The opinion
DURHAM, J.,
concurring in part and dissenting in part.
I join the majority in its conclusion that, in some respects, the Attorney General’s ballot title requires amendment. I do not agree with the modifications that the majority approves for the certified ballot title or the reasoning that the majority adopts to justify those modifications.
The Attorney General’s caption states:
“AMENDS CONSTITUTION: STATE AND LOCAL GOVERNMENTS MUST CONTRACT OUT CERTAIN GOVERNMENT SERVICES”
The majority expresses concern about the accuracy of the term “must” in that caption because, it says,
“The measure does not require acceptance of the proposal. The government entity may refer the proposal for a vote instead, and the voters may approve or reject the proposal. Unless the circumstances specified in the measure are met, the measure does not require contracting out.” 326 Or at 362.
I disagree with the majority s analysis of the caption. Contrary to the majority’s suggestion, the Attorney General’s caption does not state or imply that the measure would require a government entity to accept a proposal to subcontract a government service. Moreover, the majority does not address the significance of the term “certain” in the Attorney General’s caption. That term invites the reader to read further in the ballot title to learn more detail about the measure’s effects, such as the government services that are subject to the measure’s contracting out policy. It is the function of the summary, not the caption, to describe the measure’s major effect.
*367 The majority approves the Attorney General’s summary. 1 That summary describes the government services to which the measure does not apply (“Core government functions exempted; other services exempted by 2/3 vote of each house, Governor’s approval.”). The summary also describes the procedural prerequisites that must occur in order to impose on government an obligation to subcontract public services to another entity:
“Measure generally requires governments to accept, or submit to voters at next election, private sector or other government bids to provide same or similar services for 20 percent less.”
The Attorney General’s caption correctly identifies the measure’s subject, and correctly leaves to the summary the task of describing the measure’s effects, including the conditions that make subcontracting mandatory.
The majority amends the caption to state:
“AMENDS CONSTITUTION: UNDER SPECIFIED CIRCUMSTANCES, GOVERNMENTS MUST CONTRACT OUT CERTAIN GOVERNMENT SERVICES.” 326 Or 363 .
The majority’s caption incorporates the phrase “under specified circumstances,” but that phrase, like the word “certain,” says only that the duty to subcontract is not absolute, and tacitly encourages the reader to examine the ballot title in greater detail to learn more about the “specified circumstances.” The Attorney General’s ballot title already conveys that information. The majority’s certified caption identifies the same subject as does the Attorney General’s caption. The addition of the phrase “under specified circumstances” does not alter that fact. The Attorney General’s caption adequately describes the subject of the measure, and passes muster under this court’s “substantial compliance” standard of review. ORS 250.035(2)(a), 250.085(5).
For the reason identified by the majority, the Attorney General’s use of the phrase “lower-cost bids” in the “yes” vote result statement is not accurate and, for that reason, the *368 statement fails to comply substantially with ORS 250.035-(2)(b). However, the majority fails to disclose that the Attorney General anticipated that potential problem, and offered the following alternative “yes” vote result statement:
“RESULT OF A TES’ VOTE: Tes’ vote requires governments to accept certain unsolicited proposals to perform services.”
The Attorney General’s submission of that alternative wording is commendable. Because the preparation of a ballot title, in large measure, is the Attorney General’s task, and is subject to review in this court only for substantial compliance with statutory standards, this court should not disregard the Attorney General’s advocacy for alternative wording to cure a potential problem in the ballot title. In my view, the Attorney General’s suggested alternative “yes” vote result statement is correct, and I would certify it.
The majority alters the Attorney General’s “no” vote result statement. It claims that it does so to reflect the change that it makes to the “yes” vote result statement. However, the majority’s altered “no” vote result statement does not reflect the majority’s modifications to the “yes” vote result statement. In addition, the majority does not explain why the Attorney General’s “no” vote result statement fails to state adequately the result of rejecting the measure even in light of the majority’s changes to the “yes” vote result statement. It appears that the majority chooses to alter the Attorney General’s “no” vote result statement simply to make it “better.” That is not a sufficient reason to justify changing the Attorney General’s “no” vote result statement. Accordingly, I disagree with the majority’s alteration of the “no” vote result statement.
Petitioner Dale challenges the Attorney General’s use of the term “bids” in the summary. I would conform the summary to the change made in the “yes” vote result statement by eliminating the term “bids” and substituting the words “unsolicited proposals.” To create room for that change, I would strike the extraneous words “same or” from the third sentence of the summary.
*369 Petitioner Dale also criticizes the Attorney General’s summary because it fails to disclose that the measure would compel the legislature to refer to the people a measure that would lower the minimum savings threshold from contracting out from 20 percent to 10 percent. She urges the court to add the following sentence to the summary: “Legislature must propose constitutional amendment reducing savings requirement.”
That suggested sentence accurately states a major effect of the measure that the Attorney General’s ballot title fails to mention. The Attorney General understates the problem by arguing that the possibility that the savings threshold might change is not a major effect. The focus of concern is that the measure, if adopted, will compel the legislature to refer another constitutional amendment to the people. In my view, that is an important modification of the legislature’s discretionary power under the state constitution to refer laws to the people, and it is a major effect that the summary should bring to the voters’ attention, if possible. However, the Attorney General could include that information only by sacrificing descriptions in the ballot title summary of other important effects of the measure. This is an instance in which the statutory 85-word limit, ORS 250.035(2)(d), prevents disclosure of all of the measure’s major effects. For that reason, I cannot say that the Attorney General’s summary fails to comply substantially with statutory requirements because it does not mention the point that petitioner Dale raises.
I would certify the Attorney General’s ballot title with the modifications discussed above to the “yes” vote result statement and summary. Accordingly, I concur in part and dissent in part from the majority’s decision.
The majority changes the term “bids” to “proposals,” in the third sentence of the summary. As I discuss below, “bids” is incorrect in this context and should be changed to “unsolicited proposals.”