FILED: February 4, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN C. BERMAN,
Petitioner,
v.
JOHN R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC
S057885)
En Banc
On petition to
review ballot title filed October 12, 2009; considered and under advisement December
2, 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.
BALMER, J.
The ballot title
is referred to the Attorney General for modification.
BALMER, J.
Petitioner seeks review of the
Attorney General's certified ballot title for Initiative Petition 59 (2010).  See
ORS 250.085(2) (specifying requirements for seeking review of certified
ballot title).  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 59, if enacted,
would change the authority of courts imposing sentences for felony crimes by
making the existing felony sentencing guidelines "advisory only."  The
proposed measure states that it would give those courts "discretion"
to impose any term of incarceration, any fine, and any other penalty, up to the
maximum allowed by law.  It also provides that the measure would not affect any
existing mandatory minimum sentencing statutes.
The Attorney General certified the
following ballot title for Initiative Petition 59:

"Makes
sentencing guidelines (which create presumptive sentence lengths) advisory,
grants discretion to impose maximum sentences
"Result of 'Yes' Vote:  'Yes' vote
makes sentencing guidelines (which create presumptive sentence lengths based on
felony, offender's history) advisory; grants discretion to impose sentences up
to maximum allowed.
"Result of 'No' Vote:  'No' vote
retains sentencing guidelines (which create presumptive sentence lengths based
on particular felony, offender's history, while permitting upward, downward
departures for substantial, compelling reasons).
"Summary:  Current law requires (through
the state sentencing guidelines) felony prison terms of presumptive lengths
based on the particular crime and on the offender's history, while permitting
courts to depart upward or downward for substantial, compelling reasons. 
Current law generally creates 20-year maximum prison terms for Class A
felonies, 10-year maximum terms for Class B felonies, and five-year maximum terms
for Class C felonies, but for certain felonies requires a minimum term
exceeding the maximum that otherwise would apply.  Measure makes sentencing
guidelines advisory; gives courts discretion to impose sentences up to the
maximum allowed by current law; does not affect or restrict current mandatory
minimum prison sentence statutes; measure applies to sentences imposed for
felonies committed on or after January 1, 2011."

Petitioner is an elector who timely
submitted written comments to the Secretary of State concerning the content of
the Attorney General's draft ballot title and who therefore is entitled to seek
review of the resulting certified ballot title in this court.  See ORS
250.085(2) (stating that requirement).  Petitioner challenges the caption, the
"yes" and "no" vote result statements, and the summary.  
Petitioner asserts that the certified
caption, by focusing on the discretion that the measure would give to
sentencing courts to impose the "maximum sentences" allowed by law,
fails to disclose that it also would give those courts discretion to impose the
lowest statutorily permissible sentence.  Petitioner notes -- and the Attorney
General does not disagree -- that, by making the sentencing guidelines advisory
only, the measure would give a sentencing court discretion to impose a greater or
lesser sentence than the presumptive guidelines sentence.  By mentioning
only the discretion to impose maximum sentences, petitioner argues, the
certified caption tells only half the story.
The Attorney General responds that
the reference in the first part of the caption to the fact that the measure
would make the sentencing guidelines advisory adequately informs the reader
that the sentencing court would be able to impose either a greater or a lesser
sentence than the presumptive guidelines sentence.  Additionally, the Attorney
General asserts that the phrase "grants discretion to impose maximum
sentences" should be included because it mirrors a provision in the
proposed measure and, if that phrase did not appear in the measure, "the
measure would permit sentencing courts to impose any sentence at all, without
any limitation." 
We agree with petitioner.  There is
no dispute that, by making the sentencing guidelines advisory only, the measure
would give a sentencing court the discretion to impose a sentence between the
minimum and the maximum allowed by other statutory provisions.  By focusing on
the maximum alone, the certified caption is misleading.  Although, as the
Attorney General points out, the measure itself states that the sentencing
court may impose a sentence "up to the maximum," nothing in the
measure makes any change to any existing statutory maximum or minimum sentencing
provision, other than by making the guidelines advisory only.  Thus, the
measure would permit sentencing courts to impose sentences that are higher or
lower than those in the sentencing guidelines.  Because the caption refers
only to the courts' discretion to "impose maximum sentences," rather
than indicating that courts would be able to impose any sentence permitted by
law, the caption is misleading and must be modified.
Petitioner similarly objects to
wording in the "yes" vote result statement and in the summary.  Unlike
the caption, the "yes" vote result statement and the summary track
the wording of the measure, stating that the measure would give sentencing
courts discretion to impose sentences "up to" the maximum allowed,
rather than stating that the measure would give courts "discretion to
impose maximum sentences."  The "yes" vote result statement and
the summary are nevertheless misleading for the reasons set out above.  They
focus on the court's discretion to impose sentences "up to" the
"maximum," without acknowledging that courts would also be able to
impose sentences down to the minimum allowed by law.  We therefore agree with
petitioner that the "yes" vote result statement and the summary must
be modified.  
Petitioner raises an additional
objection to the "yes" vote result statement and also argues that the
"no" vote result statement should be modified, although petitioner
concedes that the "no" vote result statement is accurate.  We reject
those challenges without discussion.
The ballot title is referred to the
Attorney General for modification.
