
FILED:  April 20, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
EDWIN EUGENE PATTERSON,
Petitioner,
v.
HARDY MYERS,Attorney General,State of Oregon,
Respondent.
_________________________________________________________________

ELLEN LOWE,
Petitioner,
     v.
HARDY MYERS,Attorney General,State of Oregon,
Respondent.
(SC S47295, S47296)
(Consolidated for Argument and Opinion)
En Banc
On petitions to review ballot titles.
 
Argued and submitted March 30, 2000.
Bruce A. Bishop, of Harrang Long Gary Rudnick P.C., Salem,
argued the cause and filed the petition for petitioner Edwin
Patterson.  With him on the petitions was James E. Mountain Jr.
James Coon, of Swanson, Thomas & Coon, Portland, argued the
cause and filed the petition for petitioner Ellen Lowe.
Rolf C. Moan, Assistant Attorney General, Salem, argued the
cause and filed the answering memoranda for respondent.  With him
on the memoranda were Hardy Myers, Attorney General, and Michael D.
Reynolds, Solicitor General.
LEESON, J.
Ballot title certified as modified.  This decision shall
become effective in accordance with ORAP 11.30(10).
Van Hoomissen, J., dissented and filed an opinion.
LEESON, J.
This is a consolidated ballot title review proceeding
respecting the Attorney General's certified ballot title for a
proposed initiative measure, denominated Initiative Petition 133
(2000).  Petitioners are electors who timely submitted written
comments concerning the content of the Attorney General's draft
ballot title and who therefore are entitled to seek review.  See
ORS 250.085(2) (stating that requirement).  We review the Attorney
General's certified ballot title to determine whether it
substantially complies with the requirements of ORS 250.035
(1997). (1) See ORS 250.085(5) (setting standard).  For the reasons
that follow, we conclude that the caption and the "yes" vote result
statement do not comply substantially with the statutory standards. 
We modify the Attorney General's certified ballot title
accordingly. 
Under the proposed measure, proceeds paid to this state by
United States tobacco products manufacturers, pursuant to a "Master
Settlement Agreement of 1998," would be dedicated to a health-care
trust fund, and the earnings from the trust would be used to
provide health-care services for low-income persons.  The Attorney
General certified the following ballot title to the Secretary of
State:
"TOBACCO-SETTLEMENT PROCEEDS RESTRICTED TO PROVIDING LOW-INCOME HEALTH CARE
"RESULT OF 'YES' VOTE:  'Yes' vote requires using
all tobacco-settlement proceeds for health care for low-income persons.


"RESULT OF 'NO' VOTE:  'No' vote leaves use of
tobacco-settlement proceeds unrestricted, rejects
creation of health trust fund.
"SUMMARY:  Currently, use of proceeds from
settlement with tobacco products manufacturers is
unrestricted.  Measure places entire settlement into
trust fund.  Requires continuous appropriation of all
fund earnings, for medical, dental, other remedial care
services for low-income persons.  Principal may be used
for those purposes if court order or settlement agreement
requires principal to go to federal government, or upon
2/3 approval by legislature when certain economic
conditions indicate presence or likelihood of recession. 
Prohibits appropriations for other purposes, or under
other conditions, absent voters' approval."

Petitioner Patterson challenges the caption, the "yes"
and "no" vote result statements, and the summary.  Petitioner Lowe
challenges only the caption and the "yes" vote result statement. 
ORS 250.035(2)(a) (1997) requires a ballot title to
contain a caption of not more than 10 words that "reasonably
identifies the subject matter" of the proposed measure.  Petitioner
Patterson contends that the Attorney General's caption is not
informative, that it is written in a manner that might dissuade
voters from approving the measure, and that it fails to inform
voters that the measure would put the proceeds of the tobacco
settlement into a trust fund and dedicate the earnings from that
fund to providing health care for low-income persons.  Petitioner
Patterson proposes the following caption:  "CREATES 'OREGON HEALTH
PLAN TRUST FUND' WITH TOBACCO-SETTLEMENT MONEY."  Petitioner Lowe
faults the Attorney General's caption for suggesting that all the
proceeds, including principal, from the tobacco settlement will be
used to fund low-income health care.  She proposes the following
caption:  "TOBACCO SETTLEMENT PROCEEDS RESTRICTED TO LOW-INCOME
HEALTH CARE TRUST."
We agree with petitioner Patterson that the subject of
the measure is the dedication of the proceeds of the tobacco
settlement to a particular fund and the requirement that earnings
from that fund be used to provide low-income health care.  To
comply substantially with ORS 250.035(2)(a) (1997), the caption
must alert voters to both aspects of the proposed measure.  The
Attorney General's certified caption does not do so.  However,
petitioner Patterson's proposed caption also misses the mark,
because it does not explain that the earnings from the trust fund
will be used to fund health care for low-income persons. 
Petitioner Lowe is correct that, under the proposed measure, with
certain exceptions, only earnings from the proceeds of the
settlement will be used to fund low-income health care.  The
caption should refer to earnings rather than to proceeds in
referring to the money that will be used to provide low-income
health care.
We certify the following caption for the proposed
measure:  DEDICATES TOBACCO-SETTLEMENT PROCEEDS; EARNINGS FUND LOW-INCOME HEALTH CARE. 
We turn to petitioners' challenges to the "yes" vote
result statement and to petitioner Patterson's challenge to the
"no" vote result statement.  ORS 250.035(2)(b) (1997) requires a
"yes" vote result statement that contains a "simple and
understandable statement of not more than 15 words that describes
the result if the state measure is approved."  ORS 250.035(2)(c)
(1997) requires a "no" vote result statement that contains a
"simple and understandable statement of not more than 15 words that
describes the result if the state measure is rejected."  ORS
250.035(3) requires that, "to the extent practical," the wording of
the "yes" and "no" vote statements be parallel.   
Both petitioners argue that the result of the proposed
measure is the creation of a health-care trust fund using tobacco-settlement proceeds, with income from the trust to benefit low-income persons.  They contend that the Attorney General's "yes"
vote result statement does not inform voters of that result. 
According to petitioners, the absence of reference to the trust
fund in the "yes" vote result statement is misleading, because the
statement suggests that the tobacco-settlement principal would be
used directly for providing health care to low-income persons.  The
first mention of a health trust fund appears in the Attorney
General's "no" vote result statement.  What is more, both
petitioners argue, the wording of the "yes" and "no" vote result
statements is not parallel. 
The Attorney General does not dispute that the proposed
measure requires tobacco-settlement moneys to be placed into a
health-care trust fund.  However, he argues that that information
does not need to appear in the "yes" vote result statement, because
it appears in the "no" vote result statement, and voters will be
able to infer from its appearance in the "no" vote result statement
that a health-care trust fund would be created if the measure is
approved.
As noted, the subject of the proposed measure is the
dedication of tobacco-settlement proceeds and the requirement that
earnings from the proceeds be used in a particular manner.  The
result of the proposed measure, as petitioners correctly argue,
would be to create a health-care trust fund, the earnings from
which will provide health care to low-income persons.  To comply
substantially with ORS 250.035(2)(b) (1997), the "yes" vote
statement must state that result.  We disagree with the Attorney
General that it suffices to mention the trust fund for the first
time in the "no" vote result statement, leaving the voters to draw
the inference about creation of the trust fund.  Accordingly, we
modify the Attorney General's "yes" vote result statement as
follows:  RESULT OF "YES" VOTE:  "Yes" vote creates tobacco
settlement trust fund; earnings dedicated to low-income health
care. 
Our modification of the "yes" vote result statement
obviates petitioner Patterson's challenge to the "no" vote result
statement.  As noted, petitioner Lowe does not challenge the "no"
vote result statement.
Regarding the Attorney General's certified summary,
petitioner Patterson suggests a variety of ways in which he thinks
that the summary could be written better, but he fails to
demonstrate that the Attorney General's summary fails to comply
substantially with the requirements of ORS 250.035(2)(d) (1997). 
Petitioner Lowe agrees that the Attorney General's summary complies
with the statutory requirements.
We certify to the Secretary of State the following ballot
title:
DEDICATES TOBACCO-SETTLEMENT PROCEEDS; EARNINGS FUND LOW-INCOME HEALTH CARE
RESULT OF "YES" VOTE:  "Yes" vote creates tobacco
settlement trust fund; earnings dedicated to low-income
health care.


RESULT OF "NO" VOTE:  "No" vote leaves use of
tobacco-settlement proceeds unrestricted, rejects
creation of health trust fund.  
SUMMARY:  Currently, use of proceeds from settlement
with tobacco products manufacturers is unrestricted. 
Measure places entire settlement into trust fund. 
Requires continuous appropriation of all fund earnings,
for medical, dental, other remedial care services for
low-income persons.  Principal may be used for those
purposes if court order or settlement agreement requires
principal to go to federal government, or upon 2/3
approval by legislature when certain economic conditions
indicate presence or likelihood of recession.  Prohibits
appropriations for other purposes, or under other
conditions, absent voters' approval.

Ballot title certified as modified.  This decision shall
become effective in accordance with ORAP 11.30(10).
VAN HOOMISSEN, J., dissenting.
I respectfully dissent.  In my view, the Attorney
General's certified ballot title substantially complies with the
requirements of ORS 250.035 (1997).  ORS 250.085(5).
The unspoken premise on which this court's modification
decision is based is that it does not violate the principle of
separation of powers for this court to rewrite a certified ballot
title.  See Rooney v. Kulongoski (Elections Division #13), 322 Or
15, 55, 902 P2d 1143 (1995) (Unis, J., dissenting) (arguing that
judicial modification of ballot titles offends Article III, section
1, of the Oregon Constitution); Sizemore v. Kulongoski, 322 Or 229,
237, 905 P2d 1146 (1995) (Durham, J., concurring) (same).  The
court should revisit that premise.



1. The 1999 Legislature amended ORS 250.035 (1997).  Or
Laws 1999, ch 793, § 1.  However, section 3 of that 1999
enactment provides, in part:
"(1) The amendments to ORS 250.035 by section 1 of
this 1999 Act do not apply to any ballot title prepared
for:


"(a) Any initiative petition that, if filed with
the Secretary of State with the required number of
signatures of qualified electors, will be submitted to
the people of the general election held on the first
Tuesday after the first Monday in November 2000 * * *."

The present proposed measure is one to which the 1999 act does
not apply.  We therefore apply the pertinent provisions of ORS
250.035 (1997).
Return to previous location.


