OFFICE OF THE SECRETARY OF STATE

DENNIS RICHARDSON SECRETARY OF STATE

LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE

ELECTIONS DIVISION

STEPHEN N. TROUT

DIRECTOR

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

(503) 986-1518

L E G I S L A T I V E R E F E R R A L

TO: All Interested Parties

FROM: Lydia Plukchi, Compliance Specialist

DATE: May 1, 2018

SUBJECT: Legislative Referral 2018-401 Certified Ballot Title

The Elections Division received a certified ballot title from the Attorney General on May 1, 2018, for Legislative Referral 2018-401, proposed for the November 6, 2018, General Election.

Caption

Amends Constitution: Allows local bonds for financing affordable housing with nongovernmental entities. Requires voter approval, annual audits

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 How to Submit Appeal

May 15, 2018 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 How to Submit Notice Where to Submit Notice

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

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

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

May 1, 2018

Stephen N. Trout

Director, Elections Division

Office of the Secretary of State

255 Capitol St. NE, Ste. 501

Salem, OR 97310

Re: Proposed Legislative Referral — Amends Constitution: Allows Local Bonds for

Financing Affordable Housing With Nongovernmental Entities. Requires Voter

Approval, Annual Audits.

DOJ File #LR 401; Elections Division #2018-401

Dear Mr. Trout:

We received comments on the Attorney General’s draft ballot title for Legislative

Referral 401 (2018) from Secretary of State Dennis Richardson and Alison McIntosh (through

counsel, Steven C. Berman). Secretary Richardson and Ms. McIntosh both suggest changes to

the draft ballot title’s caption and “yes” result statement. This letter discusses the commenters’

suggestions and our response to them.

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.” Rasmussen

v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). The draft caption provides:

Amends Constitution: Allows local bonds for financing affordable housing with

nongovernmental entities. Requires voter approval, annual audits

We received comments on the caption from Secretary Richardson and Ms. McIntosh.

Secretary Richardson suggests that the wording “affordable housing with

nongovernmental entities” is confusing and that the wording “local bonds” could lead a reader to

believe that the measure deals with both public and private bonds. He recommends, as an

ELLEN F. ROSENBLUM Attorney General

FREDERICK M. BOSS Deputy Attorney General

`

Page 2

alternative caption, “Amends Constitution: Allows local government bonds for financing

privately-owned affordable housing. Requires voter approval, annual audits.”

Ms. McIntosh suggests that the second sentence of the caption inform readers that the

required voter approval is by the voters of that local jurisdiction. She proposes, as an alternative

caption, “Amends Constitution: Allows local bonds financing affordable housing with

nongovernmental entities. Requires local voter approval, annual audits.”

We do not find any of the commenters’ objections to the caption to be persuasive. We

are concerned that Secretary Richardson’s suggested phrase “privately-owned affordable

housing” would not capture the full spectrum of arrangements that this measure implicates,

because the measure could allow local jurisdictions to partner with nongovernmental entities in

ways other than exclusively private ownership. And space considerations preclude adding either

“government” (as Secretary Richardson suggests) or “local” (as Ms. McIntosh suggests). We

think it is unlikely that readers will be confused by the terms “local bonds” or “voter approval”

in the caption, and both concepts are clarified in the certified “yes” result statement. We decline

Ms. McIntosh’s suggestion to make room for “local” in the second sentence by removing the

word “for” in the first sentence because, in our view, that would make the first sentence more

difficult for a reader to parse correctly.

We certify the following caption:

Amends Constitution: Allows local bonds for financing affordable housing with

nongovernmental entities. Requires voter approval, annual audits

B. The “yes” vote 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 “yes”

vote result statement should identify “the most significant and immediate” effects of the

measure. Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). The draft “yes” vote

result statement provides:

Result of “Yes” Vote: “Yes” vote amends constitution to allow local

governments to issue bonds to finance affordable housing with nongovernmental

entities. Requires voter approval, annual audits, public reporting.

We received comments on the “yes” result statement from Secretary Richardson and Ms.

McIntosh. Secretary Richardson recommends “similar wording changes” as he suggested for the

caption. Ms. McIntosh suggests removing the words “amends constitution to,” which she

contends are unnecessary, and replacing “Requires voter approval” with “Requires local voters’

approval of bonds.”

We disagree with Secretary Richardson’s suggestion for the reasons discussed above.

We agree with Ms. McIntosh’s suggestion that we clarify that the required approval is from local

voters and modify the “yes” result statement as she proposes.

`

Page 3

We certify the following “yes” result statement:

Result of “Yes” Vote: “Yes” vote allows local governments to issue

bonds to finance affordable housing with nongovernmental entities. Requires

local voters’ approval of bonds, annual audits, public reporting.

C. The “no” vote result statement and summary

We received no comments on the other parts of the draft ballot title. We conclude,

however, that Ms. McIntosh’s suggestion about the “yes” result statement should also be

incorporated into the summary, and thus we insert the word “local” before “voters” in the third

full sentence of the summary. We certify the following “no” result statement and summary

Result of “No” Vote: “No” vote retains constitutional prohibition on

local governments raising money for/ loaning credit to nongovernmental entities;

no exception for bonds to pay for affordable housing.

Summary: Amends Constitution. The constitution currently prohibits

most local governments from raising money for, or loaning credit to, or in aid of,

any private entity. Measure allows local governments to issue general obligation

bonds to finance the cost of constructing affordable housing including when the

funds go to a nongovernmental entity. Measure requires that local authorizing

bonds be approved by local voters and describe affordable housing to be financed.

The jurisdiction authorizing bonds must provide annual audits and public

reporting on bond expenditures. Measure limits jurisdiction’s bonded

indebtedness for capital costs of affordable housing to one-half of one percent of

the value of all property in the jurisdiction.

D. Conclusion

We certify the ballot title attached to this letter.

Sincerely,

/s/ Benjamin Gutman ______________________________

Benjamin Gutman

Solicitor General

benjamin.gutman@doj.state.or.us

Enclosure

cc: Legislative Assembly Steve Berman Dennis Richardson

209 SW Oak St. Ste 500 900 Court St. NE #136

Portland, OR 97204 Salem, OR 97310

Certified by Attorney General on May 1, 2018. /s/ Benjamin Gutman

Solicitor General

BALLOT TITLE

Amends Constitution: Allows local bonds for financing affordable housing with

nongovernmental entities. Requires voter approval, annual audits

Result of “Yes” Vote: “Yes” vote allows local governments to issue bonds to

finance affordable housing with nongovernmental entities. Requires local voters’

approval of bonds, annual audits, public reporting.

Result of “No” Vote: “No” vote retains constitutional prohibition on local

governments raising money for/ loaning credit to nongovernmental entities; no exception

for bonds to pay for affordable housing.

Summary: Amends Constitution. The constitution currently prohibits most local

governments from raising money for, or loaning credit to, or in aid of, any private entity.

Measure allows local governments to issue general obligation bonds to finance the cost of

constructing affordable housing including when the funds go to a nongovernmental

entity. Measure requires that local authorizing bonds be approved by local voters and

describe affordable housing to be financed. The jurisdiction authorizing bonds must

provide annual audits and public reporting on bond expenditures. Measure limits

jurisdiction’s bonded indebtedness for capital costs of affordable housing to one-half of

one percent of the value of all property in the jurisdiction.