
FILED:  May 6, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
MICHAEL D. CREW,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent,
LORI GARCIA,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S51148, S51150)
(Consolidated for Review and Opinion))
En Banc
On petition for reconsideration of modified ballot title.*
Submitted on the record April 16, 2004.
No appearance by petitioner Crew.
Steven C. Berman, of Stoll Stoll Berne Lokting & Schlachter
P.C., Portland, filed the petition for reconsideration for
petitioner Garcia.
No appearance by respondent.
GILLETTE, J.
Petition for reconsideration allowed.  Ballot title referred
to Attorney General for further consideration.
* 336 Or 535, 87 P3d 656 (2004).
GILLETTE, J.
This ballot title review proceeding is before us for a
second time.  In its first iteration, Crew/Garcia v. Myers, 336
Or 535, 87 P3d 656 (2004), we held that the Attorney General's
certified ballot title for a proposed initiative measure,
denominated by the Secretary of State as Initiative Petition 128
(2004), failed in several respects to comply substantially with
the requirements of ORS 250.035(2).  Pursuant to ORS 250.085(8),
we referred the ballot title to the Attorney General for
modification.
Our original decision in this case issued on April 2,
2004.  By statute, the Attorney General had five business days
thereafter in which to file with this court a modified ballot
title.  ORS 250.085(9).  He did so on April 9, 2004, which was
the fifth business day after our decision issued.  Under ORS
250.085(9), "any * * * part[y] to the ballot title review
proceeding" may file objections to the Attorney General's
modified ballot title within five business days after the
Attorney General files the modified ballot title.  Petitioner
Garcia filed such objections on April 16, 2004, which was the
fifth business day after the Attorney General filed his modified
ballot title.  We have considered the contentions that petitioner
Garcia advances in her petition to review the Attorney General's
modified ballot title.  None is well taken.
That is not the only issue before us, however. 
Petitioner Garcia also has sought reconsideration of this court's
original decision in this case, arguing that certain of the
contentions of petitioner Crew that we there addressed had not,
in fact, been properly preserved (1).  Specifically, she
asserts that, in his written comments made to the Secretary of
State during the comment period provided by ORS 250.067,
petitioner Crew failed to raise two issues on which we required
modification of the Attorney General's ballot title -- the
"negotiation" and "scope of license" issues.  It follows from
that premise, petitioner Garcia asserts, that this court erred in
referring those issues to the Attorney General to be addressed in
a modified ballot title. (2)  We turn to that issue.
ORS 250.085(6) provides:

"When reviewing a title prepared by the Attorney
General, the Supreme Court shall not consider arguments
concerning the ballot title not presented in writing to
the Secretary of State unless the court determines that
the argument concerns language added to or removed from
the draft title after expiration of the comment period
provided in ORS 250.067." 

(Emphasis added.)  As petitioner Garcia's citation to precedent
shows, this court's ordinary practice has been to treat the
foregoing emphasized wording as a prohibition.  See, e.g., Nelson
v. Myers, 330 Or 92, 97, 996 P2d 975 (2000) ("[P]etitioner did
not present that argument to the Secretary of State. 
Accordingly, we may not consider it."); Sizemore v. Myers, 326 Or
220, 225, 953 P2d 360 (1997) (to same effect).  Thus, if
petitioner Garcia's premise is correct, this court erred in
referring the issues in question to the Attorney General for
consideration, and we should say so.
Our examination of the record leads us to conclude that
petitioner Garcia is half right.  In his written submissions to
the Secretary of State, petitioner Crew did not raise, even
indirectly, the "scope of license" issue that we discussed so
prominently in our original opinion in this case, see
Crew/Garcia, 336 Or 540-41, 542, 543 (discussing issue).  Neither
did the Attorney General create that issue for the first time
through changes that he made to his draft ballot title.  It
follows that we erred in addressing it. (3)
On the other hand, petitioner Crew raised the
"negotiation" issue about which petitioner Garcia complains in
various forms during the comment stage.  It is true that
petitioner Crew's views on that issue underwent serious
modification between the comment period and the petition for
review, but we think that the issue properly was before us.  We
did not err in addressing it.
The question now arises:  What is the remedy?  We
conclude that our error makes it necessary once again to refer
the matter to the Attorney General for such modification as he
may deem appropriate.  We say, "as he may deem appropriate,"
because the case now is in a peculiar posture.  Once this court
refers a ballot title to the Attorney General, he is free to
modify it in accordance with this court's decision and any
pertinent statutory requirements.  Ordinarily, the Attorney
General limits such modifications to correcting the defects that
this court's referral decision identifies, but the modifications
need not be so limited.  Here, for example, although we erred in
referring the certified ballot title back to the Attorney General
and requiring a modification on the issue of scope of license,
the fact remains that the Attorney General is entitled to address
that topic in the modified ballot title if he chooses.  That is,
if he wishes to do so, the Attorney General need not further
modify his ballot title with respect to the subject of scope of
license.  He also may decide, alternatively, that other
information about the proposed measure deserves mention in the
modified ballot title in lieu of the scope of license issue.  The
question is for him to decide.
Petition for reconsideration allowed.  Ballot title
referred to the Attorney General for further consideration.


1. Petitioner Garcia filed her petition for
reconsideration of our original decision at the same time that
she filed her challenges to the Attorney General's modified
ballot title, i.e., on the tenth business day after we issued our
original decision.  The petition for reconsideration was timely. 
See ORAP 11.30(11)(b) (requiring such petitions to be filed
"within 10 business days" after this court's decision).
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2. Petitioner Garcia's petition appears to recognize
implicitly that, whether or not this court erred in referring the
"negotiation" and "scope of license" issues to the Attorney
General for modification of the Attorney General's certified
ballot title, referral itself was proper because there were other
respects in which the Attorney General's certified ballot title
failed to comply substantially with the requirements of ORS
250.035(2).  See, e.g., Crew/Garcia, 336 Or at 541-42, 543, 544
(identifying other deficiencies in Attorney General's certified
ballot title).  Petitioner Garcia's objection is simply that the
scope of our criticism of the ballot title reached into issues
that we should not have addressed.
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3. We note in passing that, although the Attorney General
ordinarily raises issues concerning whether an argument advanced
in connection with a certified ballot title review was raised in
written comments to the Secretary of State, the Attorney General
did not raise such issues in this case.  We do not by this
observation suggest that the Attorney General is somehow at fault
here: Whatever any party may assert or fail to assert, it is this
court's obligation to assure itself in each case that it in fact
has the authority to proceed.  If the Attorney General missed
this point in this case, so did we.
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