
FILED:  January 17, 2002
IN THE SUPREME COURT OF THE STATE OF OREGON
LON T. MABON,
		Petitioner,
	v.
HARDY MYERS,
Attorney General,
State of Oregon,
	Respondent.
ROY PULVERS,
Petitioner,
     v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S48950 (control); S48951)
(Consolidated for Opinion)
	On petitions to review ballot title.
	Submitted on the record December 5, 2001.
	Lon Mabon, Portland, filed the petition for himself.
	Roy Pulvers, Portland, filed the petition for himself.
	Laura S. Anderson, Assistant Attorney General, Salem, filed
the answering memoranda for respondent.  With her on the
memoranda were Hardy Myers, Attorney General, and Michael D.
Reynolds, Solicitor General.
	Before Gillette, Leeson, Riggs, De Muniz, and Balmer,
Justices.*  
	LEESON, J.
	Ballot title referred to the Attorney General for modification.
	*Carson, C.J., and Durham, J., did not participate in the
consideration or decision of this case. 
		LEESON, J.
		These two ballot title review proceedings have been
consolidated for opinion.  They concern the Attorney General's
certified ballot title for a proposed initiative measure that the
Secretary of State has denominated as Initiative Petition 107
(2002).  For the reasons explained below, we refer the ballot
title to the Attorney General for modification.  See ORS
250.085(8) (setting out procedure); Flanagan v. Myers, 332 Or
318, 323-24, 30 P3d 408 (2001) (applying ORS 250.085(8)).
The proposed measure would amend the Oregon
Constitution by adding "as section 11" (1) the following to Article
I:

	"Section 11.  Oath of office of judges.
	"Notwithstanding any other provision of this
constitution every judge of Oregon law, before entering
upon the duties of his office, shall publicly take and
subscribe, and transmit to the secretary of state, the
following oath:
	"'I, _________________________, do solemnly swear (or
affirm) that I will support and defend the national
constitution of the United States of America (A.D.
1789), and the constitution of the Union state of
Oregon (A.D. 1859).  And when discharging the duties of
this office I will give allegiance to no other like
jurisdiction, whether foreign or domestic.  I will
faithfully and impartially, in a manner free of all
bias, discharge the duties of a judge of said state,
according to the best of my ability.  I further swear
(or affirm) that I will honor and maintain the
separation of powers doctrine and I will not use my
official duties to create law from the bench.  As an
interpreter of law I will not substitute my opinion or
preference, or that of any social faction, for the will
of the people, but shall adhere strictly to the intent
of the framers, both of the law and of the
constitution.  Where such intent cannot be discerned, I
will defer to the legislative branch to provide it.  I
will not accept any other office, except judicial
offices, during the term for which I have been elected
or appointed.'"

		The Attorney General certified the following ballot
title for the proposed measure:

"AMENDS CONSTITUTION:  REQUIRES THAT
JUDGES TAKE OATH LIMITING INTERPRETATION
OF LAW BY FOLLOWING FRAMERS' AND
LEGISLATURE'S INTENT
		"RESULT OF 'YES' VOTE:  'Yes' vote requires judges
to take oath limiting interpretation of law by
requiring adherence to framers' intent and deferring to
legislature where intent is unclear.
		"RESULT OF 'NO' VOTE:  'No' vote rejects requiring
judges take oath limiting interpretation of law by
requiring adherence to framers' intent and deferring to
legislature where intent is unclear.
		"SUMMARY:  Amends constitution.  Current law
requires judges to take oath of office to support the
Oregon and federal constitutions, faithfully and
impartially discharge duties according to best of their
ability, and not accept any office except judicial
office during their elective term.  Measure requires
that judges take oath to support and defend 1789
federal constitution and 1859 Oregon constitution; give
allegiance only to Oregon and federal jurisdictions;
'honor and maintain separation of powers doctrine;' set
aside personal views or those of any social faction;
not 'create law from the bench;' uphold 'will of the
people;' adhere strictly to intent of framers of
constitution, statutes, common law; defer to
legislature to provide intent where framers' intent is
unclear.  Measure does not define quoted terms.  Other
provisions."

ORS 250.035(2) sets out the requirements for a ballot
title caption, result statements, and summary for a state
initiative measure. (2)  This court reviews the Attorney General's
ballot title for "substantial compliance with the requirements of
ORS 250.035."  ORS 250.085(5).
		Petitioner Mabon challenges the caption, the result
statements, and the summary of the ballot title.  We have
considered each of his challenges and conclude that none is well
taken.  We turn to petitioner Pulvers's challenges.  
		As with Mabon, Pulvers challenges each aspect of the
ballot title.  We begin with the caption, which Pulvers argues is
deficient in two respects.  First, he contends that the caption
does not advise voters that the proposed measure will "replace or
supercede the existing, constitutional oath for judges with a new
oath."  Second, he contends that the caption "selectively refers
only to judicial interpretation of 'Law'" when the subject matter
of the proposed measure is to place strict limits on judicial
interpretation "both of the law and of the constitution."  
		Regarding Pulvers's first argument, the Attorney
General responds that replacing existing oaths is the purpose of
the proposed measure, not its subject matter and, therefore, it
would be inappropriate to refer to existing oaths in the caption. 
Moreover, he asserts that "the phrase in the caption and summary,
'Amends Constitution,' reasonably informs the voters that the
proposed measure (and hence, the proposed oath) either adds to,
takes away, or changes what already is contained in the
constitution" and that the caption appropriately sets out the
substance of existing oaths.  Regarding Pulvers's second
argument, the Attorney General contends that the word "law" can
be used to refer to all forms of positive law, including
constitutional law.  He argues that the caption therefore
complies with the statutory standard.
		The proposed measure provides that "every judge of
Oregon law * * * shall publicly take and subscribe [to] * * * the
following oath."  The remainder of the proposed measure sets out
the form of oath.  The text of the proposed oath incorporates
some of the wording of existing oaths, see, e.g., Or Const, Art
VII (Amended), § 7 (Supreme Court judges); Or Const, Art VII 
(Original), § 10 (circuit court judges); ORS 1.635 (pro tempore
judges); ORS 1.300(7) (senior judges); ORS 305.455 (Tax Court
judge), but the proposed oath makes several additions:  It adds
the years in which the United States Constitution and the Oregon
Constitution were adopted; it commits judges to "give allegiance
to no other like jurisdiction, whether foreign or domestic"; it
commits judges to "honor and maintain the separation of powers
doctrine" and not to "use [their] official duties to create law
from the bench"; and it commits judges, when interpreting the
law, to "adhere strictly to the intent of the framers, both of
the law and of the constitution" and to "defer to the legislative
branch to provide" such intent "where [it] cannot be discerned."
		The subject matter of the proposed measure is the
creation of a new oath for Oregon judges, the crux of which is to
commit judges to the framers' intent regarding the Oregon and
federal constitutions and to the legislature's intent regarding
statutes.  Pulvers is correct that the Attorney General's caption
does not identify that subject matter reasonably.  The caption
gives no indication that the proposed measure creates a new oath
that replaces or subsumes existing judicial oaths, or that the
new oath commits judges to the framers' intent regarding
constitutional law.  The caption fails to comply substantially
with the statutory requirement that it reasonably identify the
subject matter of the proposed measure, and the Attorney General
must modify it.
		We turn to Pulvers's challenge to the "yes" and "no"
vote result statements.  He argues that those statements are
defective for the same reasons that the caption is defective.  He
also asserts that the "yes" and "no" vote result statements refer
to deference to the "legislature" when the proposed measure
actually refers to deference to the "legislative branch" which,
Pulvers claims, could include the people acting in a legislative
capacity.  The Attorney General concedes that, if Pulvers is
correct that the caption must be modified, then conforming
changes must be made to the "yes" and "no" vote result
statements.  However, the Attorney General argues that Pulvers
did not raise his argument about the word "legislature" in his
comments to the Secretary of State and, therefore, that this
court should not address that argument.
		The Attorney General is correct.  The Attorney General
must modify the "yes" and "no" vote result statements to reflect
the changes that he must make to the caption.
		We turn to Pulvers's contention that the summary fails
to comply with ORS 250.035(2)(d) because it does not summarize
concisely and impartially the proposed measure and its major
effect.  He contends that the Attorney General's summary is
inaccurate and misleading because it states that "[c]urrent law"
requires judges to take an oath when, in his view, it is the
constitution that contains that requirement.  Pulvers also
contends that the Attorney General's summary fails to state the
major effect of the proposed measure which, he asserts, is to
"alter the fundamental constitutional relationship between the
legislative and judicial branches" and to "mandate a fundamental
change in the role of the court in the constitutional system." 
Finally, Pulvers contends that the statement in the summary that
the new oath would require strict judicial adherence to "intent
of framers of * * * common law" is a mistake.  
		The Attorney General acknowledges that the reference to
"common law" in the summary is an error, but he contends that the
summary complies substantially with the statutory standard in all
other respects.
		We conclude that the Attorney General must correct the
defect in the summary that he has acknowledged.  However, we
reject Pulvers's remaining arguments concerning the summary.  He
has not demonstrated that the Attorney General's use of the word
"law" to refer to the source of the oaths that judges currently
must take is inaccurate or misleading.  Moreover, it is open to
debate how the proposed measure, if adopted, would alter the
province of the judiciary in the constitutional system.  It is
not this court's role to decide among arguable effects of a
proposed measure when the meaning of the proposed measure is not
clear.  See Carson v. Myers, 326 Or 248, 253, 951 P2d 700 (1998) 
(not appropriate for court to speculate among arguable "meanings"
of measure).
		For the foregoing reasons, we hold that the Attorney
General must modify the caption, the "yes" and "no" vote result
statements, and the reference to the "common law" in the summary.
		Ballot title referred to the Attorney General for
modification.




1. 	Section 11 of Article I currently enumerates the rights
of the accused in criminal prosecutions.

Return to previous location.



2. 	ORS 250.035(2) provides:

		"The ballot title of any state measure to be
initiated or referred shall consist of:
		"(a) A caption of not more than 15 words that
reasonably identifies the subject matter of the state
measure.  The caption of an initiative or referendum
amendment to the constitution shall begin with the
phrase, 'Amends Constitution,' which shall not be
counted for purposes of the 15-word caption limit;
		"(b) A simple and understandable statement of not
more than 25 words that describes the result if the
state measure is approved.  The statement required by
this paragraph shall include either the phrase, 'I
vote' or 'vote yes,' or a substantially similar phrase,
which may be placed at any point within the statement;
		"(c) A simple and understandable statement of not
more than 25 words that describes the result if the
state measure is rejected.  The statement required by
this paragraph shall not describe existing statutory or
constitutional provisions in a way that would lead an
average elector to believe incorrectly that one of
those provisions would be repealed by approval of the
state measure, if approval would not have that result. 
Any thing or action described both in the statement
required by paragraph (b) of this subsection and in the
statement required by this paragraph shall be described
using the same terms in both statements, to the extent
practical.  Any different terms must be terms that an
average elector would understand to refer to the same
thing or action.  The statement shall include either
the phrase, 'I vote' or 'vote no,' or a substantially
similar phrase, which may be placed at any point within
the statement; and
		"(d) A concise and impartial statement of not more
than 125 words summarizing the state measure and its
major effect."

Return to previous location.

