dissenting.
After my dissenting opinion in Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 55, 902 P2d 1143 (1995), I have filed dissenting opinions in all subsequent cases in which this court has drafted and certified a ballot title that is different from the one prepared by the Attorney General. In each of those opinions, I have said:
“[T]o the extent that ORS 250.085(5) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different from the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution.” See, e.g., Sizemore v. Kulongoski, 322 Or 229, 239, 905 P2d 1146 (Unis, J., dissenting), recon allowed 322 Or 387, 908 P2d 825 (1995).
I continue to adhere to that view.
There is an additional reason why I disagree with the majority’s decision. The majority in this case certifies a ballot title that closely resembles the ballot title certified in Ascher v. Kulongoski (Elections Division #47), 322 Or 531, 909 P2d 1223 (1996).1 While certifying two ballot titles that closely resemble each other, the majority avoids any discussion concerning the impact of ORS 250.035(6) on this court’s role in reviewing ballot titles and on its decision in this case. ORS 250.035(6) provides:
*528“To avoid confusion, a ballot title shall not resemble any title previously filed for a measure to be submitted at that election.” (Emphasis added.)
I believe that ORS 250.035(6) raises important questions that the majority should address.2
For instance, does ORS 250.035(6), as a literal reading of its text suggests, prohibit this court from certifying two or more ballot titles that resemble each other? If so, what should this court do when the Attorney General drafts two or more ballot titles that resemble each other? Which ballot title should the court certify? How does the court determine which ballot title was “previously filed”?
If ORS 250.035(6) requires that this court certify only the “previously filed” ballot title, does that statute violate the right of the people, guaranteed by the Oregon Constitution, to initiate laws and amendments? See Or Const, Art IV, § l(2)(a).3
ORS 250.035(6) was enacted by the 1995 legislature to replace former ORS 250.035(2), which provided:
“The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election.” (Emphasis added.)
In Rooney (Elections Division #13), a case in which I filed a dissenting opinion, this court interpreted former ORS 250.035(2). In that case, a majority of this court held that a ballot title could resemble a previously-filed title if the resemblance between the titles probably would not create confusion. Id. at 22-23. According to the Rooney decision, *529the court had some discretion under former ORS 250.035(2) in determining whether the existence of two or more ballot titles that resembled each other might create confusion among petition signers and voters. The text of the 1995 statute, however, is significantly different; it states, “to avoid confusion, a ballot title shall not resemble any title previously filed.” ORS 250.035(6) (emphasis added). The majority fails to consider whether that significant change in statutory language has any impact on the court’s role in reviewing ballot titles and on its decision in this case.
The legislative history of ORS 250.035(6) makes it clear that the 1995 legislature, at least, was aware of the many problems connected with the filing of multiple ballot titles for initiative measures. At a public hearing of the Senate Legislative Rules Committee concerning the enactment of ORS 250.035(6), David Fidanque of the American Civil Liberties Union testified:
“I * * * want[] to bring one issue to your attention that I wasn’t sure whether you had considered, which is the seemingly increasing practice of people ‘shopping’ for ballot titles. And probably the best example I can give you is the latest version of [a public policy group’s] initiatives. I believe seven different versions of that initiative were filed with the Secretary of State’s office on the same day this year. And the ballot title for each of those is being challenged in the Oregon Supreme Court. And we would suggest just deleting the language from the current [1993] statute[.]” Tape recording, Senate Legislative Rules Committee, May 1, 1995, Tape 59B at 330-70.
The majority fails to consider whether the 1995 legislature enacted ORS 250.035(6) in response to those concerns in order to prevent the filing of multiple ballot titles during one election period.
It is arguable that ORS 250.035(6) does not prohibit this court from certifying ballot titles that resemble each other. Instead, perhaps the statute requires that the Attorney General draft different ballot titles for initiative measures that resemble each other. If that was the intent of the statute, however, how does the Attorney General draft different ballot titles for identical or similar initiative measures? Would the existence of different ballot titles for the *530same or similar initiative measures confuse petition signers and voters who read those titles? Was not ORS 250.035(6) enacted by the 1995 legislature to avoid such confusion?
In summary, ORS 250.035(6) raises important questions that directly impact the court’s decision in this case. I believe that this court should not avoid addressing the legislature’s intent in enacting that statute.
The ballot title certified by the court in this case “resembles” not only the ballot title certified in Ascher (Elections Division #47), but also the ballot titles certified in Ascher v. Kulongoski (Elections Division #49), 322 Or 550, 909 P2d 1228 (1996), and Ascher v. Kulongoski (Elections Division #48 and #50), 322 Or 540, 910 P2d 372 (1996). In Ascher (Elections Division #48 and #50), the majority certifies two ballot titles that are identical.
In all of the “Ascher cases,” the certified ballot titles have the same caption and the same “yes/no” result statements. The only difference in these cases is that the final two sentences of the summary in Ascher (Elections Division #46), the final sentence of the summaries in Ascher (Elections Division #47) and Ascher (Elections Division #48 and #50), and the first and last sentences in Ascher (Elections Division #49) are worded slightly differently.
I note also that the ballot title certified in this case may resemble the ballot title certified in Nakamoto v. Kulongoski, 322 Or 181, 904 P2d 165 (1995). The ballot titles in both of these cases have identical captions and substantially similar summaries.
The majority avoids any discussion concerning the impact of ORS 250.035(6) on this case, holding that that issue was not raised by petitioners. Ascher (Elections Division #46), 322 Or at 524 n 4. That holding ignores this court’s statutory mandate under ORS 250.085(5), which provides that the Oregon Supreme Court “shall review [a ballot] title for substantial compliance with the requirements of ORS 250.035, and shall certify a title meeting this standard to the Secretary of State.” (Emphasis added.) That statute is in the form of a directive to this court — using the imperative “shall.” In light of that directive, this court, before certifying a ballot title, must ensure its substantial compliance with each of the requirements of ORS 250.035, including ORS 250.035(6).
Article IV, section l(2)(a), of the Oregon Constitution provides in part:
“The people reserve to themselves the initiative power, which is to propose law and amendments to the Constitution!.]”