concurring.
The majority opinion provides a rationale that is sufficient to justify dismissal of the alternative writ of mandamus in this case. The majority concludes that it is difficult to imagine that the legislature would provide the parties to a criminal action with the right to challenge the lawfulness of the selection of jurors, ORS 136.005(1), but deny them access to the clerk’s source list and jury list, ORS 10.215(1), that might serve as the factual foundation for such a challenge. That rationale comports with common sense, and I join it. However, the majority’s analysis does not expose completely the ambiguity that inheres in ORS 10.215(1). I will address that problem, because the legislature may wish to consider amending ORS 10.215(1) to resolve the ambiguity.
ORS 10.215(1) provides:
“The clerk of court shall cause to be prepared at least once each year a master jury list containing names selected at random from the source lists. The source lists are the most recent list of electors of the county, the records furnished by the Department of Transportation as provided in ORS 802.260(2) and any other sources approved by the Chief Justice of the Supreme Court that will furnish a fair cross section of the citizens of the county. Any source list obtained from a public or private entity and any jury list containing names selected from a source list shall not be used for any purpose other than the selection and summoning of persons for service as jurors and the drawing of names of jurors.”
(Emphasis added.)
Ambiguity arises from the passive voice verb in the third sentence in that statute: “shall not be used.” That sentence fails to identify clearly the person or entity to whom the legislature has addressed the statutory prohibition.
The passive voice flaw in the statute spawned the parties’ legal dispute. On the one hand, relators argue plausibly that criminal defendants do not use source lists and jury lists to select and summon jurors. On the other hand, because the first sentence of ORS 10.215(1) directs the clerk to prepare a master jury list, the third sentence appears to state a prohibition against misuse of source lists and jury lists by the *510clerk, and no one else. The majority opinion accepts relators’ argument, but does not resolve the ambiguity noted above in ORS 10.215(1), because other statutes appear to entitle Garner to use the jury records that he seeks to challenge the jury selection in his case.
The ambiguity noted above might continue to cause problems for relators, including the prospect of additional litigation and the attendant expense. For example, the public, including the news media, cannot determine from the majority opinion whether ORS 10.215(1) authorizes relators to refuse to disclose source lists and jury lists to persons who are not criminal defendants. The legislature might wish to address the ambiguity in ORS 10.215(1) before those problems arise.
I concur.
Kulongoski, J., joins in this opinion.