S057817, Opinion — Berman v. Kroger

419
On petition to review ballot title filed September 23, considered and under
advisement on December 2, ballot title referred to Attorney General for
modification December 24, 2009, modified ballot title certified
January 20, 2010 (347 Or 535)
Steven C. BERMAN,
Petitioner,
v.
John KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057817)
223P3d1031
CJS, Statutes § 131.

420 	Berman v. Kroger
En Banc
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and the reply memorandum
for petitioner.
Paul L. Smith, Assistant Attorney-in-Charge, Salem, filed
the answering memorandum for respondent. With him on
the 	answering 	memorandum 	were 	John 	R. 	Kroger,
Attorney General, and Jerome Lidz, Solicitor General.
WALTERS,J.
The ballot title is referred to the Attorney General for
modification.

Cite as 347 Or 419 	421
WALTERS,J.
This ballot title review proceeding brought under
ORS 250.085(2) concerns the Attorney General's certified
ballot title for Initiative Petition 55 (2010). The proposed
measure provides:
"Section 1. 	Throughout most of Oregon's History, the
state was responsible for incarcerating felony criminals,
and each county was responsible for incarcerating misde-
meanor criminals. County jails were for misdemeanants,
and state prisons were for felons. In recent years, the state
has forced counties to incarcerate many convicted felons,
imposing significant costs on the counties. In order to cor-
rect this abuse of state power, the People hereby enact this
statute as the Oregon Sentencing Responsibility Act.
"Section 2. 	The 	state 	shall fully 	reimburse 	each
county, on a timely basis, for the county's actual costs of
presentencing incarcerations of any person convicted of a
felony.
"Section 3. 	After sentencing for a felony conviction, the
term of incarceration must be served in facilities provided
or funded by the Oregon Department of Corrections. The
department may rent jail space from any county, as needed,
to hold persons convicted of felonies. The department and
the county shall negotiate the rent under this section in an
amount sufficient to reimburse the county for the actual
costs of incarceration.
"Section 4. 	This Act applies to jail or prison time
served by felons on or after July 1, 2011."
The Attorney General certified the following ballot
title for Initiative Petition 55 (2010):
"Requires all felony incarceration time to be
served in state facility or state-funded facility
"Result of 'Yes' Vote: 	'Yes' vote requires all felony
incarceration time be served in state facility or facility
funded by state; state must reimburse counties for pre-
sentencing felony incarceration.
"Result of 'No' Vote: 	'No' vote retains current law:
county custody for felons pre-sentencing and for incarcera-
tion of less than one year; longer incarcerations served in
state-funded facilities.

"Summary: 	Under current law, people who are incar-
cerated while awaiting sentencing on criminal convictions
remain in county jail until sentencing is complete. If a per-
son is sentenced to more than one year incarceration, he or
she is generally transferred to a state correctional facility;
any incarceration of one year or less is generally served in a
county jail whether the result of a felony or a misdemeanor
conviction. Measure requires state to reimburse counties
for costs associated with incarcerating people convicted of
felonies but not yet sentenced. Requires post-sentencing
incarcerations for felony convictions be served in facilities
funded 	by 	Oregon Department of Corrections (DOC).
Permits DOC to rent jail space for counties, as needed.
Measure does not provide revenue source for additional
expenditures. Other provisions."
Petitioner is an elector who timely submitted writ-
ten comments to the Secretary of State concerning the con-
tent of the draft ballot title. Petitioner challenges both the
caption and the "yes" vote result statement. He contends that
the primary subject matter of the measure and the major
effect of the measure if it is approved is the state's increased
responsibility for the costs of felony incarceration. That new
funding obligation, petitioner argues, must be identified
clearly and directly, both in the caption and in the "yes" vote
result 	statement. 	Further, 	petitioner 	contends 	that 	to
explain that obligation adequately, the caption and "yes" vote
result statement must indicate that measure approval would
reduce state funds available for other services.
The Attorney General responds that the subject
matter of the proposed measure is "felony incarceration." As
to the funding requirement, the Attorney General argues
that "[a]ny resulting effect on the state budget is not, strictly
speaking, 	part of the 	subject matter." In the Attorney
General's view, the caption is correct and the "yes" vote result
statement is adequate.
The caption must "reasonably identifly] the subject
matter of the state measure." ORS 250.035(2)(a). The "yes"
vote result statement must "describe[] the result if the state
measure is approved." ORS 250.035(2)(b). For the reasons
that follow, we agree with petitioner's primary contention
that the caption and the "yes" vote result statement must

Cite as 347 Or 419 	423
state more directly the subject of the measure and the result
ifthe measure is approved, viz., an increase in the state's fis-
cal responsibility for felony incarceration. However, we disa-
gree with petitioner's additional contention that the Attorney
General must state the effect of that obligation on other state
services.
We have not been able to determine, either from
information provided by the parties or from our own inde-
pendent review of the statutes, the precise manner in which
the state and Oregon's 36 counties presently share costs asso-
ciated with incarcerating accused and convicted felons. How-
ever, we can state with clarity how those costs would be dealt
with under the proposed measure.
The proposed measure changes current law. It con-
sists of four short sections. Section 1 states the purpose of the
measure. It recites that, "[i]n recent years, the state has
forced counties to incarcerate many convicted felons, impos-
ing significant costs on the counties." (Emphasis added.) The
stated purpose of the measure is to "correct this abuse."
Sections 2 and 3, the operative provisions of the measure, are
consistent with that stated purpose. Those sections impose
on the state fiscal responsibility for the pre- and post-
sentence costs of incarcerating persons convicted of felonies.
Those sections mandate that the state bear the cost of felony
incarceration, 	regardless 	where 	the 	inmate 	actually 	is
housed.
Thus, the focus of the proposed measure is not on
where those who are convicted of felonies must serve their
time, but rather on the transfer of fiscal responsibility from
counties to the state and the imposition on the state of
responsibility for the costs offelony incarceration. The Attor-
ney General of course is correct that the general subject mat-
ter of the measure is "felony incarceration" and that the pro-
posed measure accomplishes the shift in fiscal responsibility
by referring to the place where convicted felons must serve
their sentences. However, the "subject matter" of the pro-
posed measure lies between that general description of its
nature and the means chosen to accomplish its purpose. To
state correctly the subject matter of the measure, the caption
must point citizens not to the place of felony incarceration,

424 	Berman v.
but to its cost and, more particularly, to the entity that must
accept the fiscal responsibility for that cost if the measure is
approved. Moreover, the caption must advise citizens that
the measure increases, or adds to, the state's existing fiscal
obligations.
The "yes" vote result statement similarly misdirects
the voters' attention to the place of incarceration, rather than
to the increase in the state's obligation to pay the cost of
incarceration. The result of a "yes" vote is to require that the
state assume the cost of incarcerating persons convicted of
felonies and not merely share those costs with the counties.
The Attorney General argues that this is not a case,
like Novick v. Myers, 333 Or 12, 17, 35 P3d 1017 (2001), in
which the effect that the proposed measure would have on
the state budget is so clear that it should be included in the
"yes" vote result statement. The Attorney General contends
that this case is more like Caruthers v. Myers, 343 Or 162,
169, 166 P3d 514 (2007), in which this court concluded that
the "yes" vote result statement need not include an express
statement of the impact of the proposed measure on the state
General Fund. We disagree. In those cases, the issue was not
whether a ballot title must disclose the existence of a new or
increased funding obligation, but whether a ballot title must
identify the effect of a measure on the state General Fund.
Those cases do not affect our conclusion that petitioner's pri-
mary argument is well taken.
On the other hand, the cases cited by the Attorney
General do address petitioner's secondary argument, viz.,
that the caption or "yes" vote result statement must include
the phrase "reduces state funds available for other services"
or otherwise convey that concept. In this case, the proposed
measure and its effect on the state General Fund are closer to
the measure and effect at issue in Caruthers than to the
measure and effect at issue in Novick. Unlike the measure in
Novick, this measure does not divert a specified percentage of
the state General Fund from one purpose to another without
replacing the lost funds. Although it is obvious that the
increased obligation that this measure imposes will reduce
the funds available to meet other state obligations, the sig-
nificance of that impact on the state General Fund is not so

Cite as 347 Or 419 	425
clear as to oblige the Attorney General to explain it in the
caption or "yes" vote result statement.
The ballot title is referred to the Attorney General
for modification.