FILED: October 19, 2006
IN THE SUPREME COURT OF THE STATE OF OREGON
ARTHUR TOWERS,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S53873)
On petition to review ballot title.
Submitted on the record September 18, 2006.
Steven C. Berman, of Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the
petition and the reply for petitioner.
Steven R. Powers, Assistant Attorney General, Salem, filed the answering memorandum
for respondent.  With him on the answering memorandum were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Before De Muniz, Chief Justice, and Carson, Gillette, Durham, Balmer and Kistler, Justices.* 
CARSON, J.
Ballot title referred to Attorney General for modification. 
*Riggs, J., retired September 30, 2006, and did not
participate in the consideration or decision of this case. 
Walters, J., did not participate in the consideration or decision
of this case.  
CARSON, J.
This ballot title review proceeding, brought under ORS
250.085(2), concerns the Attorney General's certified ballot
title for a proposed initiative measure that the Secretary of
State has denominated as Initiative Petition 28 (2008). 
Initiative Petition 28 proposes an addition to the Oregon Revised
Statutes which, if adopted, would restrict the time period within
which certain procedural challenges to initiated measures could
be brought.  Petitioner is an elector who timely submitted
written comments to the Secretary of State concerning the
Attorney General's draft ballot title and, therefore, is entitled
to seek review of the resulting certified ballot title in this
court.  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.  ORS 250.085(5).  For the reasons that follow, we
conclude that it does not, and we refer the ballot title to the
Attorney General for modification.
The proposed measure is set out in its entirety in the
Appendix, and we briefly describe its substantive provisions
here.  If adopted, the proposed measure would require that all
legal challenges to initiative measures asserting that a measure
violates a "procedural requirement" of the Oregon Constitution be
brought within "60 days after the date the Secretary of State
approve[s] the petition for circulation."  "Procedural"
challenges not raised within that time period would be
prohibited.  The proposed measure further provides that 

"'procedural requirements' shall include but not be
limited to the single subject requirement, the separate
vote requirement, the full text requirement, and the
requirement that only the State Legislative Assembly
may propose a revision of the Oregon
Constitution." (1)

Additionally, the proposed measure would require that those
procedural challenges be filed directly with this court and would
establish a 90-day time period within which this court would be
required to render its decision.  If that time period passes
without a decision respecting the procedural challenges raised,
then those challenges would be deemed denied.  Finally, the
proposed measure would limit the effect that a procedural
challenge could have.  Specifically, the proposed measure
provides that

"[a] challenge regarding the sufficiency or
accuracy of * * * a measure's ballot title, ballot
description, or official explanatory statement shall
not be grounds for: (i) voiding signatures collected on
the initiative petition, (ii) delaying or not
canvassing the votes cast for or against the measure,
or (iii) nullifying the passage of the measure."   

The Attorney General certified the following ballot
title for Initiative Petition 28:

"ELIMINATES POST-ELECTION CHALLENGES TO INITIATIVE'S
LAWFUL PLACEMENT ON BALLOT; PROVIDES DIRECT, EXPEDITED
SUPREME COURT REVIEW
"RESULT OF 'YES' VOTE: 'Yes' vote eliminates all post-election legal challenges to an initiative's lawful
placement on ballot; provides direct, expedited Supreme
Court review; sets timelines for pre-election
challenges.
"RESULT OF 'NO' VOTE: 'No' vote retains current law
allowing legal challenges both before and after an
election on whether an initiative meets certain
requirements for placement on ballot.
"SUMMARY:  Under current law, lawsuits claiming that
ballot measures fail to meet certain legal requirements
in the Oregon Constitution for placement on ballot must
be filed in circuit court within 60 days of time that
Secretary of State approves the measure for
circulation; challenges may also be filed after a
measure passes under certain circumstances.  Measure
requires specified challenges to be filed within 60
days of date that Secretary of State approves the
measure for circulation; eliminates specified post-election challenges.  Measure requires legal challenges
be filed directly with Oregon Supreme Court; challenge
is deemed denied if not decided within 90 days of
filing.  Further judicial review is not allowed. 
Filing of such challenge would not delay approval of
challenged measure to circulate for signatures.  Other
provisions."

Petitioner challenges the caption and the "yes" vote
result statement.  Petitioner's primary argument is that the
phrase "lawful placement on ballot," which appears in both the
caption and the "yes" vote result statement, is misleading. 
Petitioner also asserts that the caption and "yes" vote result
statement exceed the applicable, statutorily established word
limits because the Attorney General counted "hyphenated phrases"
as one word, contrary to "the Attorney General's own internal
policies and standards."  For the reasons that follow, we agree
with petitioner's first argument and decline to consider his
second argument.        
We begin by explaining our reasons for declining to
consider petitioner's second argument.  As noted, petitioner
claims that the caption and "yes" vote result statement exceed
their statutory word limits because "hyphenated phrases" used in
those parts of the ballot title should be counted as two separate
words.  Assuming, but in no way deciding, that "hyphenated
phrases" should be counted as two words, both the draft and
certified ballot titles would fail to meet their statutory word
limits.  However, petitioner's written comments to the Secretary
of State concerning the Attorney General's draft ballot title
failed to raise any word count objection to the caption and "yes"
vote result statement; petitioner raised that argument for the
first time in his petition for review.  By failing to raise his
word count objection in his written comments to the Secretary of
State, petitioner did not preserve that argument, and we decline
to consider it. (2) See ORS 250.085(6) (failure to raise claim
in written comments to Secretary of State generally precludes
this court's consideration of it).            
We turn now to petitioner's primary argument, that the
caption and "yes" vote result statement are misleading.  ORS
250.035(2)(a) requires that the caption of a ballot title contain
a statement of not more than 15 words "that reasonably identifies
the subject matter of the state measure."  The caption is the
"cornerstone for the other portions of the ballot title" and must
identify the proposed measure's subject matter in terms that will
not "confuse or mislead potential petition signers and voters." 
Mabon v. Myers, 332 Or 633, 637, 33 P3d 988 (2001). 
Additionally, the caption must not "understate or overstate the
scope of the legal changes that the proposed measure would
enact."  Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004).  
As set out above, the caption provides:

"ELIMINATES POST-ELECTION CHALLENGES TO INITIATIVE'S
LAWFUL PLACEMENT ON BALLOT; PROVIDES DIRECT, EXPEDITED
SUPREME COURT REVIEW"

Petitioner argues that the phrase "lawful placement on ballot" is
misleading because, "under the [proposed measure], no post-election challenge could be brought for an initiative that is
either properly (meaning legally) or improperly (meaning
illegally) placed on the ballot."  We agree.  The proposed
measure purports to prohibit a certain class of "procedural"
challenges that are not filed within "60 days after the date the
Secretary of State approve[s] the petition for circulation." 
Thus, the practical effect of the proposed measure would be to
prohibit any of those kinds of challenges from being brought
after an election, whether or not the initiative being challenged
was "lawfully" or "unlawfully" placed on the ballot.  Under the
proposed measure, whether a challenge is prohibited or not
depends upon the type of claim raised in the challenge and its
timing.  Addition of the phrase "lawful placement on ballot"
therefore is inaccurate in that it suggests a distinction that
does not exist and could "confuse or mislead potential petition
signers and voters."  Mabon, 332 Or at 637.  It follows that the
caption does not "reasonably identif[y] the subject matter" of
the proposed measure as required under ORS 250.035(2)(a).
ORS 250.035(2)(b) requires that a "yes" vote result
statement describe, in "simple and understandable" terms, the
"result" if the measure is approved.  The Attorney General's
"yes" vote result statement, like the Attorney General's caption,
uses the phrase "lawful placement on ballot" and therefore
suffers from the same defect that we identified respecting the
caption.  Consequently, the "yes" vote result statement does not
describe accurately the "result" if the proposed measure is
adopted and fails to meet the requirements of ORS 250.035(2)(b).  
In conclusion, we hold that the caption and the "yes"
vote result statement of the Attorney General's certified ballot
title do not substantially comply with the requirements set out
in ORS 250.035(2)(a) and (b).  The ballot title is referred to
the Attorney General for modification.  See ORS 250.085(8)
(authorizing that disposition).
Ballot title referred to Attorney General for
modification.  

APPENDIX
Be It Enacted by the People of the State of Oregon:
The following section shall be added to and made part
of the Oregon Revised Statutes:
Section 1.  Timing of procedural challenges to
initiatives.  It is the purpose of this 2008 Act to
insure that legal challenges, which might nullify the
legitimate petition signatures or votes of Oregon
voters, not be filed or decided after the fact, but be
brought only at the beginning of the process.
(a) A lawsuit or other legal challenge claiming that an
initiative petition or ballot measure violates any of
the procedural requirements of the Oregon Constitution
may not be filed later than 60 days after the date the
Secretary of State approved the petition for
circulation.
(b) For purposes of this section, "procedural requirements"
shall include but not be limited to the single subject
requirement, the separate vote requirement, the full
text requirement, and the requirement that only the
State Legislative Assembly may propose a revision of
the Oregon Constitution.
(c) A lawsuit or other legal challenge subject to this
section shall be filed directly with the Oregon Supreme
Court and decided expeditiously so as to minimize any
wasted signature collection efforts.  However, the
filing of a legal challenge under this section shall
not delay approval of the petition for circulation.
(d) If 90 days after the filing of a legal challenge under
this section, the Court has not decided that an
initiative petition violates one or more of the
procedural requirements of the Oregon Constitution, the
initiative petition shall be deemed to have complied
with those requirements and no further review shall be
made.
(e) A challenge regarding the sufficiency or accuracy of
all or part of a measure's ballot title, ballot
description, or official explanatory statement shall
not be grounds for:
(i) voiding signatures collected on the initiative
petition,
(ii)delaying or not canvassing the votes cast for or
against the measure, or
(iii) nullifying the passage of the measure.
(f) This 2008 Act supersedes any pre-existing statute or
rule conflicting herewith.  If any phrase, clause or
part of this Act is invalidated by a court of competent
jurisdiction, the remaining phrases, clauses and parts
shall remain in full force and effect.


1. Those "procedural requirements" can be found in the
following provisions of the Oregon Constitution:  Article IV,
section 1(2)(d) (single-subject requirement and full-text
requirement), Article XVII, section 1 (separate-vote
requirement), and Article XVII, section 2(1) (only Legislative
Assembly may propose revision of Oregon Constitution).
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2. Upon referral, the Attorney General, nevertheless, may
choose to consider petitioner's concern.  See Carley/Towers v.
Myers, 340 Or 222, 230 n 4, 132 P3d 651 (2006) (suggesting same).

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