OFFICE OF THE SECRETARY OF STATE

BEV CLARNO SECRETARY OF STATE

A. RICHARD VIALDEPUTY 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 October 28, 2019, for Initiative Petition 2020-041, proposed for the November 3, 2020, General Election.

Caption Prohibits "grocery stores" (defined) from operating more than two self-service checkouts; penalties; anti-retaliation lawsuits

Chief PetitionerTom Chamberlain 3645 SE 32nd Avenue Portland, OR 97202

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 November 12, 2019

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 in the IRR Database available at www.oregonvotes.gov.

100 SW Market Street, Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 TTY: (800) 735-2900 www.doj.state.or.us

DEPARTMENT OF JUSTICE APPELLATE DIVISION

October 28, 2019 Stephen N. Trout Director, Elections Division Office of the Secretary of State 255 Capitol St. NE, Ste. 501 Salem, OR 97310 Re: Proposed Initiative Petition — Grocery Store Service & Community Protection Act DOJ File #BT-41-19; Elections Division #2020-41 Dear Mr. Trout:

We have received the comments submitted in response to the draft ballot title for prospective Initiative Petition #41 (2020). Comments were submitted by Graham Trainor (President of the Oregon AFL-CIO and successor to the proposed measure’s chief petitioner), Jill Gibson (on Sandra McDonough’s behalf), and Evan R. Christopher (on Joe Gilliam’s behalf).

Commenter Trainor makes no suggestions and supports certification of the draft ballot title as written. Commenters Gibson and Christopher have submitted numerous suggestions to modify the draft ballot title. This letter summarizes those suggestions, our responses, and the reasons we did or did not make proposed changes to each part of the ballot title. We ultimately modified all portions of the draft 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.

We also enclose a copy of the certified 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(20(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 reads:

Prohibits “grocery stores” from operating more than two self-service checkout stations per location; penalties

ELLEN F. ROSENBLUM Attorney General

FREDERICK M. BOSS Deputy Attorney General

` Page 2

Commenters Gibson and Christopher both assert that the draft caption is flawed. Gibson argues that the caption’s use of the term “grocery stores” is misleading, because the average voter would understand the term to include only traditional grocery stores. She contends that the measure’s definition of “grocery stores” encompass a broader range of retailers, including many drug stores, hardware stores, and home improvement stores, as those retailers often sell food and beverages along with household maintenance items and prescription/over-the-counter drugs. She also suggests that the term “self-service checkout” be placed in quotation marks, to indicate to the public that the measure uses a special definition that may not conform to the public’s common understanding of that term. She opines that the measure’s definition of “self-service checkout” would cause most, if not all, self-checkout stations to not qualify, because customers routinely need human assistance to complete a self-checkout. Lastly, Gibson contends that the draft caption fails to inform voters of the major effect of allowing private right of action lawsuits. She suggests that the caption read: “Prohibits retail stores from using more than two ‘self-service checkouts’; authorizes private lawsuits, penalties.” Commenter Christopher also contends that the measure’s definition of the term “grocery store” is ambiguous, and that placing the term in quotation marks in the caption is insufficient to describe the wide breadth of the measure. He suggests the following caption: “Prohibits food, pharmacy, and ‘household maintenance’ stores in Oregon from using more than two self-checkouts.”

We agree that the term “grocery stores,” as defined by the measure, encompasses more than just traditional grocery stores. However, the measure’s definition does not extend as far as the commenters suggest in their proposed captions. The suggested captions are over inclusive because they imply that the measure would apply to all “retail stores,” or to all “food, pharmacy, and ‘household maintenance’ stores in Oregon.” Accordingly, we decline to modify the caption as suggested, but agree to add language that expressly states that the term “grocery stores” is defined by the measure. We disagree with Gibson’s contention that the term “self-service checkout” is unclear and would exempt “most” self-checkout stations. We believe that the average voter would readily understand the term as defined by the measure. We therefore decline to adopt her recommendation regarding that term. We agree with commenter Gibson that the measure’s creation of an anti-retaliation cause of action is a major effect that should be included in the caption.

We certify the following caption:

Prohibits “grocery stores” (defined) from operating more than two self-service checkouts; penalties; anti-retaliation lawsuits

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

` Page 3 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: “Grocery stores” cannot operate more than two self-service checkout stations at a time per location. Authorizes BOLI to enforce restrictions/ impose penalties for violations.

Commenters Gibson and Christopher take similar issue with the “yes” result statement,

and we have made similar changes to those we made to the caption: (1) we have expressly stated that the term “grocery stores” is defined by the measure; and (2) we have added that the measure authorizes anti-retaliation lawsuits.

Commenter Christopher also suggests that the “yes” result statement indicates that the term “operate” is ambiguous and undefined in the measure. In his view, the measure is unclear as to whether it prohibits stores from keeping self-service checkout stations plugged in and turned on, but not in use. We disagree that the term “operate,” as used in this measure, is unclear or requires further explanation. In context, the term “operate” can only mean to cause the self-service checkout stations to function, and the average voter would not be confused or misled by use of that term in the “yes” result statement.

We certify the following “yes” result statement:

Result of “Yes” Vote: “Yes” vote prohibits “grocery stores” (defined) from operating more than two self–service checkouts. Authorizes enforcement of restrictions and imposition of penalties, authorizes anti-retaliation lawsuits.

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 548 (2014) (quoting Novick/Crew, 337 Or at 577 (emphasis omitted)). The draft “no” result statement reads:

Result of “No” Vote: No law currently limits the number of self-service checkout stations that grocery stores may have in operation at any time.

Commenter Gibson contends that the draft “no” result statement is insufficient because it does not clarify that a ‘No’ vote would retain current law. She suggests the following modification: “‘No’ vote retains current law, which does not limit the number of self-service checkouts that retail stores may have in operation at any time.”

` Page 4 Commenter Christopher contends that the draft “no” result statement fails to adequately address the changes that voters would consider most important. In particular, he observes that the draft “no” statement does not mention penalties. Christopher also contends that the statement is vague, not sufficiently parallel, and fails to make use of the full word limit. He suggests the following changes: “Retains current law. Stores selling food, medications, household items may employ self-checkout stations as desired; there is no legal requirement to use or not use self-checkout stations.”

We agree to modify the “no” result statement to reflect that a no vote rejects the proposed limitation. But we decline to use the phrase “retains current law,” because there is no law that currently governs the use of self-service checkouts. We also decline to accept Commenter Christopher’s suggestion to address penalties in the “no” vote statement. It is readily understandable that, because there are no limits to the use of self-service checkouts in grocery stores, there are no penalties imposed for use of more than two self-service checkout stations.

We certify the following “no” result statement:

Result of “No” Vote: “No” vote rejects proposed limitation; no law currently limits the number of self-service checkouts that grocery stores may have in operation at any time.

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:

Currently, no law limits the number of self-service checkout stations that grocery stores may employ at any time. Measure restricts the number of self-service checkout stations in operation to no more than two at a time per location. Measure defines “grocery stores” as businesses that earn the majority of their gross income from the retail sale of “groceries,” which include prescription/over-the-counter drugs and household items when sold by retailers that also sell food and beverages. Measure grants BOLI the authority to enact rules to implement and enforce restriction, including imposition of escalating penalties for multiple violations by the same grocery store at different locations. Measure prohibits grocery stores from retaliating against those who file complaints alleging violation of this act.

Commenter Gibson contends that the draft summary contains the same deficiencies that appear in other parts of the draft ballot title. She also contends that the private enforcement scheme authorizes all individuals to bring lawsuits, not just “employees” or “customers,” and

` Page 5 that the measure does not simply prohibit “grocery stores” from retaliation, but any and all “employers.”

Gibson suggests the following modifications to the summary: “Currently, no law limits the number of self-service checkouts that retail stores may employ at any time. Measure restricts the number of ‘self-service checkout’ (defined) operating to no more than two at a time per location. Measure applies to ‘grocery stores,’ defined as businesses that earn the majority of their gross income from the retail sale of ‘groceries,’ which include prescription/over-the-counter drugs and household items when sold by retailers that also sell food and beverages. Unclear if the store must sell all such items. Authorizes BOLI to enact rules to implement and enforce. Authorizes individuals to file complaints regarding ‘self-checkouts’ (defined); individuals alleging ‘retaliation’ (undefined) for filing complaint may bring private lawsuits under whistleblower and Unfair Trade Practice laws.” Commenter Christopher contends that the summary does not accurately or completely summarize the measure’s major effects because it fails to alert voters to the total volume of uncertainty contained within the measure. Specifically, he suggests that the summary explain the undefined phrases “business in the State of Oregon” and “operates.” He also contends that the measure’s “penalty matrix” applies to only grocery stores that have multiple locations, and exempts stores with only one location or with multiple locations but only one location that uses self-service checkouts. Lastly, Christopher takes issue with the measure’s failure to inform voters that its headings are not part of the proposed law, but are included for the convenience of the reader. Christopher suggests the following summary: “Currently, state law does not limit number of self-checkout stations stores may use at a location nor require stores to use self-checkout stations. Measure restricts any “business in the State of Oregon” (undefined) that earns more than 50% of its revenue from the sale of food or beverages—or from the sale of medications of ‘household maintenance items’ if it also sells any food and beverages—from ‘operating’ (undefined) more than two self-checkout stations per location. Creates private cause of action for employees, customers alleging retaliation for complaining about self-checkout stations. Bureau of Labor and Industries may impose fines. Fines increase only for repeated violations by same business at different locations; fines capped for stores with only one location. Measure headings are part of law.” We have modified the summary to better clarify the measure’s creation of a private cause of action for individuals alleging retaliation for filing complaints about the number of self-service checkouts at grocery stores. We agree with Commenter Gibson that the measure does not limit standing to bring lawsuits to only employees or customers of grocery stores, and that the measure’s language is more inclusive than the draft summary indicates:

3. Any Oregon resident may file a complaint with BOLI alleging a violation, free from fear of retaliation.

` Page 6

4. Any employee alleging retaliation by their employer for making a complaint alleging violations of this act may bring a cause of action pursuant to ORS 659A.199.

5. Any Oregon consumer alleging a violation of this act may file a complaint with the

Oregon Department of Justice, Consumer Protection Division. Retaliation against a consumer for complaining about a violation of this act shall be an unlawful trade practice under ORS 646.605 et seq.

(Emphases added). However, when viewed in context, it is unclear if the measure applies as broadly as Gibson suggests it does. Accordingly, we modified the summary to indicate that a private cause of action can be brought by “certain” individuals.

We disagree with Commenter Christopher that the measure’s “penalty matrix” exempts or caps fines for stores with only one location or with multiple locations but only one location that uses self-service checkouts. The measure authorizes BOLI to “enact rules as necessary to implement this act, including a penalty matrix that imposes increasing fines for multiple violations made by the same grocery store at different locations.” (Emphasis added). Because BOLI is not prohibited from enacting further rules and penalties that might apply to a single grocery store or to chains of grocery stores that have only one store with self-service checkout stations, it could mislead voters to state that the measure exempts or caps penalties for certain stores. We therefore decline to modify the portion of the summary describing BOLI’s authority to enact rules regarding penalties.

And we disagree that the summary must mention that the headings in the measure would be incorporated into the law. The relationship between the headings and the text is not a major effect of the measure. Regardless of the legislature’s practice of excluding headings from the text, there is no requirement that citizen initiatives exclude headings. Moreover, the inclusion of headings does not reflect any change in the law. We certify the following summary:

Summary: Currently, no law limits the number of self-service checkouts that “grocery stores” may operate at any time. Measure restricts the number of self-service checkouts in operation to no more than two at a time per location. Defines “grocery stores” as businesses in Oregon that earn the majority of their gross income from the sale of “groceries” (defined), which include prescription/over-the-counter drugs and household items when sold along with food and beverages. Grants BOLI the authority to enact rules to implement and enforce restriction, including imposition of escalating penalties for multiple violations by the same grocery store at different locations. Creates private cause of action for certain individuals alleging retaliation after filing complaints under whistleblower or Unfair Trade Practice laws.

` Page 7 E. Conclusion We certify the attached ballot title.

Sincerely, /s/ Joanna Hershey ______________________________ Joanna Hershey Senior Assistant Attorney General joanna.hershey@doj.state.or.us

Enclosure Tom Chamberlin Jill Gibson Evan R. Christopher

Certified by Attorney General on October 28, 2019. /s/ Joanna Hershey Assistant Attorney General

BALLOT TITLE

Prohibits “grocery stores” (defined) from operating more than two self-service checkouts; penalties; anti-retaliation lawsuits

Result of “Yes” Vote: “Yes” vote prohibits “grocery stores” (defined) from operating

more than two self–service checkouts. Authorizes enforcement of restrictions and imposition of

penalties, authorizes anti-retaliation lawsuits.

Result of “No” Vote: “No” vote rejects proposed limitation; no law currently limits

the number of self-service checkouts that grocery stores may have in operation at any time.

Summary: Currently, no law limits the number of self-service checkouts that

“grocery stores” may operate at any time. Measure restricts the number of self-service checkouts

in operation to no more than two at a time per location. Defines “grocery stores” as businesses

in Oregon that earn the majority of their gross income from the sale of “groceries” (defined),

which include prescription/over-the-counter drugs and household items when sold along with

food and beverages. Grants BOLI the authority to enact rules to implement and enforce

restriction, including imposition of escalating penalties for multiple violations by the same

grocery store at different locations. Creates private cause of action for certain individuals

alleging retaliation after filing complaints under whistleblower or Unfair Trade Practice laws.