject matter" of the proposed measure in 15 words or less. ORS 250.035(2)(a). We have explained that the subject matter of a proposed measure is its "actual major effect." Whitsett v. Kroger , 348 Or. 243, 247, 230 P.3d 545 (2010) (internal quotation marks omitted). If the measure has more than one major effect, then the caption must identify "all such [major] effects (to the limit of the available words)." Id . We determine the subject matter by examining the words of the proposed measure, as well as "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 P.3d 62 (2004).

Chief petitioner Ady contends that the caption fails to meet those standards in several ways. For the convenience of the reader, we set out the certified caption again:

"Provides public funds for homeschooling, private/ religious school tuition, expenses; income eligibility. Establishes cross-district enrollment"

Chief petitioner Ady's primary objections turn on the use of the words "homeschooling, private/religious school tuition, expenses." As an initial matter, he maintains that the reference to "religious school[s]" is misleading regarding the subject matter: the term "religious school" is not used in either IP 30 or the statutes it references, and he contends that the term is ambiguous in a way that "parochial school" is not.

The Attorney General responds that "religious school" is a synonym for "parochial schools" that is more easily understood by voters. We agree with the Attorney General that the caption is sufficient despite using the term "religious school." It is synonymous with "parochial school," and we do not think the term is ambiguous or misleading. See Webster's Third New Int'l Dictionary 1643 (unabridged ed. 2002) (defining "parochial school" as "a school maintained by a religious body usu. for elementary instruction").

Chief petitioner Ady also contends that the caption should not refer to the funding of "religious" schools as a major effect and that, by doing so, the caption omits reference to another major effect: that the number of students who could opt into attending a virtual charter school is increased. The Attorney General contends that providing public funds to those entities would be a significant change to existing law. As we understand Ady's response, Ady does not dispute that providing public funds to religious schools would be a major effect; Ady's contention, rather, is that this cannot be said to be a major effect of the measure because the constitutional status of such funding is uncertain. That is: On the one hand, the Oregon Constitution restricts the use of public funds to finance religious education. Or. Const, Art. I, § 5 (prohibiting use of state funds "for the benefit of any religeous [sic], or theological institution"); see Dickman et al v. School Dist. 62C et al. , 232 Or. 238, 366 P.2d 533 (1961), cert. den. , 371 U.S. 823, 83 S.Ct. 41, 9 L.Ed.2d 62 (1962) (concluding that Article I, section 5, had been violated by a school district providing text-books to pupils of parochial schools without charge). On the other hand, as both Ady and the Attorney General observe, the First Amendment to the United States Constitution may pose a barrier to applying that provision of the Oregon Constitution in a manner that excludes religious schools from distributions available to nonreligious private schools. See Espinoza v. Mont. Dep't of Revenue , 591 US ––––, 140 S. Ct. 2246, 2261, 207 L. Ed. 2d 679 (2020) ("A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.").

To be sure, the provision in IP 30 that would provide public funds for religious schools raises questions under the state and federal constitutions. Whether and to what extent that provision may withstand constitutional scrutiny does not bear, however, on whether it is a major effect of the measure that must be reflected in the caption. The measure, by its terms, purports to provide such funding, and we agree with the Attorney General that that is a major effect of the measure.³

Chief petitioner Ady also contends that the...