FILED: March 22, 2006
IN THE SUPREME COURT OF THE STATE OF OREGON
WILLIAM (BILL) PERRY,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(S53168)
On petition to review ballot title.
Submitted on the record February 28, 2006.
Michael Mills, Salem, filed the petition for petitioner.
Elizabeth A. Gordon, Senior Assistant Attorney General,
Salem, filed the answering memorandum for respondent.  With her
on the answering memorandum were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Before De Muniz, Chief Justice, Carson, Gillette, Durham,
Riggs, and Balmer, Justices.*
Durham, J.
Ballot title referred to Attorney General for modification. 
*Kistler, J., did not participate in the consideration or
decision of this case.
DURHAM, J.
Petitioner seeks review of the ballot title for a
proposed initiative measure that would amend the Oregon
Constitution.  ORS 250.085(2). (1)  The Secretary of State has
denominated the proposed measure as Initiative Petition No. 125
(2006).  If approved by the voters, the proposed measure would
enact constitutional limits on the compensation that retailers
receive from the proceeds of the Oregon State Lottery after
payment of lottery prizes.  The proposed measure also would
dedicate certain increases in video lottery revenue to public
education.  Initiative Petition No. 125 (2006) is virtually
identical to another proposed initiative measure, Initiative
Petition No. 113 (2006), except that the latter measure proposes
a statute rather than a constitutional amendment.  See
Perry/Novick v. Myers, 340 Or ___, ___ P3d ___ (2006) (reviewing
ballot title for Initiative Petition No. 113 (2006)).
The Attorney General certified the following ballot
title for Initiative Petition No. 125 (2006):  

"AMENDS CONSTITUTION: LIMITS RETAILERS' PAYMENTS
FROM NET VIDEO LOTTERY RECEIPTS;
DEDICATES INCREASED VIDEO LOTTERY REVENUES TO EDUCATION
"RESULT OF 'YES' VOTE:  'Yes' vote limits
retailers' payments from net video lottery receipts to
no more than 18 percent.  Dedicates increase in video
lottery revenue to K-12 education.
"RESULT OF 'NO' VOTE:  'No' vote retains existing
system directing Lottery commission to determine
retailer compensation.  Video retailers receive
payments from 11 percent to 32.5 percent of net
receipts.
"SUMMARY:  Amends Constitution.  Under current
law, State Lottery Commission determines payments to
lottery retailers.  Video retailers may receive
payments from 11 to 32.5 percent of net receipts; video
lottery proceeds are dedicated to lottery bonds,
economic development, job creation, education
stability, park/natural resource funds.  Measure limits
video lottery retailers' compensation to no more than
18 percent of 'net receipts'; 'net receipts' are video
lottery operational revenues.  Beginning July 2007,
measure requires 'increase' in net proceeds of video
lottery revenues be dedicated to public K-12 education;
'increase' is increase in video lottery revenues in any
fiscal year over such revenue for fiscal year ending
June 2007.  Net proceeds do not include video lottery
revenues constitutionally required for deposit to
education stability/natural resource funds.  Other
provisions."

Petitioner is an elector who submitted written comments
on the Attorney General's draft ballot title.  ORS 250.067(1). 
ORS 250.085(2) therefore entitles petitioner to seek review of
the Attorney General's certified ballot title.  We review the
ballot title "for substantial compliance with the requirements of
ORS 250.035."  We also bear in mind the following limitation in 
on our review of ballot title challenges:

"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
in ORS 250.067."

ORS 250.085(6).
Petitioner argues that the certified caption, "yes"
vote result statement, and summary are all insufficient for
several reasons.  With one exception that we discuss below,
petitioner failed to present the arguments on which he now relies
in writing to the Secretary of State under ORS 250.067, and his
arguments do not concern "language added to or removed from the
draft title after expiration of the comment period provided in
ORS 250.067."  ORS 250.085(6).  Consequently, we do not consider
those arguments.
Petitioner submits one challenge to the certified
ballot title summary (2) that does restate an argument that he
submitted in writing to the Secretary of State under ORS 250.067. 
Petitioner points out that the certified summary uses a phrase,
"video lottery operational revenues," to describe "net receipts." 
He complains that "video lottery operational revenues" is
confusing because the contract between the state lottery and
retailers defines "net receipts" as the amount that a retailer
receives from the sale of video lottery games after the payment
of prizes, not as "video lottery operational revenues."  The
Attorney General agrees that the challenged phrase creates
potential confusion and requests that the court refer the ballot
title to the Attorney General for modification.  We agree with
the Attorney General's concession.  The phrase "operational
revenues" fails to clarify that net receipts of the sale of video
lottery games are those that remain after payment of video
lottery prizes.
The Attorney General also asserts that the "no" vote
result statement and the summary are insufficient for reasons
that petitioner has not raised.  Accordingly, he requests that
the court refer the ballot title for modification to remedy those
additional defects.
As noted above, this court sustains one of petitioner's
challenges to the summary and will refer the ballot title for
modification under ORS 250.085(8).  On referral, the Attorney
General may revise any part of the ballot title to respond to any
change that this court requires on review.  In addition, as this
court has stated,

"The Attorney General has authority to make other
modifications to the ballot title beyond those
discussed in [the court's] opinion to achieve
substantial compliance with statutory requirements."

Greenberg v. Myers, 340 Or 65, 77, ___ P3d ___ (2006).  As
Greenberg confirms, there is no statutory limitation that would
prevent the Attorney General from revising the wording in any
part of a ballot title on referral, including wording that no
elector previously has challenged, to comply with the statutory
requirements of ORS 250.035(2).
The Attorney General's summary does not comply
substantially with ORS 250.035(2)(d).  We refer the ballot title
to the Attorney General for modification.  ORS 250.085(8).
Ballot title referred to Attorney General for
modification.  


1. ORS 250.085(2) provides:

"Any elector dissatisfied with a ballot title for
an initiated or referred measure certified by the
Attorney General and who timely submitted written
comments on the draft ballot title may petition the
Supreme Court seeking a different title.  The petition
shall state the reasons that the title filed with the
Secretary of State does not substantially comply with
the requirements of ORS 250.035."

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2. ORS 250.035(2) provides in part:

"The ballot title of any state measure to be
initiated or referred shall consist of:
"* * *
"(d) A concise and impartial statement of not more
than 125 words summarizing the state measure and its
major effect."

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