Farago v. Kulongoski

872 P.2d 961, 319 Or. 20, 1994 Ore. LEXIS 38

Opinions

PER CURIAM

In this original proceeding, petitioner challenges the ballot title for a proposed initiative measure. Petitioner is an elector who timely submitted written comments addressed to the Attorney General’s draft ballot title. Therefore, he is entitled to petition this court seeking a different title. ORS 250.085(2).

The Attorney General certified this ballot title to the Secretary of State:

“AMENDS CONSTITUTION: STATE MUST MAINTAIN FUNDING FOR SCHOOLS, COMMUNITY COLLEGES

“QUESTION: Shall constitution set minimum state funding of schools, community colleges based on funds available from listed sources in 1993-95 biennium?

“SUMMARY: Amends state constitution. Requires Legislature to fund schools and community colleges at no less than 1993-95 base amount, as adjusted. Base amount is the funds needed to give schools and community colleges same funding they had in 1993-95 from listed sources. Base amount must be adjusted for inflation, deflation and enrollment changes. Legislature must compute base amount and adjustments before each biennium. Legislature may change the amount for any school or community college so long as it gives at least total funds required by measure.”

Petitioner asserts that the Caption, Question, and Summary in the Attorney General’s ballot title are deficient in various particulars. We have considered his arguments but conclude that the ballot title certified by the Attorney General complies substantially with the requirements of ORS 250.035(1), ORS 250.085(5), and therefore certify that ballot title.¹

Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(9).

1 As already noted, petitioner had submitted comments during the statutory comment period and therefore had standing to seek review of the present ballot title. ORS 250.085(2). Intervenors have moved to “dismiss” the petition to review the ballot title under ORS 250.085(6), because petitioner’s arguments to this court were not submitted in written comments to the Secretary of State, pursuant to ORS 250.067(1). That motion is denied. As a general matter, the fact that a petitioner may not be entitled to have certain of his arguments considered does not make the underlying petition dismissable under ORS 250.085(6). Instead, counsel should argue, in the terms of that statute, as did respondent here, that this court should “not consider arguments” that neither were presented in written comments to the Secretary of State, nor excused from presentation, pursuant to the provisions of ORS 250.085(6).

In this particular case, the Attorney General changed the draft ballot title after the expiration of the comment period, and the court has considered petitioner’s arguments, pursuant to ORS 250.085(6), which provides:

“When reviewing a title prepared by the Attorney General, the 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 provided in ORS 250.067.” (Emphasis added.)