S055746, Opinion — Yugler v. Myers

552
On petition to review ballot title filed February 25; considered and under
advisement on April 30, ballot title referred to the Attorney General for
modification May 30, 2008
Richard S. YUGLER,
Petitioner,
v.
Hardy MYERS,
Attorney General
for the State of Oregon,
Respondent.
(SC S055746)
185 P3d 1 1 10

Cite as 344 Or 552 	553
CJS, Statutes § 131.
En Banc
Helen M. Hierschbiel, Tigard, filed the petition to review
ballot title and the reply to respondent's answering memo
randum for petitioner.
Laura S. Anderson, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the memorandum were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
LINDER, J.
Ballot title referred to the Attorney General for
modification.

554 Yugler v. Myers
LINDER, J.
Petitioner seeks review of the Attorney General's
certified ballot title for Initiative Petition 17 (2010). See ORS
250.085(2) (specifying requirements for seeking review of cer
tified 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 explained below, we refer the ballot title to
the Attorney General for modification.
If enacted, Initiative Petition 17 (IP 17) would add a
provision to the Oregon Revised Statutes that requires
judges to give juries the following instruction:
"The courts of the United States of America have long
held that a jury may stand in judgment of both the facts of
the case and the law itself. Sometimes a judge is wrong.
Sometimes a prosecutor or other attorney is over-zealous or
unequally eloquent. Sometimes a law is unjust.
"As a juror in this case, you have not only the right, but
also the duty to j udge not only the facts of this case, but also
the law. You have the right to disregard the instructions of
the j udge and the l anguage of the law. You have the right to
exercise your common sense and conscience and find i n
favor o f the defendant, i f you believe that following the
judge's instructions or applying the language of the law in
this case will result in an unjust verdict or judgment."
The Attorney General certified the following ballot title for
IP 17:
"REQUIRES INSTRUCTING JURY OF RIGHT/DUTY
TO DISREGARD LAW IF VERDICT AGAINST
DEFENDANT IS 'UNJUST'
"RESULT OF 'YES' VOTE: 'Yes' vote requires judge to
instruct jurors of right to disregard applicable law ifj uror's
'common sense'/'conscience' say verdict against defendant
would be 'unjust.'
"RESULT OF 'NO' VOTE: 'No' vote maintains current
law, which commits issues of law to the judge and requires
juries to apply the law as instructed by the judge.
"SUMMARY: Current Oregon law requires jury to
apply the law as instructed by the judge. The measure

Cite as 344 Or 552 555
changes existing law by requiring that a specified state
ment be read and handed or displayed to jury, stating that
a judge may be wrong, an attorney over-zealous, or a law
unjust, and that jurors have a right and duty to judge both
facts and law applying to the case. The statement informs
jurors that they may disregardjudge'sjury instructions and
the language of the law; informs the jurors of their 'right' to
exercise 'common sense' and 'conscience' and to find in favor
of the defendant if they believe following judge's instruc
tions or language of the law would result in 'unjust' verdict
(quoted terms not defined). Other provisions."
Petitioner challenges the caption, the "yes" vote result state
ment, and the summary.
A ballot title caption must contain "not more than 15
words that reasonably identif1y] the subject matter of the
state measure. " ORS 250.035(2)(a). The caption serves as the
"cornerstone for the other portions of the ballot title" and
therefore must identify the proposed measure's true subject
matter "accurately and in terms that will not confuse or
mislead potential petition signers and voters." Green v.
Kulongoski, 322 Or 169, 174-75, 903 P2d 366 ( 1995). Peti
tioner argues that the certified caption is inaccurate because
it suggests that jurors currently have "the unequivocal right
and duty to disregard the law and acquit a defendant, when
in fact, no such right clearly exists." See Fauvre v. Roberts,
309 Or 691, 696, 791 P2d 128 ( 1990) ("[i]t is not the law in
this state that a jury has the 'right'-as opposed to the
undoubted power-" to return a verdict that is contrary to the
evidence and the applicable law). Petitioner points out that
whether IP 1 7 would effectively give rise to such a right, and
thereby change current law, is open to question. As a result,
according to petitioner, referring to a "right/duty" to disre
gard the law is "confusing at best and misleading at worst,"
because it is not true that such a right currently exists and it
is debatable whether one would come into existence if IP 1 7
were enacted.
The Attorney General agrees that, under current
law, a jury does not have a right to disregard applicable law
in reaching a verdict. The Attorney General also agrees that
whether IP 17 would create such a right is an open question.
The Attorney General disagrees, however, that the plain

wording of the caption suggests to voters that j urors either
now have or under IP 17 would have such a right or duty.
Petitioners have the better of the argument. The
wording in the certified caption declares that IP 17 requires
trial courts to instruct a jury "ofright/ duty to disregard law."
(Emphasis added. ) That phrasing suggests that such a right
or duty exists, when in fact it does not. See Fauvre, 309 Or at
696 (jury does not have the right to return a verdict that is
contrary to the evidence and the law). Whether IP 17 creates
such a right is debatable. On the one hand, the proposed
measure does not expressly create such a right. On the other
hand, it characterizes a jury's power to disregard the law as a
right or duty, and requires the jury to be advised that it has
the right or duty to disregard the law, thus leaving it open to
argument whether the proposed measure gives rise to such a
right inferentially. Consequently, for the caption to parrot
the "right/duty" characterization from the proposed initiative
in a way that suggests that the characterization is accurate is
misleading.
Petitioner makes the same challenge to the "yes"
result statement; for the same reasons, we conclude that the
"yes" result statement is not accurate. See ORS 250.035(2)(b)
(ballot title must contain a simple and understandable state
ment of not more than 25 words that describes the result if a
state measure is approved). Again, by explaining that a "yes"
vote requires a judge to instruct jurors "of right to disregard
applicable law" (emphasis added), the statement suggests
the existence of a right that does not now exist and that IP 1 7
may or may not create.1
The final prong of petitioner's challenge is to the
Attorney General's 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."
The goal of the summary is to "help voters understand what
will happen if the measure is approved" and the "breadth of
its impact." Mabon v. Myers, 332 Or 633, 640, 33 P3d 988
1 We have considered other challenges that petitioner makes to the certified
caption and to the "yes" result statement, and we reject them without further
discussion.

Cite as 344 Or 552 (2008) 557
(2001) (internal quotation marks omitted). Petitioner's argu
ment is similar to, but not the same as, his challenges to the
certified caption and "yes" result statement. Specifically,
petitioner argues that the summary is inaccurate or mislead
ing because it fails to tell voters explicitly that current law
does not give jurors the right to disregard the law. According
to petitioner, the summary must explain that point if voters
are to understand how the proposed measure changes or is
contrary to existing law. The Attorney General responds that
the first sentence of the summary-"Current Oregon law
requires jury to apply the law as instructed by the judge"
sufficiently advises voters of the state of current law. We
agree. The fact that the Attorney General chose to capture
the same idea in different terms does not mean that the sum
mary fails to substantially comply with ORS 250.035(2)(d).
See Novick / Crew v. Myers, 337 Or 568, 574-75, 100 P3d 1064
(2004) (a petitioner does not demonstrate a failure to sub
stantially comply with statute "merely by showing that some
other choice by the Attorney General would have been
appropriate"). 2
Ballot title referred to the Attorney General for
modification.
2 On referral, the Attorney General is free to further consider petitioner's
argument in this regard, if he wishes.