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FILED: January 17, 2002

LON T. MABON,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

ROY PULVERS,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

On petitions to review ballot title.

Submitted on the record December 5, 2001.

Lon Mabon, Portland, filed the petition for himself.

Roy Pulvers, Portland, filed the petition for himself.

Laura S. Anderson, Assistant Attorney General, Salem, filed the answering memoranda for respondent. With her on the memoranda were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Gillette, Leeson, Riggs, De Muniz, and Balmer, Justices.*

LEESON, J.

Ballot title referred to the Attorney General for modification.

*Carson, C.J., and Durham, J., did not participate in the consideration or decision of this case.

LEESON, J.

These two ballot title review proceedings have been consolidated for opinion. They concern the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 107 (2002). For the reasons explained below, we refer the ballot title to the Attorney General for modification. See ORS 250.085(8) (setting out procedure); Flanagan v. Myers, 332 Or 318, 323-24, 30 P3d 408 (2001) (applying ORS 250.085(8)).

The proposed measure would amend the Oregon Constitution by adding "as section 11" (1) the following to Article I:

"Section 11. Oath of office of judges.

"Notwithstanding any other provision of this constitution every judge of Oregon law, before entering upon the duties of his office, shall publicly take and subscribe, and transmit to the secretary of state, the following oath:

"'I, _________________________, do solemnly swear (or affirm) that I will support and defend the national constitution of the United States of America (A.D. 1789), and the constitution of the Union state of Oregon (A.D. 1859). And when discharging the duties of this office I will give allegiance to no other like jurisdiction, whether foreign or domestic. I will faithfully and impartially, in a manner free of all bias, discharge the duties of a judge of said state, according to the best of my ability. I further swear (or affirm) that I will honor and maintain the separation of powers doctrine and I will not use my official duties to create law from the bench. As an interpreter of law I will not substitute my opinion or preference, or that of any social faction, for the will of the people, but shall adhere strictly to the intent of the framers, both of the law and of the constitution. Where such intent cannot be discerned, I will defer to the legislative branch to provide it. I will not accept any other office, except judicial offices, during the term for which I have been elected or appointed.'"

The Attorney General certified the following ballot title for the proposed measure:

"AMENDS CONSTITUTION: REQUIRES THAT
JUDGES TAKE OATH LIMITING INTERPRETATION
OF LAW BY FOLLOWING FRAMERS' AND
LEGISLATURE'S INTENT

"RESULT OF 'YES' VOTE: 'Yes' vote requires judges to take oath limiting interpretation of law by requiring adherence to framers' intent and deferring to legislature where intent is unclear.

"RESULT OF 'NO' VOTE: 'No' vote rejects requiring judges take oath limiting interpretation of law by requiring adherence to framers' intent and deferring to legislature where intent is unclear.

"SUMMARY: Amends constitution. Current law requires judges to take oath of office to support the Oregon and federal constitutions, faithfully and impartially discharge duties according to best of their ability, and not accept any office except judicial office during their elective term. Measure requires that judges take oath to support and defend 1789 federal constitution and 1859 Oregon constitution; give allegiance only to Oregon and federal jurisdictions; 'honor and maintain separation of powers doctrine;' set aside personal views or those of any social faction; not 'create law from the bench;' uphold 'will of the people;' adhere strictly to intent of framers of constitution, statutes, common law; defer to legislature to provide intent where framers' intent is unclear. Measure does not define quoted terms. Other provisions."

ORS 250.035(2) sets out the requirements for a ballot title caption, result statements, and summary for a state initiative measure. (2) This court reviews the Attorney General's ballot title for "substantial compliance with the requirements of ORS 250.035." ORS 250.085(5).

Petitioner Mabon challenges the caption, the result statements, and the summary of the ballot title. We have considered each of his challenges and conclude that none is well taken. We turn to petitioner Pulvers's challenges.

As with Mabon, Pulvers challenges each aspect of the ballot title. We begin with the caption, which Pulvers argues is deficient in two respects. First, he contends that the caption does not advise voters that the proposed measure will "replace or supercede the existing, constitutional oath for judges with a new oath." Second, he contends that the caption "selectively refers only to judicial interpretation of 'Law'" when the subject matter of the proposed measure is to place strict limits on judicial interpretation "both of the law and of the constitution."

Regarding Pulvers's first argument, the Attorney General responds that replacing existing oaths is the purpose of the proposed measure, not its subject matter and, therefore, it would be inappropriate to refer to existing oaths in the caption. Moreover, he asserts that "the phrase in the caption and summary, 'Amends Constitution,' reasonably informs the voters that the proposed measure (and hence, the proposed oath) either adds to, takes away, or changes what already is contained in the constitution" and that the caption appropriately sets out the substance of existing oaths. Regarding Pulvers's second argument, the Attorney General contends that the word "law" can be used to refer to all forms of positive law, including constitutional law. He argues that the caption therefore complies with the statutory standard.

The proposed measure provides that "every judge of Oregon law * * * shall publicly take and subscribe [to] * * * the following oath." The remainder of the proposed measure sets out the form of oath. The text of the proposed oath incorporates some of the wording of existing oaths, see, e.g., Or Const, Art VII (Amended),