Bartsch v. Kulongoski

906 P.2d 815, 322 Or. 335, 1995 Ore. LEXIS 134
CourtOregon Supreme Court
DecidedDecember 1, 1995
DocketSC S42354
StatusPublished
Cited by6 cases

This text of 906 P.2d 815 (Bartsch v. Kulongoski) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartsch v. Kulongoski, 906 P.2d 815, 322 Or. 335, 1995 Ore. LEXIS 134 (Or. 1995).

Opinions

[337]*337GILLETTE, J.

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

The proposed initiative measure provides:

“AN ACT
“Relating to Independent Legal Technician and Independent Paralegals, providing affordable legal form preparation services.
“Section 1. REPEAL - ORS 9.160 PRACTICE OF LAW BY PERSONS OTHER THAN ACTIVE MEMBERS. Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law [or] represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.
“Section 2. NEW SECTION. Except for the rights reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, and independent legal technicians and independent paralegals assisting in the selection of forms, and (but not limited to), drafting, and filling in the blanks on per-printed [sic] legal forms, as well as computer software programs generating legal forms, [sic] No person shall practice law or represent that person in court without being qualified to practice law unless that person is an active member of the Oregon State Bar.
“Section 3. THIS ACT TAKES AFFECT [sic] JANUARY 1, 1997.”1

[338]*338The Attorney General has certified the following ballot title for that proposed measure:

“ALLOWS ANY PERSON TO SELECT, PREPARE LEGAL FORMS WITHOUT LICENSE
“QUESTION: Shall statute allow any person to select, draft and fill in legal forms, perform other legal tasks, without law license?
“SUMMARY: A statute now forbids any person to practice law unless licensed to do so, except that persons may represent themselves. The measure would repeal and replace that statute. The new statute would keep similar provisions, but would allow any person to help select legal forms without a law license. It also would allow any person to perform other legal services without a license, including but not limited to preparing and filling in legal forms for other people.”

Under ORS 250.085(5) (1993),2 we review ballot titles for substantial compliance with ORS 250.035 (1993) and former 250.039.3 Petitioner challenges the Caption, the Question, and the Summary in the Attorney General’s ballot title. Because she attacks all three portions of the Attorney General’s ballot title under a single rationale, we discuss the issue raised in a unitary fashion.

Petitioner argues:

“[T]he measure is broader than described by the [Ajttorney [GJeneral. Petitioner believes the measure, as worded, permits anyone to practice law.”

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

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

When it appears that more than one reading of the wording of a contested measure is plausible, our precedents are clear that it is inappropriate for this court, at this stage, to resolve such an ambiguity in the measure. See, e.g., Aughenbaugh v. Roberts, 309 Or 510, 516, 789 P2d 656 (1990) (improper for court to choose between competing [340]*340interpretations of measure at ballot title stage). Indeed, in the face of such ambiguity, use in the ballot title of the actual wording of the measure usually is the preferred choice under the requirements of ORS 250.035 (1993).6 Ibid.

We say “usually,” while noting that the Attorney General chose to depart from the usual path in this case. He did so because he was persuaded, by comments made by petitioner during the process for reviewing the original proposed ballot title, that use of the measure’s terms — “independent legal technicians” and “independent paralegals” — would create a problem, because neither of those terms has any independent significance outside the measure itself. We agree with the Attorney General’s choice. There is no other source of law that permits the Attorney General or this court (or, even more to the point, a voter) to know who is authorized to perform the acts enumerated by the proposed measure.

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

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Related

Wolf v. Myers
173 P.3d 812 (Oregon Supreme Court, 2007)
Peterson v. Myers
44 P.3d 586 (Oregon Supreme Court, 2002)
Sizemore v. Myers
953 P.2d 360 (Oregon Supreme Court, 1997)
Ascher v. KULONGOSKI (ELECTIONS DIV. 49)
909 P.2d 1228 (Oregon Supreme Court, 1996)
Bartsch v. Kulongoski
906 P.2d 815 (Oregon Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
906 P.2d 815, 322 Or. 335, 1995 Ore. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartsch-v-kulongoski-or-1995.