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Filed: April 6, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
KEVIN K. STARRETT,
Petitioner,
v.
HARDY MYERS,
Attorney General for the State of Oregon,
Respondent.

JOHN T. NICHOLS, Petitioner,
v.
HARDY MYERS,
Attorney General for the State of Oregon,
Respondent,
and
GINNY BURDICK,
Intervenor. (SC S47079, S47085)
(Consolidated for Argument and Opinion)
En Banc
On petition to review ballot title.
Argued and submitted March 16, 2000.
Kevin K. Starrett, Canby, pro se, argued the cause and filed the petition and reply for petitioner Starrett.
John DiLorenzo Jr., of Hagen, Dye, Hirshey & DiLorenzo, P.C., Portland, argued the cause and filed the petition and
supplemental memorandum for petitioner Nichols.
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the answering memoranda for

respondent. With him on the memoranda were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor
General.
Steven Novick, Portland, argued the cause and filed the memorandum for intervenor.
GILLETTE, J.

Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).
Van Hoomissen, J., dissented and filed an opinion.
GILLETTE, J.
These two ballot title review proceedings concerning the Attorney General's certified ballot title for a proposed initiative measure, denominated Initiative Petition 99 (2000), have been consolidated for purposes of argument and decision. Petitioners are electors who timely submitted written comments concerning the content of the Attorney General's draft ballot title and who therefore are entitled to seek review in this court. See ORS 250.085(2) (setting that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035 (1997). See ORS 250.085(5) (setting out standard of review). For the reasons that follow, we conclude that the Attorney General's certified ballot title does not do so. We therefore modify it and, as modified, certify it to the Secretary of State.
The proposed measure, entitled the "Gun Violence Prevention Act," would enact statutes that relate, inter alia, to the sale of firearms at "gun shows" and to the kind of background check respecting a potential purchaser that must be made before a firearm may be sold. The Attorney General certified the following ballot title for the measure:
"EXPANDS CIRCUMSTANCES REQUIRING BACKGROUND CHECK BEFORE TRANSFER OF FIREARM
"RESULT OF 'YES' VOTE: 'Yes' vote requires background check before any firearm transfer at gun show
or by dealer.
"RESULT OF 'NO' VOTE: 'No' vote rejects expanding current background-check requirement beyond
handgun transfers by gun dealers.
"SUMMARY: State law currently requires background check before gun dealer sells handgun. Measure
requires: background check before gun dealer transfers any firearm; background check, or transfer through
gun dealer, before nondealer may transfer firearm at 'gun show' (event with over 25 available firearms
present). Noncompliance creates criminal liability. Authorizes confidential retention, for five years, of
information obtained during background check. Expands crimes of providing false information, improper
transfer, to include transfers of all firearms, not just handguns. Other changes."
As noted, ORS 250.085(5) requires this court to review challenged ballot titles for "substantial compliance with the requirements of ORS 250.035." As applied to the present proceeding, the latter statute (1) requires that a ballot title contain a caption of not more than 10 words that "reasonably identifies the subject matter" of the proposed measure, ORS 250.035(2)(a) (1997), a "yes" result statement containing a "simple and understandable statement of not more than 15 words that describes the result if the state measure is approved," ORS 250.035(2)(b) (1997), a "no" result statement containing a "simple and understandable statement of not more than 15 words that describes the result if the state measure is rejected," ORS 250.035(2)(c) (1997), and a summary that is a "concise and impartial statement of not more than 85 words summarizing the state measure and its major effect," ORS 250.035(2)(d) (1997).
In case number S47079, petitioner Starrett challenges only the legal sufficiency of the Attorney General's caption and summary. With respect to the caption, petitioner Starrett's argument does not establish that the Attorney General's caption fails to comply substantially with the requirements of ORS 250.035(2)(a) (1997). Petitioner Starrett's challenge to the Attorney General's summary is not one that he (or any other party) made during the period for comment on the Attorney General's draft ballot title; neither is it aimed at wording either inserted in or deleted from the ballot title after that comment period. We therefore do not consider it. See ORS 250.085(6) (in review process, court shall not consider "arguments * * * not presented in writing to the Secretary of State unless the * * * argument concerns language added to or removed from the draft title after expiration of the comment period").
We turn to the arguments presented by petitioner Nichols in case number S47085. Petitioner Nichols challenges the Attorney General's "no" result statement and his summary. We address each of those topics in turn.
As noted, the Attorney General's certified "no" result statement provides: "'No' vote rejects expanding current background-check requirement beyond handgun transfers by gun dealers." That statement is erroneous, petitioner Nichols asserts, because "it suggests that a 'No' vote would result in a situation in which background checks were not required for purchasers of firearms other than handguns." Petitioner Nichols acknowledges that the "suggestion" about which he complains would be correct with respect to Oregon law, if the proposed measure is rejected. But, he points out, federal law presently requires background checks for the sale of firearms other than handguns. See 18 USC

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