Oregon Advisory Opinions April 18, 1968: OAG 68-61 (April 18, 1968)

Oregon Attorney General Opinions

1968.

OAG 68-61.

---

572

Where an initiative petition circulated for signature differs from the "copy" of the petition required to be filed prior to such circulation, and the difference is of legal significance, signatures on the changed petition will not serve to place either version of the proposed measure on the ballot.

You state that a preliminary petition was filed with the Director of the De-

---

573

partment of Records and Elections of Washington County for a measure which would repeal the county's present home rule charter and enact a new charter in lieu thereof. Subsequently signatures were obtained in sufficient number to place the measure on the May primary ballot in Washington County.

You state that on the original, preliminary petition the proposed new charter contained the following provision:

"Chapter IX Section 8

" 'Zoning and Planning Regulations: Whereas this form of government recognizes that is (sic) an agency of the State of Oregon and avails itself of the privileges in matters of County concern to the full extent permissable [sic] under the Constitution and the Laws of the State of Oregon, and whereas ORS 215.070 & 215.108 which granted the power to carry out the zoning, planning and building permitted in ORS 215.070 and 215.090 have been repealed by the 1963 Legislature of the State of Oregon, in obedience to the laws of the State of Oregon there shall be no power to zone, plan or institute building codes under this form of government, within the County of Washington, Oregon.' "

" 'Until such a measure is presented to and receives the approval of 51% of the electorate, voting at a regularly scheduled election.' "

You then ask, in view of the difference between the preliminary petition filed with the Director of the Department of Records and Elections of Washington County, and the petition circulated for signatures, "* * * is any question raised as to whether the measure should be on the ballot, and which form of petition would prevail if a majority of voters approved it in May?"

Chapter V, § 51, of the Washington County Home Rule Charter, specifies that "Proposed amendments, revisions or proposals to repeal the county charter may be initiated by popular action under provision of the state law pertaining to the initiative and referendum powers with respect to county charters and legislation." ORS 203.780 provides in part:

"(1) This section, pursuant to section 10, Article VI, Oregon Constitution, describes the manner by which the initiative and referendum powers reserved to the legal voters of every county relative to the adoption, amendment, revision or repeal of a county charter and to legislation passed by counties which have adopted such a charter may be exercised. For the purposes of this section 'county legislation' means the adoption, amendment, revision or repeal of a county charter and legislation passed by counties which have adopted such a charter.

"(2) In all counties which do not provide by county legislation for the manner of exercising the initiative and referendum powers reserved by the Oregon Constitution to the people, as to their county legislation, the duties required of the Secretary of State by ORS 254.030 to 254.100, 254.110 to 254.170 and 255.410 to 255.450, as to state legislation, shall be performed as to such county legislation by the county clerk, or the county official whose functions and duties include the conduct of elections. * * *"

ORS 254.030 requires a preliminary petition to be filed prior to the circulation of a petition to obtain signatures, as follows:

"(1) Before or at the time of beginning to circulate any petition for the referendum to the people on any Act or part of any Act of the Legislative Assembly, or for any law, amendment to the Oregon Constitiution, city ordinance or amendment to a city charter proposed by the initiative, the persons or organizations under whose authority the measure is to be referred or initiated shall send or deliver to the Secretary of State, city clerk, recorder or auditor, as the case may be, a signed copy of such petition. Such officer shall file the signed copy in his office, and shall immediately examine it and specify the form, kind and size of paper on which such petition shall be printed for circulation for signatures. * * *" (Emphasis supplied)

In the situation you present, the petitions which have actually been signed contain a provision which is not included in the preliminary petition, and it must therefore be said that the preliminary petition was not truly a "copy" of the petition being circulated.

It could be contended that the version of the measure which was circulated for signatures could appear on the ballot because all of the voters signing the petition had an opportunity to read it, and we are advised that the original ballot title prepared by the district attorney would be equally applicable to the changed petition which was circulated and therefore the signers were not misled thereby.

In Townsend v. McDonald, (1931) 184 Ark. 273, 276, 42 S.W. (2d) 410, 412, the court said:

"* * * A full and correct copy of the measure attached to the petition would enable the signer thereto to act intelligently in the premises. Of course, he would not be required to read the measure, but it would be his duty to inform himself of its contents, and this would be a certain way for the signer to know that a different petition would not be presented from that signed by him. * * *"

The Oregon court has said:

"* * * If it is important that the ultimate voters be apprised of the question upon which they are asked to vote, and no one

---

574

disputes that it is, then it is also important that the petitions seeking to put a matter on the ballot apprise the petitioners of the true issues involved. * * *" Columbia River Salmon & Tuna Packers Association et al. v. Appling And Make Steelhead a Game Fish, Inc., (1962) 232 Or. 230, 233, 375 P. (2d) 71.

"The full-text requirement of our constitution means exactly what it says. The petition must carry the exact language of the proposed measure. * * *" Schnell et al. v. Appling, Oregon AFL-CIO, (1964) 238 Or. 202, 205, 395 P. (2d) 113.

But here, the measure which has been "proposed" is that one which was filed with the Director of the Department of Records and Elections. Or, if it is considered that the measure circulated in the petitions for signature is the measure "proposed" then we must conclude that the machinery for placing this measure on the ballot has never been initiated because of the fact that a "copy" of the petition was never filed with the Director of the Department of Records and Elections as required by ORS 254.030.

The language from the cases quoted above emphasizes the need for the voter to have the full text of a proposed measure before him when he is asked for his signature, on the grounds that only in this manner can he be certain to have access to the full information he may need in evaluating its desirability. However no one will be shocked, we submit, if we suggest that some voters sign such petitions without studying the entire text of the measure at the time their signature is requested. Possibly equally vital as a source for the voters' information is the "copy" which has been filed with the proper election official as the preliminary petition, for this is customarily the source to which the news media turn for their information in preparing reports and commentary concerning the contents of a proposed measure. Many voters rely on such reports and commentary in the news media in determining whether they will support or oppose a given measure, and therefore whether or not they will sign a petition to place the same on the ballot.

It thus cannot be said that a variance between the preliminary petition and the petition circulated for signature, where the variance is of such nature as to have legal significance, is a mere technicality. Sound reasons of public policy support the requirement that there be a "copy" of the measure being circulated officially on file and accessible to the news media and all interested citizens. Otherwise unless a voter is asked for his signature and takes advantage of that request to analyze the measure in detail, there is no place he can go where he will have a right to examine its contents and determine whether to encourage the acquisition of signatures therefor or to discourage persons from signing the petition.

The procedure initiated for placing the original measure on the ballot was never followed through, and the procedure for placing the later, changed version of the measure was never properly initiated.

For these reasons we conclude that the signed petition you have described for a proposed measure repealing the Washington County charter and enacting a new charter in lieu thereof will not serve to place such measure on the ballot.