Hall v. Paulus

LENT, J.,

dissenting.

I write separately and label my remarks as a dissent because although I agree that the Attorney General’s ballot title may be insufficient in some respects, I do not agree with that proposed by the majority.

A ballot title consists of a caption of not more than 10 words, a question of not more than 20 words and an explanation of not more than 75 words. ORS 250.035.

The majority quarrels with the Attorney General’s title because of its reference to the constitution by section number rather than by substantive content of the pertinent constitutional clauses. The majority states that the two clauses are constitutional “guarantees,” and that well may be. I shall not quarrel with that characterization although I believe it to be a loaded one. The majority states that few people would know the Oregon Constitution well enough to recognize “these guarantees by their section numbers.” I agree. Apparently, however, the majority believes many people will better and more easily recognize the referent of the words, “CONSTITUTIONAL GUARANTEES,” which the majority would use. I disagree. In either case, the truly concerned person, faced with either choice alone, would have to go to the text of the constitution to discover what portions are concerned. It seems to me that it would be much easier to find the pertinent parts of the constitution if a person had the Article and Section numbers than to search the entire constitution for the pertinent subject matter guarantees.

Neither the Attorney General nor the majority have sought to explain how their respective proposed captions comply with ORS 250.035(1)(a):

“The ballot title of any measure to be initiated or referred shall consist of:

“(a) A caption of not more than 10 words by which the measure is commonly referred to;” (Emphasis added.)

This is understandable because the measure has not yet acquired such an appellation. If one wants to be fair to both the public and the sponsors, however, one can attempt a caption which will refer to the measure according to what it is designed to accomplish, leaving the legalese to be fleshed out in the question and explanation. I find nothing in ORS 250.035(1) (a) demanding a legally perfect exposition of the measure. If that were the case, the question and explanation would not be needed. Nevertheless, the challengers, amicus and the majority attack the caption because of technical niceties.

If we are going to hold the Attorney General’s caption to be insufficient, then I believe it should be because it fails to satisfy the part of ORS 250.035(1)(a) that I have above emphasized. I would suggest the following caption as being likely to meet the statutory command:

“ATTEMPTS REMOVAL OF OREGON CONSTITUTIONAL BARRIERS TO DEATH PENALTY LAWS”

That is what this measure is all about, and that is how it is going to be advocated and opposed.

Coming to the 20 word question, I believe that one can accomplish the majority’s desire to refer to subject matter rather than Article and Section number and state the question so as to comply with the statutory command of ORS 250.035(1)(b):

“A question of not more than 20 words which plainly states the purpose of the measure, and is phrased so that an affirmative response to the question corresponds to an affirmative vote on the measure.”

I propose the following as being more truly in harmony with the proposed measure and a fairer statement than any discussed in the majority opinion:

“QUESTION: Shall death penalty laws be deemed not to contravene Oregon constitutional guarantees against vindictive justice and cruel and unusual punishment?”

This question would use the words of the proposed measure without presently interpreting the effect of those words. Both the Attorney General and the majority impliedly interpret the words of the proposed measure, “not be deemed to contravene,” by the questions they suggest. I do not believe we need render any such advisory opinion.

Having gone this far, I would reword the explanation so as to incorporate some of the “minor changes” which the majority finds necessary to correct the Attorney General’s explanation for its insufficiency or unfairness, ORS 250.085. I would suggest a minor change in the majority’s last sentence of the explanation so as to carry through my thought that the words of the proposed measure be used rather than an interpretation of those words. I suggest the following explanation:

“EXPLANATION: Amends State Constitution. Existing Article I, Sections 15 and 16, require that laws for the punishment of crime shall be founded on the principles of reformation and not vindictive justice and ban cruel and unusual punishments. The measure would provide that laws relating to imposition of the death penalty would not be deemed to contravene those constitutional limitations.”

I believe my proposal complies with the statute, ORS 250.035(1), does not attempt any subtle argument of the merits of the measure and avoids prior judicial interpretation of the language chosen by the sponsors of the measure.

I would certify the following ballot title to the Secretary of State:

“ATTEMPTS REMOVAL OF OREGON CONSTITUTIONAL BARRIERS TO DEATH PENALTY LAWS

“QUESTION: Shall death penalty laws be deemed not to contravene Oregon constitutional guarantees against vindictive justice and cruel and unusual punishment? “EXPLANATION: Amends State Constitution. Existing Article I, Sections 15 and 16, require that laws for the punishment of crime shall be founded on the principles of reformation and not vindictive justice and ban cruel and unusual punishments. The measure would provide that laws relating to imposition of the death penalty would not be deemed to contravene those constitutional limitations.”

Peterson, J., joins in this dissenting opinion.