S055292, Opinion — Farr v. Myers

681
On petition to review ballot title filed September 12; considered and under
advisement on December 5, ballot title referred to the Attorney General for
modification December 28, 2007, modified ballot title referred back to
Attorney General for further modification February 13, 2008 (344 Or 195)
Modified ballot title certified February 29, 2008 (344 Or 281)
Laura Culberson FARR,
Petitioner,
u.
Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S55292)
174P3d1012
CJS, Statutes § 131.

En Banc
Margaret S. Olney, Smith, Diamond & Olney, Portland,
filed the petition to review ballot title and reply to respon-
dent's answering memorandum for petitioner.
Christina 	M. 	Hutchins, 	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.

Cite as 343 Or 681 	683
LINDER,J.
Petitioner seeks review of the Attorney General's
certified ballot title for Initiative Petition 1 (2010). 1 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 ofreview).
For the reasons explained below, we refer the ballot title to
the Attorney General for modification.
Initiative Petition 1 is a statutory proposal that
establishes 	certain 	minimum 	educational 	and 	training
requirements as a condition of performing what the measure
defines as ''high velocity, low amplitude" spinal manipulation
and adjustment. Under the proposed measure, health profes-
sional regulatory boards, as specified in ORS 676.160, may
suspend, revoke, or refuse to renew the license or registration
of a person under their jurisdiction who performs such spinal
manipulations without the requisite education and training.
Likewise under the proposed measure, the board that regu-
lates athletic trainers (who are not covered under ORS
676.160) may suspend, revoke, or refuse to renew an athletic
trainer's license or registration if he or she performs "high
velocity, low amplitude" spinal manipulations without the
requisite education and training.
The Attorney General certified the following ballot
title for Initiative Petition 1:
"ESTABLISHES MINIMUM EDUCATIONAL, 	OTHER
REQUIREMENTS TO PERFORM SPINAL MANIPULA-
TION, ADJUSTMENTS; VIOLATIONS ARE UNLAWFUL
CHIROPRACTIC PRACTICE
"RESULT OF 'YES' VOTE: 	'Yes' vote establishes mini-
mum educational, training requirements, legal authoriza-
tions, for spinal manipulation and adjustments by persons
in Oregon; makes violations punishable as unlawful chiro-
practic practice.
1 The proposed measure is set forth in the Appendix.

684
"RESULT OF 'NO' VOTE: 	'No' vote makes no changes to
training and educational requirements for spinal manipu-
lation and adjustments by different professions; require-
ments remain set by respective licensing boards.
"SUMMARY: 	Current law contains statutes, rules and
regulations governing the scope of practice of health care
practitioners, including chiropractors and athletic trainers.
Measure prohibits persons from performing 'high velocity,
low amplitude spinal manipulation or chiropractic spinal
adjusting' (defined) without having: legal authority to per-
form 'differential diagnosis' (defined) in Oregon; 400 hours
of hands-on instruction in spinal manipulation and adjust-
ments; 900 hours of clinical training directly supervised by
licensed physician over at least twelve months. Measure
makes performance of spinal manipulation and adjust-
ments unlawful chiropractic practice and grounds for a
health professional regulatory board having authority over
a health care practitioner or the Board of Athletic Trainers
to suspend, revoke or refuse to renew a license or registra-
tion or impose other lawful disciplinary action. Other
provisions."
Petitioner challenges only the summary prepared by
the 	Attorney 	General 	for 	the 	proposed 	measure. 	ORS
250.035(2)(d) requires that the summary contain "[a] concise
and impartial statement of not more than 125 words sum-
marizing the state measure and its major effect." Petitioner
advances two independent challenges to the adequacy of the
summary, which we consider in turn.
Petitioner's first challenge is that the description of
current law in the summary is unhelpful, because merely
stating that existing "statutes, rules and regulations" govern
the scope of practice of health care practitioners provides no
useful information to voters. In petitioner's view, that prob-
lem is compounded because the summary singles out chiro-
practors and athletic trainers and, by doing so, suggests that
they are the only professionals affected by the proposal. The
Attorney General does not directly respond to petitioner's
concern that the summary's reference to current law is too
generic. As for petitioner's claim that the summary singles
out chiropractors and athletic trainers, the Attorney General
urges that, because the summary refers to "health care
providers, including chiropractors 	and athletic trainers"

Cite as 343 Or 681 	685
(emphasis added by Attorney General), the summary ade-
quately explains that health care providers more generally
are affected by the proposed measure. The Attorney General
defends the specific reference to chiropractors and athletic
trainers because the proposed measure itself specifically
includes those groups by extending its scope to the regulatory
board that oversees athletic trainers and by declaring that a
violation of the statutory prohibition is an unlawful "chiro-
practic practice."
We agree with petitioner that merely stating that
current law "contains statutes, rules and regulations govern-
ing the scope of practice of health care practitioners" does not
give voters needed information to assess the major effect of
the proposed measure. Under current law, the boards that
oversee health care professionals establish educational and
training requirements as a prerequisite for obtaining a
license or other credential to practice their respective profes-
sions. See, e.g., ORS 685.060(2) (2005), amended by Or Laws
2007, ch 327, § 1 (studies required of applicant for naturo-
pathic license include those listed by statute and other sub-
jects as required by the Board of Naturopathic Examiners);
ORS 	688.160(6)(d) 	(giving Physical 	Therapist Licensing
Board authority to establish standards and tests to deter-
mine qualifications of applicants). That point must be made
so that voters can understand that the proposed measure, by
mandating minimum education and training requirements
for performing "high velocity, low amplitude spinal manipu-
lation and chiropractic spinal adjust[ment] ," 2 would change
the current legal authority of the health care regulatory
boards in that regard.
We also agree with petitioner that the summary, by
listing only chiropractors and athletic trainers as examples of
the licensed professionals affected by the proposed measure,
does not adequately describe the proposed measure's scope in
terms of who it affects. The proposed measure would pre-
scribe educational and training requirements for all health
care professionals regulated by boards listed in ORS 676.160.
2 We note the proposed measure defines "spinal adjustment," whereas the
summary refers to the procedure as "spinal adjusting."

686 	Farr v. Myers
The boards so listed regulate a wide range of health care pro-
fessionals (e.g., naturopaths, medical physicians, and physi-
cal therapists), some of whom may now perform or may in the
future perform spinal manipulations of the kind that the pro-
posed measure describes. 3 Because the proposed measure
makes violation of its provisions an unlawful "chiropractic"
practice, identifying chiropractors in the summary as among
the health care professionals affected by the proposed meas-
ure does not aid in explaining what other health care profes-
sionals are subject to the proposed measure's terms. Nor does
listing athletic trainers do so. Athletic trainers are not health
care professionals regulated by any board listed in ORS
676.160. Rather, they are in a category of their own. See gen-
erally ORS 688.701- 688.734 (provisions governing licensing
and oversight of athletic trainers). Because the proposed
measure 	nevertheless 	specifically extends 	to 	them, 	the
Attorney General appropriately specially identified them as
professionals who would be affected by the proposed meas-
ure. But, again, doing so does not assist in describing that a
broader group of health care professionals regulated by
boards listed in ORS 676.160, in addition to chiropractors,
also could be 	affected. 	We 	therefore conclude 	that 	the
Attorney General's summary does not substantially comply
with ORS 250.035(2)(d) in that regard.
Petitioner's second challenge to the summary is that
it does not accurately describe the major effect of the pro-
posed measure because it does not explain that, at present,
"only chiropractors receive [the] specified kind of training''
that the measure requires. Petitioner urges that the real
" ORS 676.160 contains an extensive list of regulatory boards that oversee
health care professionals. See, e.g., ORS 676.160(3) CState Board of Clinical Social
Workers); ORS 676.160(6) (Board of Examiners of Licensed Dietitians); ORS
676.160(9) (Board of Naturopathic Examiners); ORS 676.160(13) (State Board of
Pharmacy); ORS 676.160(14) (Board of Medical Examiners); ORS 676.160(161
(Physical Therapist Licensing Board). As we explain in our answer to petitioner's
second challenge to the summary, neither the proposed measure nor other govern-
ing law provides a way to determine which other licensed health care professionals
will be affected by the proposed measure. The summary therefore does not have to
list or specifically identify those other health care professionals. But it must, better
than it does now, explain that the major effect of the measure is to establish mini-
mum levels of training and education for other health care professionals. in addi-
tion to chiropractors, who now perform or are likely in the future to perform "high
velocity, low amplitude" spinal manipulations.

Cite as 343 Or 681 	687
effect of the measure will be to give chiropractors "a monop-
oly" over spinal manipulation therapy and make it unlawful
for other health care professionals to provide the same
therapy.
The proposed measure, however, does no more than
establish minimum levels of training and education that
health care professionals and athletic trainers must meet as
a condition of performing the described spinal manipulation
therapy. It does not require that a person be a licensed chi-
ropractor to perform that therapy. Whether other health care
professionals have obtained, or in the future will obtain, the
minimum training and education that the proposed measure
would require cannot be determined from the terms of the
measure itself or from other governing law. We agree with
the Attorney General that petitioner's second ground for
challenging the summary requires speculation that is beyond
the scope of the ballot title process. Sizemore v. Myers, 326 Or
220, 230, 953 P2d 360 (1997) ("factual investigation" 	well
beyond the scope of a ballot title review).
Ballot title referred to the Attorney General for
modification.

688 	Farr v. Myers
APPENDIX
"Be it Enacted by the People of Oregon:
"SECTION 1. 	(1) 	As used in this section:
"(a) 	'Differential diagnosis' means the determination
of which of two or more diseases with similar symptoms is
the one from which the patient is suffering.
"(b) 	'High velocity, low amplitude spinal manipulation
or chiropractic spinal adjustment' means impulse adjusting
or thrusting by the practitioner's hands of a nature that the
patient cannot prevent the motion. The spinal manipula-
tion or adjustment commences at the point where mobili-
zation ends and the motion encounters the elastic barrier or
resistance and ends at the limit of anatomical integrity.
"(c) 	'Mobilization' means movement applied singularly
or repetitively within or at the physiological range of joint
motion, without imparting a thrust or impulse, with the
goal of restoring joint mobility.
"(2) 	A person may not perform high velocity, low
amplitude 	spinal 	manipulation 	or 	chiropractic 	spinal
adjustments without having:
"(a) 	The legal authority to perform differential diag-
nosis in this state;
"(b) 	Received a 	[sic] 	least 400 hours of hands-on
instruction in spinal manipulation or spinal adjustment;
and
"(c) 	Received at least 900 hours of clinical training
directly supervised by a licensed physician over a period of
at least twelve months.
"(3) 	Violation of subsection (2) of this section consti-
tutes the unlawful practice of chiropractic and is grounds
for a health professional regulatory board, as specified in
ORS 676.160 and having authority over a health care prac-
titioner, or the Board of Athletic Trainers to suspend,
revoke or refuse to renew the license or registration of or
impose other disciplinary action allowed by law against the
health care practitioner or athletic trainer who commits the
violation.
"SECTION 2. 	Section 1 of this 2010 Act is not intended
to apply retroactively, and nothing in section 1 of this 2010

Cite as 343 Or
Act provides grounds for disciplinary action against a
health care practitioner or an athletic trainer that are
based on conduct occurring before the effective date of this
2010 Act. However, section 1 of this 2010 Act does not pre-
vent a health professional regulatory board, as specified in
ORS 676.160 and having authority over a health care prac-
titioner, or the Board of Athletic Trainers from suspending,
revoking or refusing to renew the license or registration of
or imposing other disciplinary action allowed by law
against a health care practitioner or athletic trainer on any
ground that was the basis for disciplinary action before the
effective date of this 2010 Act.
"SECTION 3. 	Section 1 of this 2010 Act is added to
and made a part of ORS chapter 684."