Summary
The Oregon Supreme Court reviewed a certified ballot title for Initiative Petition 59, which would make felony sentencing guidelines advisory and allow courts discretion to impose sentences within statutory limits. The court held that the caption, yes-vote result statement, and summary were misleading because they emphasized maximum sentences without explaining that courts could impose sentences higher or lower than the presumptive guideline sentence, and it referred the ballot title to the Attorney General for modification.
Topics
Practice areas
Questions Presented
- Whether the certified ballot-title caption substantially complied with ORS 250.035(2) when it stated that the measure would grant courts discretion to impose maximum sentences without explaining that courts could impose any sentence between the statutory minimum and maximum.
- Whether the certified yes-vote result statement and summary were misleading because they described discretion to impose sentences up to the statutory maximum without acknowledging discretion to impose sentences below the presumptive sentencing-guideline sentence.
- Whether the remaining challenges to the yes-vote and no-vote result statements required modification.
Holdings
- The certified caption was misleading because it focused only on discretion to impose maximum sentences and failed to indicate that courts could impose any sentence permitted by law, including sentences higher or lower than the presumptive sentencing-guideline sentence.
- The yes-vote result statement and summary were misleading because they stated that courts could impose sentences up to the statutory maximum without acknowledging that courts could also impose sentences down to the statutory minimum.
- The court rejected petitioner's additional challenges to the yes-vote result statement and the no-vote result statement.
Key quotations
“By focusing on the maximum alone, the certified caption is misleading.”
“Thus, the measure would permit sentencing courts to impose sentences that are higher or lower than those in the sentencing guidelines.”
Factual background
Initiative Petition 59 would make Oregon's felony sentencing guidelines advisory rather than presumptive, while leaving statutory minimum and maximum sentences generally unchanged. The Attorney General's certified ballot title emphasized that courts could impose maximum sentences or sentences up to the statutory maximum. Berman argued that the wording failed to disclose that courts also would have discretion to impose sentences below the presumptive guideline sentence, down to the minimum allowed by law.
Procedural history
The Attorney General certified a ballot title for Initiative Petition 59, which would make felony sentencing guidelines advisory. After timely submitting written comments to the Secretary of State, Berman sought review in the Oregon Supreme Court under ORS 250.085(2). The court concluded that portions of the certified ballot title were misleading and referred the ballot title to the Attorney General for modification.
Remand instructions
The certified ballot title was referred to the Attorney General for modification of the caption, yes-vote result statement, and summary to disclose that sentencing courts could impose any sentence permitted by law, including sentences higher or lower than the presumptive guideline sentence.