Leo v. Myers

952 P.2d 543, 326 Or. 400, 1998 Ore. LEXIS 19
CourtOregon Supreme Court
DecidedFebruary 12, 1998
DocketSC S44794, S44798, S44797
StatusPublished

This text of 952 P.2d 543 (Leo v. Myers) 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
Leo v. Myers, 952 P.2d 543, 326 Or. 400, 1998 Ore. LEXIS 19 (Or. 1998).

Opinions

[402]*402GILLETTE, J.

These three ballot title review proceedings are consolidated for purposes of argument and opinion. The cases involve three different, but closely related, ballot measures. In each, petitioner1 challenges the legal sufficiency of one or more parts of a ballot title certified by the Attorney General. For the reasons that follow, we modify the ballot title certified by the Attorney General for each measure and, as modified, certify the various ballot titles.

The three proposed measures have been denominated by the Secretary of State as Measure 55, Measure 56, and Measure 57. Each would amend Article VII (Amended), section 1, of the Oregon Constitution, by adding the words emphasized in boldface2 to that section:

“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term which they are elected. No law or rule shall limit freedom of speech by candidates for any judicial office. Freedom of speech shall include, but shall not be limited to, the right to express views on judicial issues and the performance of judges. No designation of incumbency or reference to current or prior judicial position shall be permitted on the ballot in a contested election. If an incumbent judge has no opposition, voters shall be given a choice as to whether they wish to retain the judge for an additional term. The choice shall be clearly stated on the ballot next to the incumbent judge’s name. If a majority of those voting [403]*403do not vote to retain the incumbent judge, a new election, in which the incumbent judge will not be eligible, shall be held ”

The texts of the three proposed measures vary in the following respects:

Measure 56

Measure 56 contains only the wording emphasized above.

Measure 57

Measure 57, in addition to the emphasized wording, would add the following additional sentence to section 1 of Article VII (Amended):

“All judicial positions shall be filled by election, including any position that becomes vacant during a term of office.”

The apparent purpose of that additional provision is to remove gubernatorial authority to appoint persons to fill judicial vacancies. At present, such authority is provided by Article V, section 16, of the Oregon Constitution.3

Measure 55

Measure 55 contains both the wording of Measure 56, emphasized above, and also the additional wording of Measure 57. However, Measure 55 restores to a limited degree the gubernatorial appointment power, but also limits appointed judges’ tenure, by adding the following subsection:

“(2) Notwithstanding subsection (1), the governor may, in a manner provided by law, appoint a person to fill a vacant position, provided that no person shall serve more than six months without election.”

[404]*404From the foregoing summary, it may be seen that the three proposed measures represent a basic theme in two parts (Measure 56), which then is augmented in two slightly different ways (Measures 55 and 57):

(1) All judicial positions, whether vacant or having an incumbent, are to be filled by election.4

(2) And, in the campaigning for election to a judicial position, judicial candidates shall be free to express themselves as fully as if they were candidates for nonjudicial, and even partisan, offices.5

With the foregoing general observations in mind, we turn to the specific challenges made by petitioner against each of the proposed measures. For the sake of internal clarity, this opinion shall address each measure in the same order in which we earlier have summarized it, i.e., we deal first with Measure 56 (the basic measure); followed by Measure 57 (the basic measure, plus elimination of gubernatorial appointment); and, finally, discuss Measure 55 (the basic measure, coupled with provisions that first take away and then, to a limited extent, restore the gubernatorial power of appointment).

Measure 56 (the basic measure)

The Attorney General’s certified caption for this proposed measure states:

“AMENDS CONSTITUTION: EXPANDS JUDICIAL CANDIDATES’ SPEECH RIGHTS; CHANGES PROCESS FOR RETAINING JUDGES”

Petitioner asserts that the foregoing caption is inadequate, for the purposes of ORS 250.035(l)(a), because it fails reasonably to identify the “subject” of the measure. We agree with [405]*405that proposition, but on a more narrow basis than most of petitioner’s alternative theories as to why that is so.

The Attorney General’s caption highlights both parts of the measure. If a measure essentially has only two parts and they both may be highlighted within the 10-word limitation on captions, such an approach may be acceptable. See, e.g., Crumpton v. Keisling, 317 Or 322, 325-26, 855 P2d 1107 (1993) (recognizing principle). The Attorney General has attempted to do that with respect to Measure 56. However, use of the rubric, “speech rights,” in one part of the caption conceals, rather than reveals, the sweep of the proposed measure. Ambiguous mention of an “expansion” of “speech rights” of judges does nothing to suggest the fundamental alteration that the proposed measure would make in the judicial campaign process. As we have indicated, the measure would free judicial candidates to engage in political activity as fully as if they were candidates for offices outside the judicial branch. That is a subject of the measure that the ballot must portray accurately. The failure of the Attorney General’s caption to do so means that the caption is inadequate under ORS 250.035(l)(a). A modification is necessary.

On the other hand, the other half of the Attorney General’s caption, viz., “CHANGES PROCESS FOR RETAINING JUDGES,” is adequate. The measure would alter the method by which one kind of incumbent judge may be retained. At present, a judge who is unopposed need only receive more votes than any individual write-in candidate in order to retain the judge’s position. The proposed measure would turn an election in which a judge was unopposed into a referendum on whether that judge should be retained.6 We thus conclude that the essential message of that part of the Attorney General’s ballot title caption may be sustained. However, in order to accommodate the modification that we earlier have indicated will be required, some modification to this half of the ballot title caption also will be necessaxy.

[406]*406The Attorney General’s caption is modified to read as follows:

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Related

Crumpton v. Keisling
855 P.2d 1107 (Oregon Supreme Court, 1993)
Phillips v. Myers
936 P.2d 964 (Oregon Supreme Court, 1997)
Rooney v. Kulongoski
902 P.2d 1143 (Oregon Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
952 P.2d 543, 326 Or. 400, 1998 Ore. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leo-v-myers-or-1998.