
Filed: March 14, 2002 
IN THE SUPREME COURT OF THE STATE OF OREGON
KRIS KAIN
and TRICIA BOSAK,
Petitioners,
	v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S49112)
	En Banc
	On petition to review ballot title.
	Argued and submitted January 15, 2002.
	Margaret S. Olney, Smith, Gamson, Diamond & Olney, Portland,
argued the cause and filed the petition for petitioners.
	Douglas F. Zier, Assistant Attorney General, Salem, argued
the cause and filed the answering memorandum for respondent. 
With him on the answering memorandum were Hardy Myers, Attorney
General, and Michael D. Reynolds, Solicitor General.
	DURHAM, J.
	Ballot title referred to Attorney General for modification.
	DURHAM, J.
	This is a ballot title review proceeding.  Petitioners
challenge the Attorney General's ballot title for Initiative
Petition 138 (2002). (1)
	The Attorney General certified the following ballot
title for Initiative Petition 138:

"AMENDS CONSTITUTION: LIMITS TIME FOR
PRE-ELECTION CHALLENGES TO BALLOT
MEASURES; PROHIBITS POST-ELECTION
CHALLENGES; APPLIES RETROACTIVELY
		"RESULT OF 'YES' VOTE: 'Yes' vote requires
challenges to ballot measures be brought within 30 days
after Secretary of State certifies ballot title;
prohibits post-election challenges; applies
retroactively.
		"RESULT OF 'NO' VOTE: 'No' vote retains current
law that allows challenges to ballot measures to be
raised more than 30 days after Secretary of State
certifies ballot title.
		"SUMMARY:  Amends constitution.  Currently, court
challenges that initiative violates constitutional,
other requirements can be raised more than 30 days
after ballot title is certified; constitutional
challenges can be raised after election held.  Measure
establishes 30-day deadline after ballot title
certified for challenging adequacy, completeness of
ballot titles, explanatory statements.  Establishes
same deadline for challenging determination that
initiative meets constitutional requirements of single
subject, single amendment, separate vote, full text,
constitutional amendment not revision.  Prohibits post-election challenges on these grounds.  Prohibits courts
from invalidating, nullifying, enjoining implementation
of or counting/canvassing votes for citizen-initiated
measures due to errors/omissions of elections officers
or when appeal of Secretary of State's certification is
untimely.  Applies retroactively; voids court decisions
invalidating measures on specified grounds.  Other
provisions."

	Petitioners argue that the caption is inaccurate in
stating that the proposed measure "prohibits post-election
challenges."  Petitioners contend that the proposed measure would
prohibit certain post-election challenges to a ballot measure,
i.e., those that assert that the measure violates "procedural and
technical requirements" for initiative measures.  According to
petitioners, the proposed measure does not prohibit all post-election challenges, including those that might raise a conflict
with the United States Constitution.  To overcome that erroneous
inference, petitioners contend that the phrase in question should
state that the proposed measure prohibits "certain" post-election
challenges, not all of them.  Petitioners also assert that the
Attorney General's "yes" vote result statement suffers from a
similar defect.
	In response, the Attorney General argues that
petitioners' argument to this court is a change of the position
that petitioners advanced in their comments regarding the
Attorney General's draft ballot title.  The Attorney General also
contends that his caption is sufficient in any event.
	ORS 250.085(6) provides that this court, in reviewing a
ballot title, 

	"shall not consider arguments concerning the ballot
title not presented in writing to the Secretary of
State unless the court determines that the argument
concerns language added to or removed from the draft
title after expiration of the comment period provided
in ORS 250.067."

	The Attorney General acknowledges that petitioners'
argument in this proceeding "concerns language added to or
removed from the draft title" after the comment period expired. 
The Attorney General, however, complains that the wording in
question

	"was added at petitioners' own urging, and they should
not be permitted to change their argument 180 degrees
once their suggested revision was incorporated."

	We have no occasion in this proceeding to decide
whether ORS 250.085(6) bars inconsistent arguments about a ballot
title, as the state argues.  Petitioners' comments on the draft
ballot title indicated that the proposed measure would eliminate

	"virtually all judicial review of whether initiatives
comply with constitutional and other provisions
relating to the lawful placement of an initiative on
the ballot."

(Emphasis added.)  Additionally, petitioners' proposed amendments
to the caption and "yes" vote result statement indicated that
petitioners' concern focused on the proposed initiative's
prohibition on post-election challenges to an initiative's lawful
placement on the ballot, not a purported limitation on all post-election challenges of any kind.  Although some passages of
petitioners' comments to the Secretary of State, when viewed in
isolation, support the Attorney General's reading, we conclude
that those comments, when considered as a whole, raised the same
objection regarding the proposal's prohibition on certain kinds
of post-election challenges that petitioners now submit to this
court.  We turn, then, to the merits of that objection.  The
Attorney General acknowledges that 

	"[t]he proposed measure prohibits post-election ballot
measure challenges based on adequacy and completeness
of the ballot title or explanatory statement as well as
challenges based on claims that the proposed measure
violates constitutional requirements of single subject,
single amendment, separate vote, full text, and
constitutional amendment not revision."

However, the Attorney General contends that the phrase in the
caption, "prohibits post-election challenges," "does not
necessarily imply that all such challenges are prohibited." 
(Emphasis in original.)  The Attorney General also argues that
the summary "spells out in more precise detail the scope of the
proposed measure's prohibition of post-election challenges."
	In conducting our review, we examine the ballot title's
statements regarding the law that the proposed measure would
create to determine whether they are accurate.  We do so 

	"to ensure that the ballot title does not misstate,
even by implication, the law that the proposal would
enact, and 'thereby create a spurious argument to
support the measure's passage.'"


Novick/Bosak v. Myers, 333 Or 18, 24, 36 P3d 464 (2001) (quoting
Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995)).
	A ballot title caption must include "not more than 15
words that reasonably identif[y] the subject matter of the state
measure."  ORS 250.035(2)(a).  Because the caption is the
cornerstone for the other portions of the ballot title, the
caption must identify the subject matter of the proposed measure
"in terms that will not confuse or mislead potential petition
signers and voters."  Mabon v. Myers, 332 Or 633, 637, 33 P3d 988
(2001).
	The Attorney General concedes that the proposed
measure, if approved, would prohibit only certain kinds of post-election legal challenges to ballot measures.  That topic, in
general, is a "subject matter" of the proposed measure within the
meaning of ORS 250.035(2)(a).  However, the wording that the
Attorney General has chosen to describe that subject matter,
"prohibits post-election challenges," does not disclose, or even
hint at, the fact that the proposed measure's prohibition
addresses some, but not all, potential post-election challenges
to an approved ballot measure.  The Attorney General's wording
erroneously implies that the proposed measure, if approved, would
prohibit all post-election challenges.  Because that erroneous
implication is likely to confuse or mislead voters about the law
that the proposed measure would enact, the Attorney General's
caption fails to comply substantially with ORS 250.035(2)(a) and
requires modification.
	As noted above, petitioners raise the same objection
with respect to the Attorney General's "yes" vote result
statement, which contains the same challenged phrase discussed
above in connection with the caption.  For the reasons discussed
above, we conclude that the Attorney General's "yes" vote result
statement does not comply substantially with ORS 250.035(2)(b)
and requires modification.
	Ballot title referred to Attorney General for
modification.




1. 	Initiative Petition 138 (2002), if approved, would add
the following provisions to the Oregon Constitution:

		"Section 1.  The People of the State of Oregon
find and declare that it is now and has been since the
establishment of the initiative process in Oregon the
sole responsibility of the Secretary of State to insure
that initiatives comply with all technical and
procedural requirements before allowing them to be
circulated.
		"(a) Within 30 days of the date an initiative is
filed with the Secretary of State, the Secretary of
State shall examine the initiative and insure that it
complies with all procedural and technical requirements
before allowing the petition to be circulated.  It
shall be considered an error on the part of the
Secretary of State to approve for circulation an
initiative petition that does not comply with all
procedural and technical requirements.  Any appeal of a
Secretary of State decision regarding whether an
initiative complies with procedural and technical
requirements that an initiative petition must be filed
not later than 30 days after the date the decision was
made.  No other challenge based on procedural or
technical grounds may be filed.
		"(b) For purposes of this section, 'procedural and
technical requirements' means a finding by a court that
a measure unlawfully constitutes a revision of the
constitution, violates the single subject requirement,
the single amendment requirement, the separate vote
requirement, the full text requirement, or any other
such requirement that is procedural or technical in
nature, including a violation caused by one or more
errors and/or omissions by an elections officer or a
finding that the ballot title or explanatory statement
for a measure was not accurate or did not completely or
adequately describe the measure.
		"(c) No Oregon court shall invalidate, nullify,
enjoin the implementation of, or prevent the counting
or canvassing of the votes for a citizen initiated
measure due to one or more errors or omissions on the
part of an elections officer or if the appeal of the
decision by the Secretary of State was not filed within
the time limitations set forth in this section.
		"(d) This section shall be in effect regarding any
measure appearing on the ballot on or after the date of
the 2000 general election.  Any court decision
conflicting with this section is null and void."
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