FILED: December 31, 2009
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN C. BERMAN,
Petitioner,
v.
JOHN R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057801)
En Banc
On petition to review ballot title filed
September 21, 2009; under advisement November 17, 2009.
Aruna A. Masih, Bennett, Hartman, Morris &
Kaplan, LLP, Portland, filed the petition and reply memorandum for petitioner.
Rolf C. Moan, Assistant Attorney General, Salem,
filed the answering memorandum for respondent.  With him on the memorandum were
John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
KISTLER, J.
The ballot title is referred to the Attorney
General for modification.
KISTLER, J.
Petitioner seeks
review of the Attorney General's certified ballot title for Initiative Petition
53 (2010).  See ORS 250.085(2) (specifying the requirements for seeking
review of certified ballot titles).  This court reviews the certified ballot
title to determine whether it substantially complies with ORS 250.035(2).  See
ORS 250.085(5) (stating standard of review).  For the reasons explained
below, we refer the ballot title to the Attorney General for modification.
Initiative Petition
53, if enacted, would change the criminal law in six respects.(1)  First, it would require
an inmate incarcerated for committing a felony to serve at least 80 percent of
his or her sentence,(2)
but it would not affect mandatory minimum sentences.  Second, as a general
rule, it would give trial courts discretion to require that sentences be served
consecutively or concurrently.  Third, it would make sentencing guidelines
advisory and give trial courts discretion to impose any punishment up to the
statutory maximum.  Fourth, it would require trial courts to report to the
State Court Administrator certain sentencing information for each felony
sentence, and it would direct the State Court Administrator to compile that
information "as to each judge imposing sentence."  Fifth, it would
permit trial courts to require, as part of an inmate's sentence, that the
Department of Corrections provide appropriate drug treatment services.  Sixth,
it would shift, from the counties to the state, the presentencing and
post-sentencing cost of incarcerating certain felons.
The Attorney General
certified the following ballot title for Initiative Petition 53:

"Changes
laws governing felony sentencing, service of felony sentences, consecutive
sentencing; increases state corrections responsibilities
"Result of 'Yes'
Vote:  'Yes' vote makes sentencing guidelines advisory; requires
incarceration for 80% of felony sentence; increases state corrections
responsibilities; requires compiling sentencing records; presumes consecutive
sentencing.
"Result of 'No' Vote: 
'No' vote retains: sentencing guidelines; mandatory minimum terms for certain
felonies; county custody for some felons' incarceration; not requiring
compiling sentencing records; concurrent sentencing presumption.
"Summary:  Current
law: creates (through sentencing guidelines) felony prison terms of presumptive
lengths based on particular crime and offender's history, while permitting
courts to depart for substantial, compelling reasons; requires minimum terms
for certain felonies, prohibits any release during minimum; generally requires
felons to serve at least 70% of imposed prison term; makes sentence concurrent
to others unless judgment says otherwise; requires state custody for felons
imprisoned over a year, otherwise generally requires county custody. Proposed
measure: makes sentencing guidelines advisory; retains existing statutory
minimums; requires incarceration for 80% of any felony sentence before release;
makes felony sentence consecutive to others unless judgment says otherwise;
requires state to provide or fund all felony incarcerations; requires compiling
information about each judge's felony sentencing. Other provisions."

Petitioner raises
multiple challenges to the ballot title.  We discuss his challenges to the caption,
the "yes" vote result statement, and the summary.(3)
ORS 250.035(2)(a) requires the Attorney General to draft a 15-word
caption that "reasonably identifies the subject matter of the state
measure."  Petitioner
argues that the caption is underinclusive and thus inaccurate because it does
not state that the measure would shift, from the counties to the state, the
presentencing cost of incarcerating persons who are later convicted of
felonies.(4)
The
caption states that the measure "increases state
corrections responsibilities." 
That description -- specifically, the use of the word
"responsibilities" -- is broad enough to include the increased financial
responsibility that the measure, if enacted, would shift to the state.  The
measure is thus neither underinclusive nor inaccurate.  Petitioner's objection,
as we understand it, turns instead on a lack of specificity; he objects to the
caption's failure to identify the specific responsibility -- financial
responsibility -- that the measure would shift from the counties to the state. 
However, given all that the measure encompasses and the 15-word limit on
captions, we cannot say that the caption does not substantially comply with the
statutory goal of identifying the measure's subject matter.
Petitioner
also challenges the "yes" vote result statement.  ORS 250.035(2)(b) directs the Attorney General to draft, in 25 words
or less, a "simple and understandable statement * * * that describes the
result if the state measure is approved."  Petitioner challenges the "yes" vote result
statement for the same reason that he challenges the caption.  He argues that
the statement is deficient because it does not specifically mention that the
state would be responsible for a greater share of the cost of incarcerating
felons.(5) 
We reach a different conclusion regarding the "yes" vote result
statement than we reached regarding the caption.  The Attorney General has more
words at his disposal to describe the result of the measure if it is approved. 
ORS 250.035(2)(a).  And the court has explained that the statutory obligation
to describe the result of the measure means "notify[ing]
petition signers and voters of the result or results of enactment that would
have the greatest importance to the people of Oregon."  Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004).  We agree with petitioner that
the increased financial
responsibility that the state would bear as a result of the measure is an
important result that the "yes" vote result statement can and should
identify.(6)
Finally, petitioner challenges
the summary.  ORS 250.035(2)(d) requires the Attorney General to
summarize in 125 words "the state measure and its major effect." 
Petitioner argues that the summary's description of the current law (the
reference to felons serving 70 percent of an imposed prison term) and its
description of the proposed law (the reference to felons serving 80 percent of
a sentence) are incomplete and thus inaccurate.  Petitioner argues that both
parts of the summary do not make it clear that the measure would not affect
mandatory minimum sentences.  The Attorney General responds that both aspects
of the summary are accurate.
We agree with the Attorney
General that the summary accurately describes the current law regarding
mandatory minimum sentences.  The summary correctly states that the current law
"requires minimum terms for certain felonies, prohibits any release during
minimum."  We agree, however, with petitioner that the summary does not
accurately describe the effect that the measure, if enacted, would have on
mandatory minimum sentences.  To be sure, the summary states that the measure
would "retai[n] existing statutory minimums."  However, the next
phrase in the summary states that the measure would "requir[e]
incarceration for 80% of any felony sentence before release." 
(Emphasis added.)  The summary does not say that the measure would continue to
prohibit the early release of inmates who are serving a mandatory minimum
sentence, and it therefore implies inaccurately that the measure, if passed,
could result in the early release of an inmate who is serving a mandatory
minimum sentence, such as a Measure 11 sentence.  On referral, the Attorney
General should modify the summary to identify that major effect.
The ballot title is
referred to the Attorney General for modification.

APPENDIX
Section 1.  In order to improve criminal justice, to protect
society, and to hold criminals more accountable for the harm they do to
victims, the People hereby enact the following statute as the Oregon Sentencing
Reform Act.
Section 2.  a.  Notwithstanding any other provision of law,
no inmate who is incarcerated as a result of a felony conviction shall receive
any reduction in sentence, release from custody, conditional release from
custody, or any other form of early release, where such action will cause such
inmate to serve any less than 80% of the original term of incarceration imposed
by the sentencing court.
b.  This section does not in any fashion allow reduction of
any mandatory minimum prison term, by any amount; any inmate must always serve
100% of any mandatory minimum term of imprisonment.
Section 3.  a.  A sentence imposed by the court may be made
concurrent or consecutive to any other sentence that has been previously
imposed or is simultaneously imposed upon the same defendant.  A sentence is a
consecutive term unless the judgment expressly provides for concurrent
sentences.
b.  When a defendant is sentenced for a crime committed
while the defendant was incarcerated after sentencing for the commission of a
previous crime, the court shall provide that the sentence for the new crime be
consecutive to the sentence for the previous crime.
Section 4.  ORS 137.123 is repealed.
Section 5.  a.  When sentencing a defendant for a felony
crime, the court has discretion to impose any term of incarceration, any fine,
and any other penalty, up to the maximum terms, fines, and penalties allowed by
law, including ORS 161.605 and 161.625.
b.  Notwithstanding subsection (a) of this Section,
Sentencing Guidelines, as enacted in Chapter 790, Oregon Laws 1989, and as
amended and supplemented thereafter, and the rules adopted thereunder, are
advisory only, and do not impose any restriction on the actual authority of the
court to impose sentence.
Section 6.  Throughout most of Oregon's history, the state
was responsible for incarcerating felony criminals, and each county was
responsible for incarcerating misdemeanor criminals.  County jails were for
misdemeanants, and state prisons were for felons.  In recent years, the state
has forced counties to incarcerate many convicted felons, imposing significant
costs on the counties.  Sections 6, 7, 8, and 9 of this Act are enacted in
order to correct this abuse of state power.
Section 7.  The state shall fully reimburse each county, on
a timely basis, for the county's actual cost of presentencing incarceration of
any person convicted of a felony.
Section 8.  After sentencing for a felony conviction, the
term of incarceration must be served in facilities provided or funded by the
Oregon Department of Corrections.  The department may rent jail space from any
county, as needed, to hold persons convicted of felonies.  The department and
the county shall negotiate the rent under this section in an amount sufficient
to reimburse the county for the actual costs of incarceration.
Section 9.  Sections 6, 7, and 8 of this Act apply to jail
or prison time served by felons on or after July 1, 2011.
Section 10.  In order to let the public know the sentences
being imposed on criminals by each judge, so the public can determine whether
each judge is fairly applying the law, the People hereby enact Sections, 10,
11, 12, and 13 of this Act.
Section 11.  Each court shall report to the State Court
Administrator the following information, if available, regarding each order
imposing sentence for any felony crime:
(1)  The defendant's criminal record;
(2)  The crimes for which sentence was imposed;
(3)  The sentence imposed.
Section 12.  The Administrator shall compile the information
reported under Section 11 of this Act as to each judge imposing sentence.  The
Administrator shall maintain the records compiled as to each judge and make the
records available for public inspection and copying.
Section 13.  Sections 10, 11, and 12 or this Act apply to
any sentence imposed on or after July 1, 2011.
Section 14.  This Act does not, in any fashion, limit or
otherwise restrict mandatory minimum prison sentence statutes, which shall
remain in effect.
Section 15.  a.  When a defendant is sentenced for any
felony crime, the sentence imposed by the court may include a requirement that
the Department of Corrections shall provide appropriate drug treatment
services, where the sentencing court finds:
i.)        The defendant is drug addicted;
ii.)       The
defendant is at a high or medium risk of reoffending without treatment;
and
iii.)      The defendant has moderate to severe
treatment needs.
b.  Nothing in this Section creates any claim, right of
action, or civil liability.  This Section only requires the Department of
Corrections to carry out the order of the sentencing court.  The Department has
the discretion to determine what drug treatment services are appropriate for
the defendant.
c.  This Section applies to sentences imposed on or after
July 1, 2011.
Section 16.  This Act is effective January 1, 2011, and
applies to any sentence imposed for any act committed on or after January 1,
2011, except as to later operative dates, as provided in Sections 9, 13, and 15
of this Act.

1. A
copy of the initiative petition is attached as an appendix to this opinion.
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2. Current
law provides that felons sentenced under the sentencing guidelines are eligible
for up to a 30 percent reduction in their sentences.  Or Laws 2009, ch 660, § 18(7)(b).
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3. Petitioner
also challenges the "no" vote result statement.  We conclude, without
further discussion, that that challenge is not well taken.
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4. Section
6 of the proposed measure assumes that counties currently bear both the pre-
and the post-sentencing cost of incarcerating certain felons and would shift
those costs to the state.  Petitioner, however, focuses his objection solely on
the caption's failure to mention shifting the presentencing costs to the state.
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5. The
Attorney General argues that petitioner failed to raise this objection to the
"yes" vote result statement before the Secretary of State and cannot
raise it for the first time before this court.  Petitioner, however,
incorporated by reference the objections that he had raised to the caption,
which included this objection.
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6. Petitioner
argues that the "yes" vote result statement also is deficient because
it does not say that the requirement to serve 80 percent of a sentence does not
affect mandatory minimum sentences.  Petitioner, however, did not raise that
objection to the "yes" vote result statement before the Secretary of
State and cannot raise it here.  We are, however, referring the ballot title to
the Attorney General for modification on other grounds, and the Attorney
General is free to modify that aspect of the "yes" vote result
statement on referral if he considers it appropriate to do so.
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