concurring.
I join in the court’s disposition in this case. I write separately to point to a concern that is endemic to all cases of this kind.
As I indicated in my concurring opinion in Nelson v. Myers, 330 Or 92, 100, 996 P2d 975 (2000) (Riggs, J., concurring), I harbor reservations concerning the propriety and constitutionality of this court’s role in the review and modification of ballot titles under ORS 250.085(5).1 On further reflection, I conclude that, although review is within the bounds of Article III, section 1, of the Oregon Constitution,2 modifying a ballot title is not.
An extended discussion of the reasons for my view is unnecessary because, for the most part, Justice Durham’s concurring opinion in Sizemore v. Kulongoski, 322 Or 229, 237, 905 P2d 1146 (1995) (Durham, J., concurring), explains sufficiently my own view of the separation of powers problem that this court’s role in initiative petition cases presents. Nevertheless, a brief supplemental discussion of this issue is in order.
*276It is clear that the legislature may not pass a statute that requires this court to draft a ballot title, any more than it could direct this court to pave Oregon’s roads, run Oregon’s prisons, or prescribe administrative rules for operating the state lottery, because this court’s performance of those tasks would violate Article III, section 1. It follows ineluctably, I believe, that ORS 250.085(5), to the extent that it requires this court to modify a ballot title, offends Article III, section 1: The impermissibility of imposing the greater duty — drafting — subsumes the impermissibility of imposing the lesser duty — modifying.
The principle of separation of powers prohibits this court from engaging in nonjudicial functions. Modifying a ballot title is just such a nonjudicial function.
Accordingly, I concur with the majority’s opinion, because it involves only an appropriate judicial function — a determination that the ballot title certified by the Attorney General complies with applicable legal standards.
ORS 250.085(5) provides:
“The court shall review the title for substantial compliance with the requirements of ORS 250.035, and shall certify a title meeting this standard to the Secretary of State.”
Article III, section 1, of the Oregon Constitution, provides:
“The powers of the Government shall be divided into three separate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of anotherM”