FILED: April 13, 2006
IN THE SUPREME COURT OF THE STATE OF OREGON
GARY J. STRAUBE
and KICHAE HAN,
Petitioners,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
TERRENCE W. McEVILLY,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S53266 (Control), S53275)
(Cases Consolidated)
En Banc
On petitions to review ballot title.
Submitted on the record March 23, 2006.
James N. Gardner, of Gardner & Gardner, Attorneys, P.C.,
Portland, filed the petition for petitioners Gary J. Straube and
Kichae Han.  With him on the petition was Lynda N. Gardner.
James M. Brown, Salem, filed the petition for petitioner
Terrence W. McEvilly.
Anna M. Joyce, Assistant Attorney General, Salem, filed the
answering memoranda for respondent.  With her on the answering
memoranda were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
GILLETTE, J.
Ballot title certified as modified.
GILLETTE, J.
These consolidated ballot title review proceedings
brought under ORS 250.085(2) concern the Attorney General's
certified ballot title for an initiative petition that the
Secretary of State has denominated as Initiative Petition 143
(2006).  Initiative Petition 143, if adopted, would increase the
taxes paid on tobacco products and put the money derived from
that increase into a number of specified programs.
Petitioners are electors who timely submitted written
comments to the Secretary of State concerning the content of the
Attorney General's draft ballot title and who therefore are
entitled to seek review in this court of the resulting certified
ballot title.  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(2)(a) to (d).  ORS 250.085(5).
We have considered the various challenges to the
Attorney General's modified ballot title that each petitioner
advances.  In our view, only one has merit.  Petitioners Straube
and Han point out that the summary of the modified ballot title
certified by the Attorney General contains a sentence fragment
that inaccurately refers to "increased fees to physicals, health
care providers."  (Emphasis added.)  The Attorney General
acknowledges that the emphasized word is a typographical error: 

"In response to a comment, we altered the summary [in
the Attorney General's draft ballot title] to include
information about increased fees to physicians and
other health care providers.  However, the certified
ballot title summary used the word 'physicals,' rather
than 'physicians.'  As a result of that typographical
error, the Attorney General agrees that the certified
summary does not substantially comply with the
requirements of ORS 250.035.  Accordingly, the Attorney
General respectfully requests that this court refer the
ballot title for modification to allow the error to be
corrected."

We agree with petitioners and the Attorney General that
the use of the word "physicals" results in a summary that does
not substantially comply with the requirements of ORS
250.035(2)(d).  In such circumstances, this court ordinarily
would follow the course suggested by the Attorney General and
refer the ballot title to the Attorney General for modification. 
However, referral to the Attorney General is not the only
dispositional alternative that this court has available to it. 
ORS 250.085(8) provides that,

"[i]f the Supreme Court determines that the title
certified by the Attorney General * * * does not
substantially comply with the requirements of ORS
250.035, the court shall modify the ballot title and
certify the ballot title to the Secretary of State or
refer the ballot title to the Attorney General for
modification."

Thus, this court has the statutory authority to correct an errant
ballot title and to certify the resulting ballot title to the
Secretary of State, should this court, in the exercise of its
discretion, choose to do so.  See Flanagan v. Myers, 332 Or 318,
324-25, 30 P3d 408 (2001) (stating that statute gives court
"discretion" in dispositional selection).
In the recent past, it has not been our practice to
correct errant ballot titles and then to certify the corrected
ballot titles to the Secretary of State.  We think, however, that
this case merits the alternative disposition that the statute
contemplates.  The error here is only typographical; it is not
substantive.  Correcting it does not deprive any party of any
opportunity to argue any theory that the party wished to advance
respecting the requirements of ORS 250.035(2).  Everyone knew
what was intended by the erroneous sentence fragment; no one was
misled.  It follows, we believe, that this court should certify a
corrected ballot title to the Secretary of State.
Based on the foregoing analysis, we certify the
following ballot title for Initiative Measure 143 (2006) to the
Secretary of State:

PROVIDES HEALTH INSURANCE TO ALL UNINSURED CHILDREN UNDER 19;
INCREASES TOBACCO TAXES; FUNDS OTHER PROGRAMS
     RESULT OF "YES" VOTE: "Yes" vote provides health
insurance for all uninsured children under 19, expands
coverage for adults, partially funded by increasing
tobacco taxes; funds tobacco, health programs.
     RESULT OF "NO" VOTE: "No" vote retains current
health insurance programs, providing health care to
particular low-income and other qualified children,
adults; maintains tobacco taxes at current levels.
     SUMMARY: Current Oregon law provides health
insurance only to particular low-income or other
eligible children.  Measure provides health insurance
for all uninsured children under 19 through three
insurance programs, expands health insurance for
uninsured adults.  Programs funded in part by imposing
tax increase on cigarette consumers.  Revenue from
increased tax goes to multiple programs, including new
Oregon Kids Program, Oregon Health Plan, cigarette tax
enforcement, Tobacco Use Reduction Account, increased
fees to physicians, health care providers.  Defines
"smokeless tobacco"; imposes tax increase on tobacco
products other than "smokeless tobacco."  After
expenses, revenue from tobacco products tax goes into
General Fund, partially dedicated to Oregon Health
Plan, Tobacco Use Reduction Account, new Oregon Kids
Program.  Requires application to federal government
for federal financial participation.  Other provisions.

Ballot title certified as modified.
