
FILED:  April 20, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
FRANK EISENZIMMER,
Petitioner,
v.
HARDY MYERS,Attorney General, State of Oregon,
Respondent.
(SC S47337)
En Banc
On petition to review ballot title. 
Argued and submitted April 5, 2000.
Paul R. Rundle, of Kent, Conley & Rundle, P.C., Portland,
argued the cause and filed the petition for petitioner.
Rolf C. Moan, Assistant Attorney General, Salem, argued the
cause and filed the answering memorandum for respondent.  With
him on the memorandum were Hardy Myers, Attorney General, and
Michael D. Reynolds, Solicitor General.
PER CURIAM
Ballot title certified.  This decision shall become
effective in accordance with ORAP 11.30(10).
Riggs, J., specially concurred and filed an opinion.
PER CURIAM>
This is a ballot title review proceeding brought under
ORS 250.085(2).  Petitioner is an elector who timely submitted
written comments concerning the content of the draft ballot title
submitted to the Secretary of State and who therefore is entitled
to seek review of the ballot title certified by the Attorney
General.  See ORS 250.085(2) (stating that requirement).
We have considered petitioner's arguments concerning
the ballot title certified by the Attorney General.  We conclude
that petitioner has not shown that the Attorney General's
certified ballot title fails to comply substantially with the
standards for such ballot titles set out in ORS 250.035(2)(a) to
(d) (1997). (1) See ORS 250.085(5) (setting standard). 
Accordingly, we certify to the Secretary of State the following
ballot title:
AMENDS CONSTITUTION:  MODIFIES TERM LIMITS FORHOUSE, SENATE;  RETAINS TOTAL LIFETIME LIMIT 
RESULT OF "YES" VOTE:  "Yes" vote modifies
specific term limits for state House, Senate; retains
twelve-year lifetime limit. 


RESULT OF "NO" VOTE:  "No" vote retains: six-year
(House), eight-year (Senate) term limits; twelve-year
lifetime limit.
SUMMARY:  Amends Constitution.  Current
legislative term limits are six years for state
representatives, eight years for senators, twelve years
total in Legislative Assembly.  Measure allows twelve
years in House or Senate, or twelve years combined
service.  Eliminates counting service filling vacant
statewide, legislative office as full term; instead,
vacancy service counts toward lifetime limit. 
Prohibits appointment, election to vacant office if
serving term's remainder would violate limits.  Covers
service years beginning on first day of next full
office term or vacancy occurring after December 3,
1992.

Ballot title certified.  This decision shall become
effective in accordance with ORAP 11.30(10).
RIGGS, J., concurring.
I join in the court's disposition in this case.  I
write separately to point to a concern that is endemic to all
cases of this kind.
As I indicated in my concurring opinion in Nelson v.
Myers, 330 Or 92, 100, ___ P2d ___ (2000) (Riggs, J.,
concurring), I harbor reservations concerning the propriety and
constitutionality of this court's role in the review and
modification of ballot titles under ORS 250.085(5). (2)  On further
reflection, I conclude that, although review is within the bounds
of Article III, section 1, of the Oregon Constitution, (3) modifying
a ballot title is not. 
An extended discussion of the reasons for my view is
unnecessary because, for the most part, Justice Durham's
concurring opinion in Sizemore v. Kulongoski, 322 Or 229, 237,
905 P2d 1146 (1995) (Durham, J., concurring), explains
sufficiently my own view of the separation of powers problem that
this court's role in initiative petition cases presents. 
Nevertheless, a brief supplemental discussion of this issue is in
order.
It is clear that the legislature may not pass a statute
that requires this court to draft a ballot title, any more than
it could direct this court to pave Oregon's roads, run Oregon's
prisons, or prescribe administrative rules for operating the
state lottery, because this court's performance of those tasks
would violate Article III, section 1.  It follows ineluctably, I
believe, that ORS 250.085(5), to the extent that it requires this
court to modify a ballot title, offends Article III, section 1: 
The impermissibility of imposing the greater duty -- drafting --
subsumes the impermissibility of imposing the lesser duty --
modifying.
The principle of separation of powers prohibits this
court from engaging in non-judicial functions.  Modifying a
ballot title is just such a non-judicial function.
Accordingly, I concur with the majority's opinion,
because it involves only an appropriate judicial function -- a
determination that the ballot title certified by the Attorney
General complies with applicable legal standards.



1. The 1999 Legislature amended ORS 250.035 (1997).  Or
Laws 1999, ch 793, § 1.  However, section 3 of that 1999
enactment provides, in part:
"(1) The amendments to ORS 250.035 by section 1 of
this 1999 Act do not apply to any ballot title prepared
for:


"(a) Any initiative petition that, if filed with
the Secretary of State with the required number of
signatures of qualified electors, will be submitted to
the people of the general election held on the first
Tuesday after the first Monday in November 2000 * * *."

The present proposed measure is one of those to which the 1999
act does not apply.  We therefore apply the pertinent provisions
of ORS 250.035 (1997).

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2. ORS 250.085(5) provides:
"The court shall review the title for substantial
compliance with the requirements of ORS 250.035, and
shall certify a title meeting this standard to the
Secretary of State."

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3. Article III, section 1, of the Oregon Constitution,
provides:
"The powers of the Government shall be divided
into three separate (sic) departments, the Legislative,
the Executive, including the administrative, and the
Judicial; and no person charged with official duties
under one of these departments, shall exercise any of
the functions of another[.]"

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