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Novick v. Myers11/18/2004
En Banc
On petitions to review ballot title.
Submitted on the record September 21, 2004.
Ballot title certified.
Riggs, J., concurred in part, dissented in part, and filed an opinion.
The court has consolidated for opinion two petitions for review of a ballot title under ORS 250.085(2). Petitioners Novick and Crew are electors who are dissatisfied with the Attorney General's certified ballot title. Because petitioners timely submitted written comments regarding the draft ballot title, they are entitled to seek review in this court. ORS 250.085(2). Intervenor Bird has intervened in support of the objections that petitioner Novick filed and in opposition to the objections that petitioner Crew filed.
The proposed measure, if adopted, would amend ORS 20.340 to impose an upper limit of $100,000 on the attorney fees, exclusive of actual expenses and costs, that a lawyer could charge to the plaintiff in a civil action for personal injury or wrongful death, except for any class action. The full text of the proposed measure appears as an Appendix to this opinion. For that proposed measure, which the Secretary of State has delineated as Initiative Petition 3 (2006), the Attorney General certified the following ballot title:
"LIMITS COMPENSATION OF ATTORNEY(S) FOR INDIVIDUAL PLAINTIFF IN ALL PERSONAL INJURY OR WRONGFUL DEATH CLAIMS
"RESULT OF 'YES' VOTE: 'Yes' vote limits maximum compensation to attorney(s) for plaintiff in a personal injury or wrongful death claim (other than certified class action) to $100,000.
"RESULT OF 'NO' VOTE: 'No' vote retains current law, which imposes no set monetary limitations on plaintiff's attorney fees for claims arising out of personal injury or wrongful death.
"SUMMARY: Current law places no limit on fee agreements between injured individuals, their spouses, or legal representatives and attorneys who agree to represent them, unless resulting fee is excessive or illegal. Measure limits attorneys' fees in all claims for personal injury or death to a maximum of $100,000, regardless of the result achieved. Measure does not apply to certified class actions. Measure applies to arbitration, mediation, and settlement, as well as litigation. Limitation applies to each individual claim made, regardless of the number of attorneys representing the injured individual and regardless of the number of individuals or entities against whom claim is made. Limitation does not apply to attorney fees for attorneys for the individuals or entities that caused the injury or death. Other provisions."
Petitioner Novick challenges the Attorney General's "yes" and "no" vote result statements. Petitioner Crew challenges the caption, "yes" vote result statement, and summary of the Attorney General's ballot title. We review the Attorney General's ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2). ORS 250.085(5).
NOVICK PETITION
Petitioner Novick asserts that the Attorney General's "yes" vote result statement fails to describe the result if the voters approve the proposed measure, as ORS 250.035(2)(b) requires. According to petitioner Novick,
" he true 'result' of passage of the measure would be to establish an unequal system in which defendants in personal injury or wrongful death cases would be able to spend unlimited amounts on attorneys, but plaintiffs would not. The creation of such a two-tiered system is a fundamental change in the law, which this section should make clear."
(Emphasis omitted.) The Attorney General responds that the "yes" vote result statement
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