
Filed:  December 20, 2001
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN NOVICK,
	Petitioner,
	v.
HARDY MYERS,
Attorney General, State of Oregon,
	Respondent.
(SC S48765)
 
	En Banc
	On petition to review ballot title.
	Argued and submitted October 4, 2001.
 
	Steven Novick, Portland, argued the cause and filed the
petition.
	Janet A. Metcalf, Assistant Attorney General, Salem, argued
the cause and filed the answering memorandum for respondent. 
With her on the answering memorandum were Hardy Myers, Attorney
General, and Michael D. Reynolds, Solicitor General.
	GILLETTE, J.
	Ballot title referred to the Attorney General for
modification.
		GILLETTE, J.
		In this ballot title review proceeding, petitioner
challenges all four aspects (i.e., the caption, the "yes" and
"no" vote result statements, and the summary) of the Attorney
General's certified ballot title for a proposed initiative
measure that the Secretary of State has denominated as Initiative
Petition 72 (2002).  We review the Attorney General's certified
ballot title to determine whether it substantially complies with
the requirements of ORS 250.035.  See ORS 250.085(5) (setting out
standard of review).
		The proposed measure would amend the present wording of
Article IV, section 1, subsection (2), paragraph (d), of the
Oregon Constitution, in three respects:
		"Article IV, section 1, subsection (2), paragraph
(d) of the Constitution of the State of Oregon is
amended to read:


		"(d) An initiative petition shall include the full
text of the proposed law or amendment to the
Constitution.  A proposed law or amendment [to the
Constitution] shall embrace one subject only and
matters [properly] reasonably connected therewith.  An
initiative shall not be found to contain multiple
subjects or amendments unless the subjects or
amendments contained therein are in no meaningful way
connected or related.  A proposed law or amendment that
offers voters a coherent package of choices or
tradeoffs shall not be invalidated on grounds that it
contains more than one subject or amendment." (1)

(Wording that would be removed from the present paragraph (d) is
set off in brackets and is italicized; wording that would be
added is set out in bold.)
		The substance of the parties' arguments turns on the
scope and meaning of the two additional sentences that the
proposed measure would add to Article IV, section 1(2)(d). 
Article IV, section 1(2)(d), commonly is referred to in its
present wording as the "single-subject" requirement. 
Completeness requires us to include reference to another
provision of the Oregon Constitution because, as we shall
explain, its wording appears to be the reason for some of the
content of the last two sentences of the proposed measure. 
Article XVII, section 1, of the Oregon Constitution, which
describes the manner in which the Constitution may be amended,
provides, in part: 
	"When two or more amendments [to the Oregon
Constitution] shall be submitted in the manner
aforesaid[, i.e., either by legislative referral or by
initiative,] to the voters of this state at the same
election, they shall be so submitted that each
amendment shall be voted on separately.* * *"
The quoted part of Article XVII, section 1, commonly is referred
to as the "separate-vote" requirement.  An initiated measure
fails the test of Article XVII, section 1, if it submits to the
people for a single vote two or more substantive changes to the
Oregon Constitution that are not "closely related."  Armatta v.
Kitzhaber, 327 Or 250, 277, 959 P2d 49 (1998).  The "single-subject" and "separate-vote" requirements are related, but they
are not the same.  See generally id. at 256-75 (explaining
origins, meaning, and interrelationship of Article IV, section
1(2)(d), and Article XVII, section 1).  
		The Attorney General certified the following ballot
title for the proposed measure:

"AMENDS CONSTITUTION: INITIATIVE
CONTAINING RELATED PARTS, OFFERING
VOTERS COHERENT PACKAGE OF CHOICES
CONTAINS SINGLE SUBJECT
	     "RESULT OF 'YES' VOTE: 'Yes' vote accepts proposal
stating that initiative contains one subject,
amendment, if its parts are related in any 'meaningful
way,' offers coherent package of choices.
	     "RESULT OF 'NO' VOTE: 'No' vote rejects proposal
stating that initiative contains one subject,
amendment, when its parts are related, or it offers
voters coherent package of choices, tradeoffs.
	     "SUMMARY: Amends Constitution.  Under current law,
an initiative measure is limited to a single subject
and related matters.  An initiative complies with the
single-subject requirement if it contains a unifying
principle that logically connects all of its
provisions.  The measure provides that an initiative
shall not be found to contain more than one subject or
constitutional amendment unless the subjects or
amendments in the initiative are not connected or
related in any 'meaningful way.'  Under the measure, a
proposed law or constitutional amendment can not be
invalidated on the basis that it contains more than one
subject or amendment if the proposed law or
constitutional amendment offers voters a coherent
package of choices or tradeoffs."

		As noted, petitioner objects to the ballot title
caption, result statements, and summary.  Petitioner's primary
argument (2) is that the true "subject" of the proposed measure is a
change in the criteria that proposed initiatives would have to
meet to be eligible to be placed on the ballot.  More
specifically, he asserts that the proposed measure is a directive
to the responsible state officials -- most commonly the Secretary
of State and this court -- not to declare invalid future
initiatives that meet the proposed measure's rewording of both
the "single-subject" and "separate-vote" requirements.  It
follows that, if petitioner's argument is correct, then the
Attorney General's caption, result statements, and summary are
insufficient, because none mentions that the proposed measure
alters the constitutional criteria for applying those
requirements.
		The Attorney General responds that petitioner's
arguments are speculative and that the Attorney General does not
have the authority to speculate as to the meaning of a proposed
measure in writing a ballot title.  See Kane v. Kulongoski, 319
Or 88, 91, 872 P2d 981 (1994) (so holding).  We disagree with the
Attorney General that petitioner's arguments are speculative.
		Respecting the effect of the proposed measure on the "single-subject" requirement, we agree with the Attorney General
that it may be not possible to state precisely how the proposed
measure would alter the meaning of the present wording of Article
IV, section 1(2)(d).  See, e.g., State ex rel Caleb v. Beesley,
326 Or 83, 89-91, 949 P2d 724 (1997) (discussing test; indicating
that enactment does not violate single-subject requirement
"merely by including a wide range of connected matters intended
to accomplish the goal of that single subject"); Armatta, 327 Or
at 273 (citing with approval and relying on Beesley).  But it is
inescapable that the proposed measure, by its terms, changes the
wording of the constitutional test, and the voters must be told
at least that much, especially if -- as petitioner contends --
the proposed measure also affects the separate-vote requirement. 
We turn to that issue.
		The Attorney General argues that, by its wording, the
proposed measure speaks only to Article IV, section 1(2)(d), of
the Oregon Constitution, and does not implicate the "separate-vote" requirement of Article XVII, section 1.  We disagree.  We
do not see how the wording in two separate sentences of the
proposed measure, viz., "[a]n initiative shall not be found to
contain multiple * * * amendments" and "[an] amendment * * *
shall not be invalidated on grounds that it contains more than
one * * * amendment" (emphasis added), fairly can be read in any
other way than as implicating the standard presently found in
Article XVII, section 1.  The Attorney General's argument that
the proposed measure affects only Article IV, section 1(2)(d),
because it mentions only that constitutional provision, cannot
prevail against the wording of the proposed measure, which
implicates Article XVII, section 1, as well as Article IV,
section 1(2)(d).  
		We also reject the Attorney General's further assertion
that the proposed measure implicates only Article IV, section
1(2)(d), because, as the Attorney General reads it, the wording
that the proposed measure would add to that constitutional
section focuses on the content of future proposed measures,
rather than on the effect of proposed measures on the existing
constitution.  The Attorney General points out that this court in
Armatta differentiated between Article IV, section 1(2)(d), and
Article XVII, section 1, on the ground, inter alia, that the
former is concerned with the content of a measure, while the
latter is concerned with the effect of a measure on the existing
constitution.  Id. at 270.  We are not persuaded by that
argument, however, because of the direct instruction in the
proposed measure that an initiative not be invalidated on the
ground that "it contains more than one * * * amendment."  An
initiative never would have been invalidated on that ground under
Article IV, section 1(2)(d); such an action would have been
grounded on Article XVII, section 1.  See Armatta, 327 Or at 283-84 (illustrating principle).  The caption, the "yes" and "no"
vote result statements, and the summary must be revised to
reflect that the proposed measure creates new criteria respecting
the standards presently found in both Article IV, section
1(2)(d), and Article XVII, section 1, of the Oregon Constitution.
		Petitioner also asserts that the Attorney General's
certified ballot title fails to comply with the requirements of
law in that it 
	"misleadingly suggests that an initiative must both
have related parts and offer voters a coherent package
of choices in order to be considered to contain a
single subject, when in fact the measure provides * * *
that an initiative must only meet one of the two
alternative standards."

(Emphasis in original.)  Petitioner's complaint arises out of the
use of commas in the caption and the "yes" vote result
statement. (3)  The commas, he asserts, will leave the voter with
the impression that, to pass constitutional muster, an initiative
both must contain provisions all of which are related in a
"meaningful way" and must offer the voters a "coherent package of
choices or tradeoffs."  That is, petitioner asserts that voters
will read the commas used by the Attorney General to mean "and." 
In fact, however, petitioner claims that the criteria are
alternatives, either of which would qualify an initiative for the
ballot.
		We agree with petitioner that the wording of the
proposed measure indicates that an initiative that meets either
the "related in a meaningful way" or the "coherent package of
choices or tradeoffs" standard would pass constitutional muster. 
We note that the Attorney General apparently agrees with that
reading as well, because he used the conjunction "or" in his "no"
vote result statement. (4)  We also agree with petitioner that
voters could misread the commas about which he is concerned in
the caption and "yes" vote result statement to mean "and."  It
follows that the caption and "yes" vote result statement fail to
conform to the requirements of law in this respect, as well.  
		Ballot title referred to the Attorney General for
modification.




1. 	We note that the deletion of the repeating phrase, "to
the Constitution," is unexplained and, in any event, immaterial
to our disposition of the present case.  Similarly, the meaning
of the substitution of the adverb "reasonably" for the adverb
"properly," although a change of uncertain consequence, does not
lie at the heart of the present controversy.

Return to previous location.



2. 	We combine petitioner's first two arguments in his
petition for the purposes of this discussion.

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3. 	As noted, the Attorney General's caption and "yes" vote
result statement provide:

"AMENDS CONSTITUTION: INITIATIVE CONTAINING
RELATED PARTS, OFFERING VOTERS COHERENT
PACKAGE OF
CHOICES CONTAINS SINGLE SUBJECT."
		"'Yes" vote accepts proposal stating that
initiative contains one subject, amendment, if its
parts are related in any 'meaningful way,' offers
coherent package of choices."
Return to previous location.



4. 	The Attorney General's "no" vote result statement
provides:
 	"'No' vote rejects proposal stating that
initiative contains one subject, amendment, when its
parts are related, or it offers voters coherent package
of choices, tradeoffs."
(Emphasis added.)
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