*1 Argued July July and submitted resubmitted ballot title certified as modified December

Ann Virginia BARTSCH,

Petitioner, KULONGOSKI, Theodore Oregon Attorney

Respondent. (SC S42354) *2 the cause Riemer, Oswego, argued Lake A. George petition petitioner. filed the General, Wasserman, Assistant

Richard D. him on the With Salem, respondent. the cause for argued Kulongoski, R. were Theodore response Linder, Solicitor General. L. Virginia GILLETTE, J.

Durham, J., opinion. and filed an concurred Unis, J., opinion. and filed an dissented

GILLETTE, J. petitioner in which original proceeding This is an initiative measure. challenges a ballot title for a manner, submitted who, timely is an elector in a Petitioner draft ballot Attorney General’s written comments about the 250.067(1). Accordingly, petitioner to ORS pursuant 250.085(2) a different title in this court. entitled to seek (5). follow, modify For the reasons that we General’s ballot title.

The proposed provides: initiative measure

“AN ACT Indepen- “Relating Independent Legal Technician and preparation Paralegals, providing dent affordable form services. - OF LAW

“Section 1. REPEAL ORS 9.160 PRACTICE Except BY MEMBERS. PERSONS OTHER THAN ACTIVE right prosecute for the litigants reserved to ORS 9.320 [or] person, defend cause no *3 represent person qualified practice law unless as to person Oregon State Bar. is an active member of the rights Except

“Section 2. for the NEW SECTION. litigants by defend a prosecute reserved to ORS 9.320 to person, legal in and independent cause and technicians forms, independent paralegals assisting in the selection (but to), filling the blanks on drafting, and not limited and in forms, per-printed legal computer [sic] as software as well forms, prac- programs generating legal person [sic] No being represent tice law or in court without person is an active qualified practice to law unless that member of the State Bar. [sic] AFFECT JANU-

“Section 3. THIS ACT TAKES 1, ARY 1997.”1 1 verbatim, exception. proposed Our We with one have set out the appears on what

insertion of “or” in 1 of the measure is based Section proposition was to intent in that section be the incontestable that the drafters’ 2 quote fully present “[sic]”in sections text of ORS 9.160. The interlineation English, problematical both and 3 of the measure calls attention grammar punctuation, present in those two sections. and General has certified the following

ballot title for that measure: SELECT,

“ALLOWSANY PERSON TO PREPARE LEGAL FORMS WITHOUT LICENSE “QUESTION: select, any person Shall statute allow forms, tasks, legal perform legal draft and fill in other with- out law license? any person prac- A “SUMMARY: statute now forbids so,

tice except persons law unless licensed to do represent repeal themselves. The measure would and replace keep that statute. The new statute would similar provisions, any person help legal but would allow select forms without a law license. It also would allow to license, legal including other services without a preparing filling but not other limited to forms for people.” 250.085(5) (1993),2

Under ORS we review ballot titles for compliance substantial with ORS 250.035 challenges Caption, 250.039.3 Petitioner former Question, Summary and the General’s ballot title. Because portions she attacks all three rationale, General’s ballot single title under a we discuss issue raised in unitary fashion.

Petitioner argues: [Ajttorney “[T]he measure is broader than described measure, worded, [GJeneral. per- Petitioner believes the as anyone mits law.” 250.085, legislature The 1995 amended ORS 250.035 and ORS repealed 1995, 534, 1, changes, §§ ORS 250.039. Or Laws ch & 19. Those

however, apply do not to the ballot title in this case. See Or Laws ch (act applies petitions prospective petition § 20 is filed on or initiative for which act). prospective petition after effective date of this case was filed before act, July effective date of the 1995 1995. 250.035(1) (1993) provided:

“The consist of: ballot title of measure to be initiated or referred shall “(a) caption reasonably A of not more than 10 words which identifies subject measure; *4 “(b) question plainly phrases A 20 the chief of more than words which purpose response of the measure that an affirmative so measure; corresponds to an affirmative vote on the and “(c) impartial A concise statement of not more than 85 words sum- and marizing major the measure and its effect.” 534, 19, 250.039, required repealed § Former ORS Or Laws ch ballot readability. comply to titles with a minimum standard of

339 in 2 the inclusion, the Section of She this view based on takes “(but not phrase, proposed parenthetical of the section that authorizes to),” limited in that of portion independent paralegals” and “independent legal technicians (but forms, to), to “in and not limited assist the selection of [pre]-printed legal in the blanks on drafting, filling and forms, computer programs generating as well as software — — correctly that legal points forms.”4 Petitioner out “independent technicians” “independent legal in the law. From paralegals” meaning have no established this, reasons, pro- she the authorization Section technicians” and “inde- posed “independent legal measure for is, reality, an pendent things to do certain paralegals” to those Petitioner things. authorization do “(but not lim- phrase, thus is that arguing parenthetical (her words) to),” ited that possibility” person “offers could in the of the of law without a engage range practice full license. agrees

In General it is response, goes at least measure as far as possible proposed petitioner’s suggests.5 of it General reading however, argues, likely phrase it is far more only that so meant to indicate petitioner troubles was “independent “independent technicians” parale- gals” a nature permitted would be other tasks of regarding legal similar to those enumerated forms. reading than one of the

When it that more appears precedents our wording plausible, contested measure is court, stage, are clear that it for this at this inappropriate See, e.g., in the measure. ambiguity to resolve such an 510, 516, P2d 656 Roberts, Aughenbaugh competing choose between for court (improper “nonsensical,” issue, describing English beyond as Petitioner takes no not) (or legal profession may swipe at the with be a roundhouse what person that no measure there states second sentence of Section 2: The * * * qualified practice practice being law unless that “shall without added.) negative (Emphasis an State Bar.” is pregnant active member of law, although sentence, course, right all is that it is so, qualified long of the Bar. We would as one is a member one is not to do so sponsor amount of measure with a certain more to credit inclined punctuation glaring grammatical inspired whimsy, errors were it not for measure. the balance of the agree part, petitioner appears that the General’s For her also permissible reading one. is a *5 Indeed,

interpretations stage). of measure at ballot title ambiguity, the face of such use in the ballot title of the actual wording of the measure the usually preferred is choice under (1993).6 Ibid. the of ORS 250.035 We say “usually,” Attorney while the noting General chose to depart from the usual in this case. He path did he persuaded, by by so because was comments made petitioner during the for process reviewing original pro- the — posed ballot that use of the “inde- measure’s terms — pendent “independent paralegals” technicians” problem, would create a because neither of those terms has any independent significance the outside measure itself. We agree Attorney with the General’s choice. There is no other permits source of law that the Attorney General or this court voter) (or, even more the point, to know who is author- by ized to the acts enumerated proposed measure.

Because the two terms at issue had defi- no outside nition, any person choosing to call herself or either himself an “independent legal technician” or an “independent parale- would, gal” by self-designation, virtue of that presumably be authorized to do whatever it is that the act such authorizes persons to do. It was for that Attorney reason that Gen- eral original chose to amend his ballot title to state “any person” would be authorized to do it was whatever permitted. measure otherwise

Petitioner is not satisfied with the mod- foregoing by already ification however. As indi- cated, she is of the view that the measure permits by of law therefore general practice any person, she say the ballot title should so. argues position, General’s as we understand of who it, may unlike the act pursuant the issue of what those far may complex. things do is more Some those persons — may by do are clear. Others those covered persons — subject and, therefore, are to debate are not parenthetical matters as to which it was appropriate separate no Petitioner makes assertion under ORS 250.039. We former provision. therefore do not address that (or court) Attorney General, now. to decide General spe- those acts that an enumeration therefore, concludes together cifically proposed measure, with authorized parenthetical the source of that is use of the his verbatim petitioner’s much as can be said concern, the voter as tells purporting to unravel effect, without about the measure’s disagree parenthetical. concerning scope We knot parties. part with both disagreement parties’ both common with Our plausibly premise, viz., that respects read to other authorize *6 relating legal 1 of than It is true that Section those to forms. repeal purports 9.160, the to ORS provision practice presently limits the of law to of law that persons Bar. are active members of State who But the 2 of measure then would re-enact Section provisions present 9.160, inter- substantive ORS lineating “independent legal concerning what matter may Although “independent paralegals” technicians” and that comprehensible do. — rewording artfully scarcely indeed, it is done not — any perceive reading for we do not basis “(but provision’s parenthetical, the new limited inclusion of the to),” anything principle do to more than invoke ejusdem generis. is, the authorize the That measure would persons perform to other tasks like kind to aforementioned agree those in the measure. We do not with the enumerated proposition people, were it to be enacted any person proposed practice permit to measure could be read to in this law state. foregoing

It Gen- follows from substantially comply eral’s ballot title as written does not with the title (1993). of ORS 250.035 The ballot scope modified to the limited must be reflect accomplished can with minimal measure. This be adjustments present text: Caption. adequate Caption is as written.

The The phrase present Question, Question. The legal “perform It is tasks,” can made more definite. other “perform legal read, similar tasks.” modified to Summary. phrase, The inclusion of the “includ- to,” ing but not limited Summary the last sentence of the is not sufficiently definite. That last sentence is modified to read, “It also person would allow fill in any legal forms for perform other people and other legal similar services con- cerning forms without a license.” 250.085(5), certify

Pursuant we follow- ing ballot title to the Secretary of State: SELECT,

ALLOWS ANY PERSON TO PREPARE LEGAL FORMS WITHOUT LICENSE QUESTION: Shall select, statute allow any person to forms, draft and fill legal perform legal similar tasks, without law license?

SUMMARY: A statute now any person forbids so, unless licensed to do except per- sons represent themselves. The measure would repeal replace that statute. The new would statute similar keep provisions, but would allow select help legal forms It without a law license. also would allow fill in legal forms other people other similar con- services cerning forms without a license.

Ballot title certified as modified. This decision 11.30(9). become effective in with accordance ORAP *7 DURHAM, J., concurring.

I join result, the majority’s but write separately express my reason.

The majority a certifies ballot title that is different by from that certified the I Attorney General. believe that that action violates the separation powers principle stated III, 1, However, in Article section Constitution. I concur with majority’s expressed the action for the reasons in my concurring opinion in 322 Kulongoski, Sizemore v. Or 229, (Durham, J., concurring). I also have a concern about one of the majority’s majority, citing Roberts, statements. The Aughenbaugh v. 510, 516, (1990), that, 309 Or 789 P2d in 656 indicates the initiative, face of an ambiguous wording in “use in the ballot

343 usually is measure wording the actual title of 250.035 ORS preferred choice under omitted). (footnote (1993).” majority The 322 Or 340 inap- is Aughenbaugh acknowledges passage from valid rea- here, for plicable because the by sons, repeating not the measure explain chose should However, I I whether the court agree. terms. (to term) a using for Aughenbaugh’s a use “preference” follow in describing, in the ballot ambiguous measure’s words of a measure.1 effect 1995, 250.035(2), Oregon Laws as amended 534, 1, chapter provides: section or any to be initiated

“The ballot title of state measure referred shall consist of:

“(a) caption A more 10 words reason- of not than subject The ably identifies the matter of the state measure. caption of an or amendment initiative referendum begin with ‘Amends Constitu- phrase, constitution shall tion,’ 10-word purposes which shall not be counted for limit; caption

“(b) A simple and statement of understandable result if state more than 15 words that describes approved. required by para- is this measure graph The statement yes,’ phrase, T vote’ or ‘vote or include either any substantially may placed be phrase, a at similar which statement; point within the

“(c) A of not simple and understandable statement 15 the result if the state more than words that describes rejected. para- required by measure statement no,’ phrase, T or graph shall include either the vote’ Vote substantially may placed be at phrase, a similar which statement; point within

“(d) than impartial A not more concise statement summarizing major and its effect.” 85 words the measure 1Aughenbaugh should used a ballot indicated that a measure’s text contrary,” Sampson summary, compelling v. “absent reason and cited title a Roberts, 335, (1990), proposition. Sampson, Or P2d (1989), turn, Roberts, for the same P2d 1093 cited Glerum general, point Aughenbaugh, proposition. Sampson, Glerum oí in the not different terms ballot title should use the terms convey meaning. Those cases do not hold that a different *8 necessarily convey subject, purpose, major or effect.

Three observations about the 1995 amendments are First, relevant. statute, under caption identifies the “subject matter” of the measure. Although the amendment substituted the phrase “subject matter” for the former statu- 250.035(l)(a) tory term “subject,” see ORS (caption identifies “subject”), measure’s that change does not alter the substance of the caption’s function.

Second, the legislature made no change the func- tion of the summary, which summarizes “the measure and its 250.035(2)(c). major effect.” ORS Third, legislature deleted the former requirement question of a 20-word that “plainly phrases the chief purpose 250.035(l)(b) measure,” (1993), and substituted the requirement of two statements describing the “result” of approval or rejection of the I measure. refer to those new as “result” statements. obligates statute the Attorney General and this court, in drafting the summary, to state the effect, i.e., actual the practical consequences of approval of the measure. As this court said in Fred Meyer, Roberts, Inc. v. 169, 175, 308 Or (1989), P2d 406 purpose “[t]he of the [summary] is to help voters understand happen what will if the measure * * * * * * approved, [summary] should be worded so that voters will understand the breadth of its In impact.” addition, the “result” statements must describe explicitly consequences approval or rejection of the measure. view,

In my the Attorney General and this court would not necessarily satisfy the statutory obligation to communicate the results or effects of a measure simply by repeating measure’s words. For if example, a measure proposes in terms to repeal one or more statutes, identified a ballot title summary that repeats only those operative words would fail to describe the measure’s result or effect on the law or on rights affected persons.2 purpose of the result statements and the Roberts, (1988), point. Reed illustrates the In Reed, sought repeal requires the ballot measure the statute that state Bar membership modifying law. In the ballot title’s to state the purpose, explain purpose measure’s chief this court added text to and did not merely identify repeal. the statute that the measure would rejec- consequences adoption explain summary tion the measure.3 *9 of importance on extra measure

That takes an point Gen- is ambiguous. if text of the measure the text of a measure is may conclude that eral or this court that, and plausible interpretation more than one subject intention, the drafter’s efforts discern despite best meaning clear. If an measure do not make its words unclear, in a measure leaves its intention ambiguity satisfy statutory not Attorney General and this court do (d) 250.035(2)(b), (c), to state the obligation under of the the measure’s repeating result and effect measure thereby merely perpetu- obscure in the ballot terms ating those doubts. a require not determination of the

This case does court in prepar- General and this obligation for an ing summary ambiguous result statements and a argument to the con- petitioner’s Despite initiative measure. convey meaning trary, the text of this measure does holds. It be that majority without as the ambiguity, identify the for an measure should ambiguous ballot title title can- ambiguity acknowledge and either ballot it effect of the because is state the result and anticipated results ambiguous, attempt to describe the plausible interpreta- under each the disputed and effects I no on the resolution of express opinion of the measure. tions issue, repetition a ballot except emphasize rarely satisfy in a measure would ambiguous title of result and the measure’s statutory state obligation effect.

I concur.

UNIS, J., dissenting. that ORS to the extent my

I view adhere 250.085(5) (1993) to draft jurisdiction court gives is initiative a title for a certify ballot by the certified different than one (“It part Paulus, 580 P2d 171 282 Or See ACLU v. otherwise is explain purpose of text that title to function the ballot disputes prejudging possible future laymen, without so far as this obscure meaning.”). about its statute violates the principle of separation powers embod- III, ied in Article section of the Oregon Constitution. (Elections Rooney v. Kulongoski #13), Division 15, 55, (1995) (Unis, J., would, dissenting). therefore, I jurisdiction. dismiss this case for lack of