dissenting.
Whatever personal views one may have on the subject of capital punishment, all should agree that the decision to be made by the voters of Oregon on this proposal is of extreme importance. As such, it is also of extreme importance that the voters be as fully informed about this proposal as possible within the 75 words permitted for a ballot title.
The ballot title as prepared by the Attorney General gives the direct impression that the death penalty will be mandatory only for those aggravated types of criminal homicide as listed in the ballot title as proposed by him. This is incorrect.
The proposed constitutional amendment provides as follows:
"(4) For the purpose of imposing a sentence of death under this section, 'murder’ means criminal homicide that:
"(a) Is committed intentionally;
"(b) Is committed by an individual, acting either alone or with one or more individuals, who commits or attemps to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in the first degree or sodomy in the first degree and in the course of and in furtherance of the crime he is commiting or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of an individual other than one of the participants; or
"(c) Is expressly defined by the statutes of this state as murder for which a penalty of death shall be imposed under this section.” (Emphasis added)
*30ORS 163.005 now defines "criminal homicide” as "murder, manslaughter or criminally negligent homicide.” ORS 163.125 now defines "manslaughter” to include homicide "committed recklessly,” among other things.
At the time of oral argument the Solicitor General, representing the Attorney General, was asked whether under section 4(c) of the proposed amendment the legislature would have the power to add other criminal homicides, such as reckless homicide, to those subject to the mandatory death penalty. His answer was that the proposed amendment would confer that power upon the Oregon legislature.1
In my judgment the fact that the proposed amendment would confer such power upon the legislature is a fact of extreme importance to Oregon voters in deciding whether or nor to vote for the proposed constitutional amendment. At the time of oral argument the Solicitor General stated that the power of the legislature to add other criminal homicides to those subject to the death penalty was the "next most important fact” that "the public needs to know” about the proposed amendment, but said that this fact could not be explained within the 75-word limit.
The majority opinion appears to agree, upon the ground that "there is a reasonable basis for the Attorney General to make the claim that the felonies should be specified rather than state that future legislatures can enlarge the number of crimes for which the death penalty must be imposed.”
In my judgment, however, the ballot title prepared by the Attorney General can well be revised so as to *31make clear to the voters that "next most important fact” that "the public needs to know.” This can be done and still list the specific felonies to which the felony-murder rule is applicable.2 For these reasons I am of the opinion that the ballot title as prepared by the Attorney General is at least "insufficient,” within the meaning of ORS 254.077(1).
McALLISTER, J., and HOWELL, J., join in this dissent.In the course of that explanation the Solicitor General stated that the proposed constitutional amendment would "freeze” the present statutory definitions of homicide committed intentionally or in the course of various major felonies (as defined in ORS 163.115) as "murder” for the purpose of the mandatory death penalty, but would "leave open to the legislature, should they choose to, to define other crimes as 'murder.’ They could reinstate, for instance, reckless murder as 'murder,’ rather than as manslaughter in the first degree.”
This could be accomplished by the following ballot title:
IMPOSES DEATH PENALTY FOR MURDER
Proposed constitutional amendment requires death penalty by gas upon conviction of murder, to include criminal homicide committed intentionally or by individual or accomplice (subject to specified defenses) in course of first degrees of arson, burglary, escape, kidnapping, rape, robbery or sodomy, and such other homicides as may later be defined by statute as "murder.” Governor has no power to commute, reprieve or pardon, but may suspend execution for 72 hours for filing of legal papers.