S057801, Opinion — Berman v. Kroger

509
On petition to review ballot title filed September 21; under advisement
November 17, ballot title referred to Attorney General for modification
December 31, 2009, modified ballot title certified February 4, 2010
(347 Or 609)
Steven C. BERMAN,
Petitioner,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057801)
225 P3d 32

510 	Berman v. Kroger
CJS, Statutes§ 131.
En Banc
Aruna A. Masih, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and reply memorandum for
petitioner.
Rolf C. Moan, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on
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 509 (2009) 	511
KISTLER,J.
Petitioner seeks review of the Attorney General's
certified ballot title for Initiative Petition 53 (2010). See ORS
250.085(2) (specifying the requirements for seeking review of
certified ballot titles). 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 explained below, we refer the ballot
title to the Attorney General for modification.
Initiative Petition 53, if enacted, would change the
criminal law in six respects. 1 First, it would require an
inmate incarcerated for committing a felony to serve at least
80 percent of his or her sentence, 2 but it would not affect man-
datory minimum sentences. Second, as a general rule, it
would give trial courts discretion to require that sentences be
served consecutively or concurrently. Third, it would make
sentencing guidelines advisory and give trial courts discre-
tion to impose any punishment up to the statutory maxi-
mum. Fourth, it would require trial courts to report to the
State Court Administrator certain sentencing information
for each felony sentence, and it would direct the State Court
Administrator to compile that information "as to each judge
imposing sentence." Fifth, it would permit trial courts to
require, as part of an inmate's sentence, that the Department
of Corrections provide appropriate drug treatment services.
Sixth, it would shift, from the counties to the state, the pre-
sentencing and post-sentencing cost of incarcerating certain
felons.
The Attorney General certified the following ballot
title for Initiative Petition 53:
"Changes laws governing felony sentencing,
service of felony sentences, consecutive sentencing;
increases state corrections responsibilities
"Result of 'Yes' Vote: 	'Yes' vote makes sentencing
guidelines advisory; requires incarceration for 80% of
1 A copy of the initiative petition is attached as an appendix to this opinion.
2 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).

512 	Berman v. Kroger
felony sentence; increases state corrections responsibilities;
requires compiling sentencing records; presumes consecu-
tive sentencing.
"Result of 'No' Vote: 	'No' vote retains: sentencing
guidelines; mandatory minimum terms for certain felonies;
county custody for some felons' incarceration; not requiring
compiling 	sentencing 	records; 	concurrent 	sentencing
presumption.
"Summary: 	Current law: creates (through sentencing
guidelines) felony prison terms of presumptive lengths
based on particular crime and offender's history, while per-
mitting courts to depart for substantial, compelling rea-
sons; requires minimum terms for certain felonies, prohib-
its any release during minimum; generally requires felons
to serve at least 70% of imposed prison term; makes sen-
tence concurrent to others unless judgment says otherwise;
requires state custody for felons imprisoned over a year,
otherwise generally requires county custody. Proposed
measure: makes sentencing guidelines advisory; retains
existing statutory minimums; requires incarceration for
80% of any felony sentence before release; makes felony
sentence consecutive to others unless judgment says other-
wise; requires state to provide or fund all felony incarcera-
tions; requires compiling information about each judge's
felony sentencing. Other provisions."
Petitioner raises multiple challenges to the ballot title. We
discuss his challenges to the caption, the "yes" vote result
statement, and the summary. 3
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." Petitioner argues that the
caption is underinclusive and thus inaccurate because it does
not state that the measure would shift, from the counties to
the state, the presentencing cost of incarcerating persons
who are later convicted offelonies. 4
3 Petitioner also challenges the "no" vote result statement. We conclude, \vith-
out further discussion, that that challenge is not well taken.
4 Section 6 of the proposed measure assumes that counties currently bear both
the pre- and the post-sentencing cost of incarcerating certain felons and would shift
those costs to the state. Petitioner, however, focuses his objection solely on the cap-
tion's failure to mention shifting the presentencing costs to the state.

Cite as 347 Or 509 (2009) 	513
The caption states that the measure "increases state
corrections responsibilities." That description-specifically,
the use of the word "responsibilities"-is broad enough to
include the increased financial responsibility that the meas-
ure, if enacted, would shift to the state. The measure is thus
neither underinclusive nor inaccurate. Petitioner's objection,
as we understand it, turns instead on a lack of specificity; he
objects to the caption's failure to identify the specific respon-
sibility-financial responsibility-that the measure would
shift from the counties to the state. However, given all that
the measure encompasses and the 15-word limit on captions,
we cannot say that the caption does not substantially comply
with the statutory goal of identifying the measure's subject
matter.
Petitioner also challenges the "yes" vote result state-
ment. ORS 250.035(2)(b) directs the Attorney General to
draft, in 25 words or less, a "simple and understandable
statement* * *that describes the result ifthe state measure
is approved." Petitioner challenges the "yes" vote result state-
ment for the same reason that he challenges the caption. He
argues that the statement is deficient because it does not spe-
cifically mention that the state would be responsible for a
greater share of the cost of incarcerating felons. 5 We reach a
different conclusion regarding the "yes" vote result statement
than 	we 	reached 	regarding 	the 	caption. 	The 	Attorney
General has more words at his disposal to describe the result
of the measure if it is approved. ORS 250.035(2)(a). And the
court has explained that the statutory obligation to describe
the result of the measure means "notify[ing] petition signers
and voters of the result or results of enactment that would
have the greatest importance to the people of Oregon."
Novick I Crew v. Myers, 337 Or 568, 57 4, 100 P3d 1064 (2004).
We agree with petitioner that the increased financial respon-
sibility that the state would bear as a result of the measure is
an important result that the "yes" vote result statement can
and should identify. 6
5 The Attorney General argues that petitioner failed to raise this objection to
the "yes" vote result statement before the Secretary of State and cannot raise it for
the first time before this court. Petitioner, however, incorporated by reference the
objections that he had raised to the caption, which included this objection.
6 Petitioner argues that the "yes" vote result statement also is deficient
because it does not say that the requirement to serve 80 percent of a sentence does

514 	Berman v. Kroger
Finally, petitioner challenges the summary. ORS
250.035(2)(d) requires the Attorney General to summarize,
in 125 words or less, "the state measure and its major effect."
Petitioner argues that the summary's description of the cur-
rent law (the reference to felons serving 70 percent of an
imposed prison term) and its description of the proposed law
(the reference to felons serving 80 percent of a sentence) are
incomplete and thus inaccurate. Petitioner argues that both
parts of the summary do not make it clear that the measure
would 	not 	affect 	mandatory 	minimum 	sentences. 	The
Attorney General responds that both aspects of the summary
are accurate.
We agree with the Attorney General that the sum-
mary accurately describes the current law regarding man-
datory minimum sentences. The summary correctly states
that the current law "requires minimum terms for certain fel-
onies, prohibits any release during minimum." We agree,
however, with petitioner that the summary does not accu-
rately describe the effect that the measure, if enacted, would
have on mandatory minimum sentences. To be sure, the sum-
mary states that the measure would "retain[] existing stat-
utory minimums." However, the next phrase in the summary
states that the measure would "require[] incarceration for
80% 	of any 	felony 	sentence 	before 	release." 	(Emphasis
added.) The summary does not say that the measure would
continue to prohibit the early release of inmates who are
serving a mandatory minimum sentence, and it therefore
implies inaccurately that the measure, if passed, could result
in the early release of an inmate who is serving a mandatory
minimum sentence, such as a Measure 11 sentence. On refer-
ral, the Attorney General should modify the summary to
identify that major effect.
The ballot title is referred to the Attorney General
for modification.
not affect mandatory minimum sentences. Petitioner, however, did not raise that
objection to the "yes" vote result statement before the Secretary of State and can-
not raise it here. We are, however, referring the ballot title to the Attorney General
for modification on other grounds, and the Attorney General is free to modify that
aspect of the "yes" vote result statement on referral ifhe considers it appropriate to
do so.

Cite as 347 Or 	515
APPENDIX
Section 1. 	In order to improve criminal justice, to protect
society, and to hold criminals more accountable for the harm
they do to victims, the People hereby enact the following stat-
ute as the Oregon Sentencing Reform Act.
Section 2. 	a. 	Notwithstanding any other provision oflaw,
no inmate who is incarcerated as a result of a felony convic-
tion shall receive any reduction in sentence, release from cus-
tody, 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 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
the sentence for the new crime be consecutive to the sentence
for the previous crime.
Section 4. 	ORS 137 .123 is repealed.
Section 5. 	a. 	When sentencing a defendant for a felony
crime, the court has discretion to impose any term of incar-
ceration, any fine, and any other penalty, up to the maximum
terms, fines, and penalties allowed by law, including ORS
161.605 and 161.625.
b. 	Notwithstanding subsection (a) of this Section, Sentencing
Guidelines, as enacted in Chapter 790, Oregon Laws 1989,
and as amended and supplemented thereafter, and the rules
adopted thereunder, are advisory only, and do not impose

516 	Berman v. Kroger
any restriction on the actual authority of the court to impose
sentence.
Section 6. 	Throughout most of Oregon's history, the state
was responsible for incarcerating felony criminals, and each
county was responsible for incarcerating misdemeanor crim-
inals. County jails were for misdemeanants, and state pris-
ons were for felons. In recent years, the state has forced
counties to incarcerate many convicted felons, imposing sig-
nificant costs on the counties. Sections 6, 7, 8, and 9 of this
Act are enacted in order to correct this abuse of state power.
Section 7. 	The state shall fully reimburse each county, on a
timely basis, for the county's actual cost of presentencing
incarceration of any person convicted of a felony.
Section 8. 	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 offelonies. 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 9. 	Sections 6, 7, and 8 of this Act apply to jail or
prison time served by felons on or after July 1, 2011.
Section 10. 	In order to let the public know the sentences
being imposed on criminals by each judge, so the public can
determine whether each judge is fairly applying the law, the
People hereby enact Sections, 10, 11, 12, and 13 of this Act.
Section 11. 	Each court shall report to the State Court
Administrator the following information, if available, regard-
ing each order imposing sentence for any felony crime:
(1) 	The defendant's criminal record;
(2) 	The crimes for which sentence was imposed;
(3) 	The sentence imposed.
Section 12. 	The Administrator shall compile the informa-
tion reported under Section 11 of this Act as to each judge
imposing sentence. The Administrator shall maintain the

Cite as 347 Or 509 (2009) 	517
records compiled as to each judge and make the records avail-
able for public inspection and copying.
Section 13. 	Sections 10, 11, and 12 of this Act apply to any
sentence imposed on or after July 1, 2011.
Section 14. 	This Act does not, in any fashion, limit or other-
wise restrict mandatory minimum prison sentence statutes,
which shall remain in effect.
Section 15. 	a. 	When a defendant is sentenced for any fel-
ony 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.
c. 	This Section applies to sentences imposed on or after July
1, 2011.
Section 16. 	This Act is effective January 1, 2011, and
applies to any sentence imposed for any act committed on or
after January 1, 2011, except as to later operative dates, as
provided in Sections 9, 13, and 15 of this Act.