S057816, Opinion — Brady/Berman v. Kroger

518
On petitions to review ballot title filed September 23, considered and under
advisement on November 17, ballot title referred to Attorney General for
modification December 31, 2009, modified ballot title certified
January 19, 2010 (347 Or 535)
Wayne BRADY,
Duane Fletchall, Fred Girod,
and Sarah Hunt Vasche,
Petitioners,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
Steven C. BERMAN,
Petitioner,
v.
JohnR. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057816)
225 P3d 36

Cite as 347 Or 518 (2009) 	519
CJS, Statutes § 131.
En Banc
Sarah Hunt Vasche, Salem, filed the petition and reply
memorandum for petitioners Wayne Brady, Duane Fletchall,
Fred Girod, and Sarah Hunt Vasche. With her on the petition
and reply memorandum was Ross A. Day.
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and reply memorandum for
petitioner Steve Berman.
Paul L. Smith, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on

520 	Brady/Berman v. Kroger
the memorandum were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
KISTLER,J.
The ballot title is referred to the Attorney General for
modification.

Cite as 347 Or 518 (2009) 	521
KISTLER,J.
Two 	petitions 1 	have 	been filed 	challenging 	the
Attorney General's certified ballot title for Initiative Petition
56 (2010). See ORS 250.085(2) (specifying requirements for
seeking review of a certified ballot title). This court reviews
the certified ballot title to determine whether it substantially
complies with ORS 250.035(2). See ORS 250.085(5) (stating
standard of review). For the reasons set out below, we refer
the ballot title to the Attorney General for modification.
Initiative Petition 56, if enacted, would affect crimi-
nal law in three respects. 2 First, it would require an inmate
incarcerated for a felony to serve at least 80 percent of his or
her sentence, 3 but it would not affect mandatory minimum
sentences. Second, it would permit trial courts to require,
as part of an inmate's sentence, that the Department of
Corrections (DOC) provide appropriate drug treatment serv-
ices. Third, as a general rule, it would give trial courts discre-
tion to require that sentences be served consecutively or
concurrently. 4
The Attorney General certified the following ballot
title for Initiative Petition 56:
"Increases required felony incarceration time;
creates consecutive sentence presumption; expands
court's consecutive sentence imposition authority
"Result of 'Yes' Vote: 	'Yes' vote requires incarcera-
tion for at least 80 percent of felony sentence; creates
consecutive sentence presumption; gives court additional
broad discretion to impose consecutive sentences.
1 Steve Berman filed one petition. Wayne Brady, Duane Fletchall, Fred Girod,
and Sarah Hunt Vasche (the Brady petitioners) filed the other.
2 A copy of the initiative petition is attached as an appendix to this opinion.
" Current law provides that felons sentenced under the sentencing guidelines
are eligible for up to a 30 percent reduction in their sentences. Or Laws 2009,
ch 660, § 18(7)(b).
4 The measure also provides that "[a] sentence is a consecutive term unless the
judgment expressly provides for concurrent sentences." That part of the measure
provides a rule for interpreting judgments that do not state whether multiple sen-
tences should be served consecutively or concurrently. It does not condition a trial
court's authority to impose concurrent sentences on making certain findings.

522 	Brady/Berman v. Kroger
"Result of 'Not Vote: 	'No' vote retains current law
requiring incarceration for minimum 70 percent of felony
sentence, presumption of concurrent sentences but allow-
ing consecutive sentences in defined circumstances.
"Summary: 	Current law allows early release of some
inmates who have served at least 70 percent of their felony
sentences; does not allow any reduction of mandatory min-
imum sentences; requires 	drug treatment for certain
offenders. Current law presumes that criminal sentences
are to be served concurrently and allows consecutive sen-
tences only upon specified factual findings by the court.
Measure requires all inmates to serve at least 80 percent of
original term of incarceration imposed by sentencing court;
retains requirement that mandatory minimum sentences
may not be reduced. Measure retains requirement that
Department of Corrections provide drug treatment services
to specified individuals. Measure presumes that criminal
sentences are to be served consecutively, but gives trial
court additional broad discretion to impose concurrent or
consecutive sentences. Other provisions."
Petitioners challenge the caption, the "yes" vote result state-
ment, the "no" vote result statement, and the summary.
ORS 250.035(2)(a) requires the Attorney General to
draft a 15-word caption that "reasonably identifies the sub-
ject matter of the state measure." In this case, the Attorney
General sought to identify the subject matter of the measure
by referring to two of its effects: the increased length of time
incarcerated felons will serve and the grant of discretion to
trial courts to impose consecutive or concurrent sentences.
See Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003) (rec-
ognizing that listing a measure's effects is one way to identify
its subject matter). The Brady petitioners argue that the cap-
tion is underinclusive because it omits any reference to a
third and equally important effect of the measure-granting
trial courts authority to require DOC to provide drug treat-
ment to certain inmates. The Attorney General responds that
drug treatment is a minor aspect of the measure and that, in
any event, that aspect of the measure does not change cur-
rent law.
In considering the parties' arguments, we begin with
a brief discussion of current law and the change that the ini-
tiative petition would make. In 2008, the people enacted an

Cite as 347 Or 518 	523
initiated measure that, among other things, required DOC to
provide drug treatment services to certain drug-dependent
inmates. Or Laws 2008, ch 14, § 8(1)(a). In 2009, the legisla-
ture repealed that provision of the 2008 law. Or Laws 2009,
ch 660, § 4 7(1). As part of the same bill, the 2009 legislature
enacted a replacement drug treatment provision that is iden-
tical in most respects to the 2008 provision that it repealed.
Id. § 12. However, the 2009 drug treatment provision does
not go into effect until January 1, 2012. Id. § 48(4). Initiative
Petition 56, if enacted, would permit trial courts to require
DOC to provide drug treatment services to certain inmates a
year earlier, on January 1, 2011. 5
As noted, the Attorney General contends that the
ballot title need not mention the provision requiring drug
treatment services because the measure, if enacted, would
not change current law. We reach a different conclusion. If
enacted, the measure would require DOC to provide drug
treatment services to certain inmates a year earlier than the
2009 legislation would. 6 Additionally, we conclude that that
aspect of the measure is of sufficient significance that it
should be mentioned in the caption, at least as long as the
Attorney General chooses to describe the subject matter of
the measure by listing its effects.
'' The drug treatment provisions in Initiative Petition 56 and the 2009 legisla-
tion differ in an additional, more minor respect. Initiative Petition 56 would give a
sentencing court authority to require DOC to provide drug treatment services to
certain inmates, while the 2009 legislative provision places a statutory obligation
directly on DOC to provide drug treatment services to a described class of inmates.
6 The Attorney General observes that, even without the 2009 legislation, a trial
court can always include a requirement for drug treatment in a defendant's sen-
tence. He is careful to note, however, that "[w]hether a court could order the
Department of Corrections to provide a drug-treatment program that is not other-
wise required by law is less certain." The Attorney General identifies no statute
that would require DOC to comply with such an order, as Initiative Petition 56
would.
In that respect, we note that ORS 137 .228(2) provides that, if a trial court finds
that a convicted defendant is "an alcoholic or a drug-dependent person, the court,
when it sentences the defendant to a term of imprisonment, shall direct the
Department of Corrections to place the defendant in an alcohol or drug treatment
program, to the extent that such resources are available." ORS 137.228(2) condi-
tions a court's authority to direct DOC to provide alcohol and drug treatment serv-
ices on the availability of resources; Initiative Petition 56, by contrast, omits that
condition.

524 	Brady/Berman v. Kroger
Petitioner Berman raises a different challenge to the
caption. He argues that the use of the term "increases" is too
broad. Berman notes that, because the measure does not
affect mandatory minimum sentences, a person serving a
mandatory minimum sentence will still be required to serve
100 percent of that sentence. Some mandatory minimum
sentences, such as Measure 11 sentences, will also be the
maximum sentence for the crime, and a defendant sentenced
for a Measure 11 offense will have to serve that sentence with
no reduction. Cf. State v. Rodriguez/Buck, 347 Or 46, 72-73,
217 P3d 659 (2009) (explaining that the Measure 11 sentence
in that case was both the minimum and the maximum sen-
tence). Finally, Berman notes that Measure 11 sentences are
"mandatory minimum sentences [that] currently make up
nearly half the Oregon prison population." Berman concludes
that, because the measure will not increase the time that a
significant number of inmates-those sentenced to Measure
11 sentences-will have to serve, the unqualified use of the
word "increases" in the caption is misleading.
The Attorney General does not dispute that the
measure would not affect mandatory minimum sentences.
He also does not dispute that persons serving Measure 11
sentences would have to serve 100 percent of those sentences
and that the measure would not increase the incarceration
time for all felonies. The Attorney General argues, however,
that the use of the word "required" communicates that the
measure would have a more limited effect. He reasons:
"What the measure would do is raise the floor on felony
incarcerations, even though it would not raise the ceiling.
So, as the caption accurately states, the measure 'increases
required' felony incarceration time."
(Emphasis in original.)
In our view, the Attorney General's reading of the
caption is not the most natural one. Rather, the caption, as
written, 	implies 	that 	the 	measure 	would 	increase 	the
required incarceration time for all felonies when, in fact, it
would increase the required incarceration time for only some
felonies. Put differently, we do not think that the word
"required" communicates the limited extent to which the
measure would increase felony incarceration time.

Cite as 347 Or
Petitioners also challenge the "yes" and "no" vote
result statements. ORS 250.035(2)(b) and (c) require "simple
and understandable statement[s] of not more than 25 words
that describe[ ] the result" if the measure is approved and
disapproved. The Brady petitioners challenge both the "yes"
and "no" vote result statements for the same reason that they
challenged the caption: the result statements fail to mention
the drug treatment component of the measure. For the rea-
sons stated above, we agree with the Brady petitioners. 7
Petitioner Berman challenges the "yes" vote state-
ment for the same reason that he challenges the caption-it
is overinclusive as to the term of incarceration. Unlike the
caption, however, we conclude that the "yes" vote result
statement substantially complies with ORS 250.085(2)(b).
The first part of the "yes" vote result statement refers to
incarceration for "at least BO percent of felony sentence."
(Emphasis added.) The inclusion of "at least" implies that
some felonies will require incarceration for more than 80 per-
cent of the sentence. That phrase captures the idea that
the measure will not increase the time served for all felonies
and is sufficient to describe the measure's result, at least
as long as we review the ballot title only for substantial
compliance.
Finally, both the Brady petitioners and petitioner
Berman challenge the summary. ORS 250.035(2)(d) requires
"[a] concise 	and impartial statement of not more than
125 words summarizing the state measure and its major
effect." Petitioner Berman argues that the following sentence is
unnecessary: "Measure retains requirement that Department
of Corrections provide drug treatment services to specified
individuals." He reasons that, because DOC currently must
provide drug treatment if the trial court orders it, the sen-
tence should be deleted. As explained above, however, the
statutes currently do not require DOC to provide drug treat-
ment services to inmates. The measure, if enacted, would
7 Petitioner Berman also challenges the "no" vote result statement because it
fails to describe the current law regarding required drug treatment. We agree with
both Berman and the Brady petitioners that the "no" vote result statement should
describe what the law will be regarding required drug treatment services if the
measure is not approved.

526 	Brady/Berman v. Kroger
impose that requirement a year earlier than the 2009 legis-
lation. Accordingly, we do not agree with Berman's argu-
ment.
The Brady petitioners raise a related but different
argument. They argue that two sentences-the sentence
stating that "[c]urrent law** *requires drug treatment for
certain offenders" and the sentence stating that the measure
"retains requirement that Department of Corrections provide
drug treatment to specified individuals"-are inaccurate.
They contend that the law currently does not require treat-
ment and that the measure thus will not "retain" such a
requirement. For the reasons explained above, we agree with
the Brady petitioners' challenges to both sentences.
The ballot title is referred to the Attorney General
for modification.

Cite as 34 7 Or 518 	527
APPENDIX
The People hereby enact the following statute as the Oregon
Truth in Sentencing Act:
Section 1. 	a. 	Notwithstanding any other provision oflaw,
no inmate who is incarcerated as a result of a felony convic-
tion shall received any reduction in sentence, release from
custody, conditional release from custody, or any other form
of early release, where such action will cause such inmate to
serve any less than 80% of the original term of incarceration
imposed by the sentencing court.
b. 	This section does not in any fashion allow reduction of
any mandatory minimum prison term, by any amount; any
inmate must always serve 100% of any mandatory minimum
term of imprisonment.
Section 2. 	a. 	When a defendant is sentenced for any felony
crime, the sentence imposed by the court may include a
requirement that the Department of Corrections shall pro-
vide appropriate drug treatment services, where the sentenc-
ing court finds:
i.) 	The defendant is drug addicted;
ii.) 	The defendant is at a 	high or medium risk of
reoffending without treatment; and
iii.) 	The defendant has moderate to severe treatment
needs.
b. 	Nothing in this Section creates any claim, right of action,
or civil liability. This Section only requires the Department of
Corrections to carry out the order of the sentencing court.
The Department has the discretion to determine what drug
treatment services are appropriate for the defendant.
Section 3. 	a. 	A sentence imposed by the court may be
made concurrent or consecutive to any other sentence that
has been previously imposed or is simultaneously imposed
upon the same defendant. A sentence is a consecutive term
unless 	the judgment 	expressly 	provides 	for 	concurrent
sentences.
b. 	When a defendant is sentenced for a crime committed
while the defendant was incarcerated after sentencing for the
commission of a previous crime, the court shall provide that

528 	Brady/Berman v. Kroger
the sentence for the new crime be consecutive to the sentence
for the previous crime.
Section 4. 	ORS 137.123 is repealed.
Section 5. 	This Act is effective January 1, 2011, and applies
to any sentence imposed for acts committed on or after
January 1, 2011.