S057885, Opinion — Berman v. Kroger

581
On petition to review ballot title filed October 12, considered and under advisement
December 2, 2009, ballot title referred to Attorney General for modification
February 4, modified ballot title certified February 18, 2010 (347 Or 719)
Steven C. BERMAN,
Petitioner,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057885)
227 P3d 692
CJS, Statutes§ 131.

582 	Berman v. Kroger
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.
BALMER,J.
The ballot title is referred to the Attorney General for
modification.

Cite as 34 7 Or 581 (2010) 	583
BALMER,J.
Petitioner seeks review of the Attorney General's
certified ballot title for Initiative Petition 59 (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.
Initiative Petition 59, if enacted, would change the
authority of courts imposing sentences for felony crimes by
making the existing felony sentencing guidelines "advisory
only." The proposed measure states that it would give those
courts "discretion" to impose any term of incarceration, any
fine, and any other penalty, up to the maximum allowed by
law. It also provides that the measure would not affect any
existing mandatory minimum sentencing statutes.
The Attorney General certified the following ballot
title for Initiative Petition 59:
"Makes sentencing guidelines (which create
presumptive sentence lengths) advisory, grants
discretion to impose maximum sentences
"Result of 'Yes' Vote: 	'Yes' vote makes sentencing
guidelines (which create presumptive sentence lengths
based on felony, offender's history) advisory; grants discre-
tion to impose sentences up to maximum allowed.
"Result of 'No' Vote: 	'No' vote retains sentencing
guidelines (which create presumptive sentence lengths
based on particular felony, offender's history, while permit-
ting upward, downward departures for substantial, compel-
ling reasons).
"Summary: 	Current law requires (through the state
sentencing guidelines) felony prison terms of presumptive
lengths based on the particular crime and on the offender's
history, while permitting courts to depart upward or down-
ward for substantial, compelling reasons. Current law gen-
erally creates 20-year maximum prison terms for Class A
felonies, 10-year maximum terms for Class B felonies, and

584 	Berman v. Kroger
five-year maximum terms for Class C felonies, but for cer-
tain felonies requires a minimum term exceeding the max-
imum that otherwise would apply. Measure makes sentenc-
ing guidelines advisory; gives courts discretion to impose
sentences up to the maximum allowed by current law; does
not affect or restrict current mandatory minimum prison
sentence statutes; measure applies to sentences imposed
for felonies committed on or after January 1, 2011."
Petitioner is an elector who timely submitted writ-
ten comments to the Secretary of State concerning the con-
tent of the Attorney General's draft ballot title and who
therefore is entitled to seek review of the resulting certified
ballot title in this court. See ORS 250.085(2) (stating that
requirement). Petitioner challenges the caption, the "yes"
and "no" vote result statements, and the summary.
Petitioner asserts that the certified caption, by focus-
ing on the discretion that the measure would give to sentenc-
ing courts to impose the "maximum sentences" allowed by
law, fails to disclose that it also would give those courts dis-
cretion to impose the lowest statutorily permissible sentence.
Petitioner notes-and the Attorney General does not disa-
gree-that, by making the sentencing guidelines advisory
only, the measure would give a sentencing court discretion to
impose a greater or lesser sentence than the presumptive
guidelines sentence. By mentioning only the discretion to
impose maximum sentences, petitioner argues, the certified
caption tells only half the story.
The Attorney General responds that the reference in
the first part of the caption to the fact that the measure would
make the sentencing guidelines advisory adequately informs
the reader that the sentencing court would be able to impose
either a greater or a lesser sentence than the presumptive
guidelines 	sentence. 	Additionally, 	the Attorney 	General
asserts that the phrase "grants discretion to impose maxi-
mum sentences" should be included because it mirrors a pro-
vision in the proposed measure and, if that phrase did not
appear in the measure, "the measure would permit sentenc-
ing courts to impose 	any sentence at all, 	without 	any
limitation."

Cite as 347 Or 581 (2010) 	585
We agree with petitioner. There is no dispute that,
by making the sentencing guidelines advisory only, the
measure would give a sentencing court the discretion to
impose a sentence between the minimum and the maximum
allowed by other statutory provisions. By focusing on the
maximum 	alone, 	the 	certified 	caption 	is 	misleading.
Although, as the Attorney General points out, the measure
itself states that the sentencing court may impose a sentence
"up to the maximum," nothing in the measure makes any
change to any existing statutory maximum or minimum sen-
tencing provision, other than by making the guidelines advi-
sory only. Thus, the measure would permit sentencing courts
to impose sentences that are higher or lower than those in the
sentencing guidelines. Because the caption refers only to the
courts' discretion to "impose maximum sentences," rather
than indicating that courts would be able to impose any sen-
tence permitted by law, the caption is misleading and must
be modified.
Petitioner similarly objects to wording in the "yes"
vote result statement and in the summary. Unlike the cap-
tion, the "yes" vote result statement and the summary track
the wording of the measure, stating that the measure would
give sentencing courts discretion to impose sentences "up to"
the maximum allowed, rather than stating that the measure
would give courts "discretion to impose maximum sentences."
The "yes" vote result statement and the summary are never-
theless misleading for the reasons set out above. They focus
on the court's discretion to impose sentences "up to" the
"maximum," without acknowledging that courts would also
be able to impose sentences down to the minimum allowed by
law. We therefore agree with petitioner that the "yes" vote
result statement and the summary must be modified.
Petitioner raises an additional objection to the "yes"
vote result statement and also argues that the "no" vote
result statement should be modified, although petitioner con-
cedes that the "no" vote result statement is accurate. We
reject those challenges without discussion.
The ballot title is referred to the Attorney General
for modification.