
 Filed:  August 2, 2001  
IN THE SUPREME COURT OF THE STATE OF OREGON
BRIDGET FLANAGAN,
	Petitioner,
	v.
HARDY MYERS,
Attorney General for the State of Oregon,
	Respondent,
	and
GREG WASSON,
	Intervenor.
(SC S47890, S47891, S47892)
(Consolidated for Argument and Opinion)
	En Banc
	On petitions to review ballot titles.
	Argued and submitted January 4, 2001.
	Charles F. Hinkle, Portland, argued the cause and filed the
petitions and briefs for petitioner.  With him on the petitions
and briefs was Stoel Rives LLP.
	Richard D. Wasserman, Assistant Attorney General, Salem,
argued the cause and filed the responses for respondent.  With
him on the responses were Hardy Myers, Attorney General, Michael
D. Reynolds, Solicitor General, and Philip Schradle, Special
Counsel to the Attorney General.
	Greg Wasson, intervenor, filed a response pro se.
	GILLETTE, J.
	Ballot titles referred to the Attorney General for
modification.
		GILLETTE, J.
		These consolidated ballot title review proceedings
under ORS 250.085(2) concern the Attorney General's certified
ballot titles for three proposed initiative measures, which the
Secretary of State has denominated as Initiative Petitions 7, 8,
and 9 (2002).  Petitioner timely submitted written comments to
the Secretary of State concerning the Attorney General's draft
ballot titles and is entitled to seek review in this court.  See
ORS 250.085(2) (stating that requirement).  We review the
Attorney General's certified ballot titles to determine whether
they "substantial[ly] compl[y] with the requirements of ORS
250.035."  See ORS 250.085(5) (stating that standard). (1)  In these
proceedings, the parties agree -- and we concur -- that the
Attorney General's certified ballot titles do not comply
substantially with ORS 250.035.  Under such circumstances, ORS
250.085(5) (1999) -- the statute that was in effect when the
petitions were filed -- directed this court to certify to the
Secretary of State ballot titles that do meet the statutory
standard.  The fundamental issue that the parties have joined
here is whether this court constitutionally may carry out that
function.  For the reasons that follow, we conclude that
legislative changes to ORS 250.085 make it unnecessary for this
court to resolve that question. 
		On September 11, 2000, after receiving and considering
petitioner's comments, the Attorney General certified the ballot
titles for Initiative Petition 7, (2) Initiative Petition 8, (3) and
Initiative Petition 9. (4)
  Each of the proposed measures purports
to expand rights of political speech on private property,
particularly the right to gather signatures to qualify initiative
petitions for the ballot.  As written, the measures seek to
expand and confirm the right to gather signatures in shopping
centers that this court had recognized in Lloyd Corporation v.
Whiffen, 315 Or 500, 849 P2d 446 (1993).  The emphasized parts of
each of the ballot titles set out above identify the rule of law
stated in Whiffen.  Id. at 514.
		Three days after the Attorney General's certifications,
however, this court issued Stranahan v. Fred Meyer, Inc., 331 Or
38, 11 P3d 228 (2000).  That case overruled Whiffen and held that
petitioners seeking signatures to qualify initiative petitions
for the ballot do not have a constitutional right to solicit
signatures on private property, such as shopping centers, without
the owner's permission.
		Petitioner then filed the present challenges to the
Attorney General's ballot titles, arguing that the summaries in
the ballot titles misstate the law.  Before Stranahan, it
arguably would have been correct to state, as two of the
summaries did, that the proposed constitutional amendments would
"extend" the signature-gathering right.  It also arguably would
have been correct to state, as all three of the summaries did,
that the Oregon Constitution "now entitles persons to collect
initiative signatures on public property and at large private
shopping centers, subject to reasonable restrictions to prevent
interference with the owners' business."  After Stranahan,
however, neither statement is correct.  
		A ballot title must not misstate existing law, either
directly or by implication.  Adams v. Kulongoski, 323 Or 253,
259, 915 P2d 967 (1996); see also ORS 250.035 (setting out
statutory requirements for ballot titles).  It is uncontested
that, after this court's decision in Stranahan, the ballot titles
for Initiative Petitions 7, 8, and 9 misstate existing law. 
		Until the 2001 Legislative Assembly amended it, ORS
250.085(5) required this court both to "review the title for
substantial compliance with the requirements of ORS 250.035" and,
if the Attorney General's ballot title did not so comply, to
"certify a title meeting this standard to the Secretary of
State."  ORS 250.085(5) (1999).  Under the 1999 statutory scheme,
if a petitioner correctly identified deficiencies in the Attorney
General's ballot title, then there was only one way that this
court could carry out its duty under ORS 250.085(5) to "certify a
title meeting [the statutory] standard":  The court was required
to write a different ballot title.
		In the past, pursuant to that legislative directive,
this court has rewritten many infirm ballot titles.  See, e.g.,
Starrett v. Myers, 330 Or 139, 998 P2d 671 (2000) (revising
ballot titles to comply with ORS 250.035);  Zehner v. Myers, 330
Or 162, 5 P3d 600 (2000) (same).  Nonetheless, some members of
this court from time to time had expressed misgivings with the
foregoing procedure, suggesting that this court's writing or
rewriting of ballot titles might violate the constitutional
principle of separation of powers.  See Dudley v. Jenks, 331 Or
1, 10-11, 10 P3d 257 (2000) (summarizing cases in which those
concerns had been expressed).  Before petitioner brought the
present proceedings, however, parties had not focused their
briefing on that constitutional issue.  Now, the enactment of HB
2213 obviates any need to address those concerns. 
		In HB 2213, the legislature deleted the phrase
"and shall certify a title meeting this standard to the Secretary
of State" from ORS 250.085(5) and added three new subsections --
(8), (9), and (10) -- to that statute.  We set them out in their
entirety here, because they form the basis for our disposition of
this case:

		"(8) If the Supreme Court determines that the
title certified by the Attorney General or prepared by
the Legislative Assembly substantially complies with
the requirements of ORS 250.035, the court shall
certify the title to the Secretary of State.  If the
Supreme Court determines that the title certified by
the Attorney General or prepared by the Legislative
Assembly does not substantially comply with the
requirements of ORS 250.035, the court shall modify the
ballot title and certify the ballot title to the
Secretary of State or refer the ballot title to the
Attorney General for modification.
		"(9) Not later than five business days after the
Supreme Court refers a ballot title to the Attorney
General under this section, the Attorney General shall
file a modified ballot title with the Supreme Court and
serve copies of the modified ballot title on all
parties to the ballot title review proceeding.  If no
party to the ballot title review proceeding files an
objection to the modified ballot title within five
business days after the date the modified ballot title
is filed, the Supreme Court shall certify the modified
ballot title to the Secretary of State and enter an
appellate judgment the next judicial day.  If any of
the parties to the ballot title review proceeding
timely files a petition objecting to the modified
ballot title, the Supreme Court shall review the
modified ballot title to determine whether the modified
ballot title substantially complies with the
requirements of ORS 250.035.
		"(10) Upon the filing of a petition under
subsection (9) of this section objecting to a modified
ballot title:
		"(a) If the Supreme Court determines that the
modified ballot title substantially complies with the
requirements of ORS 250.035, the court shall certify
the modified ballot title to the Secretary of State; or
		"(b) If the Supreme Court determines that the
modified ballot title does not substantially comply
with the requirements of ORS 250.035, the court shall
modify the ballot title and certify the ballot title to
the Secretary of State or refer the modified ballot
title to the Attorney General for additional
modification and further proceedings under subsection
(9) of this section."

HB 2213, section 2 (emphasis added).
 As the emphasized parts of the newly enacted
subsections demonstrate, the statute no longer requires this
court, whenever it concludes that the ballot title certified by
the Attorney General fails to comply substantially with the
requirements of ORS 250.035, to write and certify to the
Secretary of State a corrected ballot title. (5)  Instead, the
statute gives the court the discretion either: (1) to revise and
certify to the Secretary of State a legally sufficient ballot
title; or (2) to "refer" the matter to the Attorney General to
correct the deficiencies in the ballot title.
	As we have explained, this is a case in which the
Attorney General's certified ballot titles do not comply
substantially with the requirements of ORS 250.035.  The question
thus becomes:  Which of the two alternative dispositional models
provided in the newly enacted ORS 250.085(8) shall this court
utilize?
	The answer is not difficult.  Referring the matter to
the Attorney General raises no constitutional issues respecting
the proper role of the judiciary and the separation of powers. 
Given the uncertainty and delay that necessarily would attach to
any effort by this court to address the constitutional issues
further, we perceive no reason to follow that option in this
case. 
	Having identified the ways in which each of the three
ballot titles certified by the Attorney General fails to comply
substantially with the requirements of ORS 250.035, we refer the
ballot titles to the Attorney General for modification.
	Ballot titles referred to the Attorney General for
modification.




1. 	The 2001 Legislature amended ORS 250.085(5) in certain
respects that we discuss post.  Or Laws 2001, ch 802, § 2
(hereafter "HB 2213").  The Governor signed the bill on July 19,
2001.  It became effective on its passage.  HB 2213, § 4.  The
amendments to ORS 250.085(5) did not alter the "substantial
compliance" standard of review.

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2. 	The ballot title certified by the Attorney General for
Initiative Petition 7 states:
"AMENDS CONSTITUTION: REQUIRES OWNERS OF 
PRIVATE PROPERTY OPEN TO PUBLIC TO
PERMIT FREE SPEECH ON ALL SUBJECTS
		"RESULT OF 'YES' VOTE: 'Yes' vote requires owners
of private property open to public to permit free
speech on all subjects, including petitioning,
political campaigning, commercial advertising,
religion, obscenity.
		"RESULT OF 'NO' VOTE: 'No' vote rejects requiring
owners of private property open to public to permit
free speech on all subjects, including petitioning,
political campaigning, commercial advertising,
religion, obscenity.
		"SUMMARY: Amends constitution.  Constitution now
entitles persons to collect initiative signatures on
public property and at large private shopping centers,
subject to reasonable restrictions to prevent
interference with the owners' business, but grants no
right to engage in other types of speech or expressive
activity on any private property.  Measure would extend
the right of free speech "on any subject whatever" to
interior and exterior areas of all private property
open to the general public, without exception.  Measure
thus would require owners of such property to permit
all expressive activities, including circulation of
petitions and solicitation of signatures for initiative
petitions; political campaigning; commercial
advertising; religious speech; and obscenity.  Measure
would prohibit the application of civil and criminal
trespass laws to nullify or detract from that right."

(Emphasis added.)

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3. 	The ballot title certified by the Attorney General for
Initiative Petition 8 states:
"AMENDS CONSTITUTION: EXPANDS RIGHT
TO PETITION FREELY TO ALL LOCATIONS IN
PRIVATELY-OWNED BUSINESSES OPEN TO PUBLIC
		"RESULT OF 'YES' VOTE: 'Yes' vote expands
signature-gathering right, requiring owner of any
private business open to public to permit citizens to
solicit petition signatures anywhere on premises.
		"RESULT OF 'NO' VOTE: 'No' vote rejects expanding
signature-gathering right to require privately-owned
businesses open to public to permit citizens to solicit
petition signatures anywhere on premises.
		"SUMMARY: Amends constitution.  The Oregon
Constitution now entitles persons to collect initiative
signatures on public property and at large private
shopping centers, subject to reasonable restrictions to
prevent interference with the owners' business, but
grants no right to solicit signatures on other private
property.  The measure would extend citizens' right to
petition, entitling citizens to petition freely in any
privately-owned business to which the public is
invited.  The measure thus would require owners of such
businesses to permit citizens to solicit petition
signatures, without interference, at all interior and
exterior areas of those businesses, without exception. 
The measure would prohibit the application of civil and
criminal trespass laws to nullify or detract from that
right."

(Emphasis added.)

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4. 	The ballot title certified by the Attorney General for
Initiative Petition 9 states:
"AMENDS CONSTITUTION: EXPANDS PETITIONING RIGHT
TO ALL PRIVATELY-OWNED BUSINESSES OPEN TO PUBLIC,
SUBJECT TO REASONABLE REGULATION
		"RESULT OF 'YES' VOTE: 'Yes' vote expands
signature-gathering right, requiring owners of private
businesses open to public to permit citizens to solicit
petition signatures, subject to reasonable regulation.
		"RESULT OF 'NO' VOTE: 'No' vote rejects expanding
signature-gathering right to require privately-owned
businesses open to public to permit citizens to gather
signatures subject to reasonable regulation.
		"SUMMARY: Amends constitution.  The Oregon
Constitution now entitles persons to collect initiative
signatures on public property and at large private
shopping centers, subject to reasonable restrictions to
prevent interference with the owners' business, but
grants no right to solicit signatures on other private
property.  The measure would extend citizens' right to
petition, entitling citizens to petition freely in any
privately-owned business to which the public is
invited, subject to reasonable time and place
regulations.  The measure thus would require owners of
such businesses to permit citizens to solicit petition
signatures, at all interior and exterior areas of those
businesses, imposing only reasonable time and place
regulations.  The measure would prohibit the
application of civil and criminal trespass laws to
nullify or detract from that right."

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5. 	The newly enacted subsection (3) of ORS 250.085
specifically is made applicable to pending ballot title review
cases by HB 2213, § 3(2).
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