Ascher v. KULONGOSKI (ELECTIONS DIV. 49)

UNIS, J.,

dissenting.

I respectfully dissent on two grounds. First, I dissent for the reasons expressed in Sizemore v. Kulongoski, 322 Or 229, 239, 905 P2d 1146 (Unis, J., dissenting), recon allowed 322 Or 387, 908 P2d 825 (1995). In that decision, I stated:

“[T]o the extent that ORS 250.085(5) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different from the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution.” Id.

I continue to adhere to that view.

I also dissent for the reasons expressed in Ascher v. Kulongoski (Elections Division #46), 322 Or 516, 527, 909 P2d 1216 (1996) (Unis, J., dissenting). The majority in this case certifies a ballot title that closely resembles the ballot titles certified in Ascher (Elections Division #46), Ascher v. Kulongoski (Elections Division #47), 322 Or 531, 909 P2d 1223 (1996), and Ascher v. Kulongoski (Elections Division #48 and #50), 322 Or 540, 910 P2d 372 (1996). While certifying ballot titles that closely resemble each other, the majority avoids any discussion concerning the impact of ORS 250.035(6) on this court’s role in reviewing ballot titles and on its decision in this case. ORS 250.035(6) provides:

“To avoid confusion, a ballot title shall not resemble any title previously filed for a measure to be submitted at that election.”

For the reasons expressed in Ascher (Elections Division #46), 322 Or at 527 (Unis, J., dissenting), I believe that ORS 250.035(6) raises important questions that the majority should address in this case.