The opinion
Filed: April 6, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
KEVIN K. STARRETT,
Petitioner,
v.
HARDY MYERS,
Attorney Generalfor the State of Oregon,
Respondent,
and
JOHN NICHOLS
and VERAL TARNO,
Intervenors.
_______________________________
JOHN T. NICHOLS,
Petitioner,
v.
HARDY MYERS,
Attorney General for the State of Oregon,
Respondent.
(SC S47166, S47170)
(Consolidated for Argument and Opinion)
En Banc
On petitions to review ballot title
Argued and submitted March 16, 2000.
Kevin K. Starrett, Canby, petitioner pro se , argued the
cause and filed the petition and reply.
John DiLorenzo, Jr., of Hagen, Dye, Hirshey & DiLorenzo,
P.C., Portland, argued the cause and filed the petition for
petitioner Nichols.
Rolf C. Moan, Assistant Attorney General, Salem, argued the
cause and filed the answering memoranda for respondent. With him
on the memoranda were Hardy Myers, Attorney General, and Michael
D. Reynolds, Solicitor General.
John DiLorenzo, Jr., of Hagen, Dye, Hirshey & DiLorenzo,
P.C., Portland, argued the cause and filed the memorandum for
intervenors.
GILLETTE, J.
Ballot title certified as modified. This decision shall
become effective in accordance with ORAP 11.30(10).
Van Hoomissen, J., dissented and filed an opinion.
GILLETTE, J.
These two ballot title review proceedings concerning
the Attorney General's certified ballot title for a proposed
initiative measure, denominated Initiative Petition 110 (2000),
have been consolidated for purposes of argument and decision.
Petitioners are electors who timely submitted written comments
concerning the content of the Attorney General's draft ballot
title and who therefore are entitled to seek review in this
court. See ORS 250.085(2) (setting that requirement). We review
the Attorney General's certified ballot title to determine
whether it substantially complies with the requirements of ORS
250.035 (1997). See ORS 250.085(5) (setting out standard of
review). For the reasons that follow, we conclude that the
Attorney General's certified ballot title does not do so. We
therefore modify it and, as modified, certify it to the Secretary
of State.
The proposed measure, titled the "Firearms Act of
2000," would enact statutes that, inter alia , expand present
provisions for background checks respecting the sale of firearms,
provide limited immunity from liability for sellers of firearms
if the purchaser causes harm to another, and alter criminal
penalties imposed for the commission of certain crimes while
armed with a firearm. The Attorney General certified the
following ballot title for the measure:
"INCREASES FIREARM TRANSACTION BACKGROUND CHECKS; REQUIRES RECORDS DESTRUCTION, SENTENCING CHANGES
"RESULT OF 'YES' VOTE: 'Yes' vote increases
firearm transfers requiring background checks, requires
destruction of records, changes sentencing laws.
"RESULT OF 'NO' VOTE: 'No' vote rejects increasing
firearm transfers requiring background checks,
requiring records destruction, changing sentencing
laws.
"SUMMARY: Extends background-check requirement to
all gun-dealer firearm transfers, not just handgun
transfers. Creates background-check requirement, with
exceptions, for nondealer transfers at events offering
over 25 firearms. Prohibits background-check fees;
current law allows $10 background-check fee. For
lawful transfers, generally requires record destruction
within 24 hours; current law authorizes record
retention for five years. Creates minimum sentence for
felon-possessing-firearm conviction. Revises statute
governing minimum sentences for use, threatened use, of
firearm during felony. Expands certain crimes; other
changes."
As noted, ORS 250.085(5) requires this court to review
challenged ballot titles for "substantial compliance with the
requirements of ORS 250.035." As applied to the present
proceeding, the latter statute (1) requires that a ballot title
contain a caption of not more than 10 words that "reasonably
identifies the subject matter" of the proposed measure, ORS
250.035(2)(a) (1997), a "yes" result statement containing a
"simple and understandable statement of not more than 15 words
that describes the result if the state measure is approved," ORS
250.035(2)(b) (1997), a "no" result statement containing a
"simple and understandable statement of not more than 15 words
that describes the result if the state measure is rejected," ORS
250.035(2)(c) (1997), and a summary that is a "concise and
impartial statement of not more than 85 words summarizing the
state measure and its major effect," ORS 250.035(2)(d) (1997).
In case number S47166, petitioner Starrett challenges
only the legal sufficiency of the Attorney General's caption. We
have considered petitioner Starrett's arguments concerning the
caption, but conclude that none establishes that the Attorney
General's caption fails to comply substantially with the
requirements of ORS 250.035(2)(a) (1997).
We turn to the arguments presented by petitioner
Nichols in case number S47170. Petitioner Nichols challenges the
Attorney General's caption, his "yes" and "no" result statements,
and his summary. We have considered his arguments concerning the
caption and the "yes" and "no" result statements, but conclude
that none establishes that the Attorney General has failed to
comply substantially with the requirements of ORS 250.035(2)(a),
(b), or (c) (1997). We turn to petitioner Nichols's arguments
concerning the summary.
Petitioner Nichols challenges the Attorney General's
summary in two respects, one of which we find to be well taken.
He asserts that the Attorney General's summary fails to summarize
the measure and its major effect, in that it does not mention
that the proposed measure provides for qualified immunity from
civil liability for persons who voluntarily comply with the
background check provisions of the proposed measure, even when
such persons are not required to do so. We agree with petitioner
Nichols that such a limitation on personal liability is
sufficiently important to be deemed a major effect of the
proposed measure that should be included in the summary, provided
that there is room within the 85-word limit to mention it. We
also agree with petitioner Nichols that there is such room. The
Attorney General's summary expends 11 words on a sentence
describing the fact that the proposed measure eliminates the $10
background check fee that the State Police presently is
authorized to charge. The fact that the fee is eliminated might
be a major effect; the amount of the fee under existing law --
although useful information -- does not rise to the same level as
the limitation on personal liability. We conclude that the
summary must be modified by deleting the sentence discussing
background check fees and inserting the following: "Prohibits
background-check fees. Voluntary compliance creates qualified
immunity from civil liability."
Based on the foregoing discussion, we certify to the
Secretary of State the following ballot title:
INCREASES FIREARM TRANSACTION BACKGROUND CHECKS; REQUIRES RECORDS DESTRUCTION, SENTENCING CHANGES
RESULT OF "YES" VOTE: "Yes" vote increases firearm
transfers requiring background checks, requires
destruction of records, changes sentencing laws.
RESULT OF "NO" VOTE: "No" vote rejects increasing
firearm transfers requiring background checks,
requiring records destruction, changing sentencing
laws.
SUMMARY: Extends background-check requirement to
all gun-dealer firearm transfers, not just handgun
transfers. Creates background-check requirement, with
exceptions, for nondealer transfers at events offering
over 25 firearms. Prohibits background-check fees.
Voluntary compliance creates qualified immunity from
civil liability. For lawful transfers, generally
requires record destruction within 24 hours; current
law authorizes record retention for five years.
Creates minimum sentence for felon-possessing-firearm
conviction. Revises statute governing minimum
sentences for use, threatened use, of firearm during
felony. Expands certain crimes; other changes.
Ballot title certified as modified. This decision
shall become effective in accordance with ORAP 11.30(10).
VAN HOOMISSEN, J., dissenting
I respectfully dissent. In my view, the Attorney
General's certified ballot title substantially complies with the
requirements of ORS 250.035 (1997). ORS 250.085(5).
The unspoken premise on which this court's modification
decision is based is that it does not violate the principle of
separation of powers for this court to rewrite a certified ballot
title. See Rooney v. Kulongoski (Elections Division #13) , 322 Or
15, 55 , 902 P2d 1143 (1995) (Unis, J., dissenting) (arguing that
judicial modification of ballot titles offends Article III,
section 1, of the Oregon Constitution); Sizemore v. Kulongoski ,
322 Or 229, 237 , 905 P2d 1146 (1995) (Durham, J., concurring)
(same). The court should revisit that premise.
1. The 1999 Legislature amended ORS 250.035(2) in several
respects. Or Laws 1999, ch 793 § 1. However, section 3 of that
1999 enactment provides, in part:
"(1) The amendments to ORS 250.035 by section 1 of
this 1999 Act do not apply to any ballot title prepared
for:
"(a) Any initiative petition that, if filed with
the Secretary of State with the required number of
signatures of qualified electors, will be submitted to
the people at the general election held on the first
Tuesday after the first Monday in November 2000[.]"
The present proposed measure is one of those to which the 1999
act does not apply. We therefore apply the pertinent provisions
of ORS 250.035(2) (1997).
Return to previous location .