dissenting.
The majority holds that the ballot title for the proposed initiative measure at issue in this case does not comply substantially with the standards for ballot titles set forth in ORS 250.035(1) (1993).1 Therefore, in accordance with its statutory duty, ORS 250.085(5) (1993),2 the majority drafts and certifies a ballot title different than the title prepared by the Attorney General. In so doing, the majority concludes that the performance of that statutory duty — the drafting and certification of a different ballot title — does not violate the separation of powers principle embodied in Article III, section 1, of the Oregon Constitution. Because I conclude that, insofar as ORS 250.085(5) (1993) directs this court, if a ballot title prepared by the Attorney General does not comply substantially with statutory standards, to draft and certify a different ballot title that does meet those standards, that statute offends the separation of powers principle embodied in Article III, section 1, of the Oregon Constitution. I, therefore, respectfully dissent.3
The Oregon Constitution is the source of power for each branch of the Oregon government. Article IV, section 1(1), of the Oregon Constitution provides:
*56“The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.”
Article IV, sections l(2)(a) and l(3)(a), reserve to the people the initiative and referendum powers, respectively.
Article VII (Amended), section 1, provides in part:
“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law.”
Additionally, Article III, section 1, provides:
“The powers of the Government shall be divided into three seperate (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 another, eoccept as in this Constitution expressly provided.” (Emphasis added.)
The Oregon Constitution compels the separation of powers among the branches of government4 in two ways. First, the Oregon Constitution affirmatively assigns separate powers to each branch of government. Second, an additional section expressly forbids an officer of one branch of government from exercising the distinct functions of another branch unless the Oregon Constitution otherwise expressly provides. Therefore, without such express constitutional authority, a statute that requires the Judicial Branch to exercise legislative functions is invalid. See City of Enterprise v. State, 156 Or 623, 69 P2d 953 (1937) (statute that, among other things, vested court with power to levy taxes, fix salaries of municipal officers, and effect municipal contracts violated Article III, section 1, of the Oregon Constitution).
The Oregon Supreme Court may not act legislatively or encroach on the functions of another branch of government merely because strong policy considerations favor the exercise of extra-judicial functions. “Our task * * * in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations *57by the drafters; it is not to abandon these principles when this fits the needs of the moment.” State v. Kessler, 289 Or 359, 362, 614 P2d 94 (1980).
As Justice Linde, formerly of this court, observed in regard to the federal constitution:
“The Constitution directs governments how to act and how not to act. The Constitution does not say that a government may act contrary to those directives if judges believe that the government has good enough reasons to do so.” Hans Linde, Who Must Know What, When, and How: The Systemic Incoherence of “Interest” Scrutiny, in Public Values in Constitutional Law 219, 219 (Stephen E. Gottlieb ed., 1993).
That principle applies equally to the Oregon Constitution. The Oregon Supreme Court may not draft and certify a ballot title different from the one certified by the Attorney General merely because the Legislative Branch directs this court to do so, or because this court believes that it plays an important part in the initiative and referendum process when it does so.
I begin my analysis by reviewing the process by which a ballot title reaches this court for certification. After a prospective petition for an initiative measure is submitted to the Secretary of State, the Secretary of State sends copies of the proposed initiative measure to the Attorney General. ORS 250.065(2). The Attorney General then prepares a draft ballot title for the proposed initiative. ORS 250.065(3).
ORS 250.035(1) (1993) mandated three components for a ballot title: (1) a Caption that reasonably identifies the measure’s subject; (2) a Question that plainly phrases the measure’s chief purpose; and (3) a concise and impartial Summary that summarizes the measure and its major effect. Nelson v. Roberts, 309 Or 499, 502, 789 P2d 650 (1990).5 Additionally, ORS 250.035(2) (1993) mandated that the ballot title “not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election.” After the Attorney General prepares a ballot title, the public may submit written comments concerning that *58title during the comment period. ORS 250.067(1). If an elector — a person qualified to vote under Article II, section 2, of the Oregon Constitution6 — timely submits written comments during the comment period, the elector, if dissatisfied with the ballot title certified by the Attorney General, may petition this court to “seekG a different title.” ORS 250.005(2); ORS 250.085(2) (1993).7
Under the statutory scheme relevant to the ballot title at issue in this case, the Legislative Assembly gives this court two primary responsibilities when we receive a petition that seeks a different ballot title. If this court, on review, determines that the ballot title for a proposed initiative measure certified to the Secretary of State by the Attorney General complies substantially with the statutory standards set forth in ORS 250.035(1) and (2) (1993), ORS 250.085(5) (1993)8 directs this court to approve and certify that ballot title to the Secretary of State. If, however, this court determines that the ballot title certified to the Secretary of State by the Attorney General for a proposed initiative measure does not comply substantially with those statutory standards, ORS 250.085(5) (1993) directs this court to draft and certify a ballot title that does meet those statutory requirements. It is the nature of the act of drafting and certifying a different ballot title that raises separation of powers concerns.
This court’s act of drafting and certifying a ballot title different than the one prepared by the Attorney General is legislative in nature, because it entangles the court in the enactment of direct legislation. The enactment of direct legislation through a ballot measure is a function of the Legislative Branch of government:
“By the adoption of the initiative and referendum into our constitution, the legislative department of the State is *59divided into two separate and distinct law-making bodies. There remains, however, as formerly, but one legislative department of the State. It operates, it is true, differently than before — one method by the enactment of laws directly, through that source of all legislative power, the people; and the other, as formerly, by their representatives!.]” Straw v. Harris, 54 Or 424, 430-31, 103 P 777 (1909).
See also Article IV, section 1, of the Oregon Constitution (the people exercise a legislative function through the initiative and referendum processes).
Under the statute, the drafting of the ballot title is an important necessary step in the enactment of any initiative measure. It is the ballot title, not the full text of the measure itself, that voters have before them when casting their votes. See ORS 254.145 (setting forth the design and contents of official ballots). The wording of the ballot title greatly influences the success or failure of a particular measure. Moreover, the ballot title becomes part of the legislative history that courts utilize in interpreting measures that are approved by the voters. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994).
Thus, when this court drafts and certifies a ballot title for a proposed initiative measure that is different than the ballot title certified by the Attorney General, it performs a crucial preliminary step in the legislative process. As this court has recognized in the past,
“the writing of ballot titles is not a judicial but a legislative or political function. Normally, appeals may be taken only from judicial bodies, and, generally, the doctrine of the separation of powers prohibits courts from infringing upon legislative functions.
“The preparation of a ballot title, like the writing of a title for a legislative bill, requires construction and interpretation of the measure itself. The purpose of a ballot title is to guide and inform the voters in a future election. A court which writes a ballot title for an initiative measure knows that the title which it is writing will be printed upon the ballot if enough signatures are procured for the measure, and may be accepted by the signers and voters as an index to the meaning of the measure. Should the measure become involved in political discussion, the ballot title may be invoked by partisans to settle some of the debates. Thus, in a measure, the *60court which wrote the title would find itself drawn into the controversy as counsel by the side served by the title. If the measure is adopted at the election and if it later becomes the subject of judicial controversy involving its true interpretation, the court may find that either the appellant or the respondent will wish to contest the interpretation manifested in the ballot title which the court wrote.” Richardson v. Neuner, 183 Or 558, 562-63, 194 P2d 989 (1948).9
The drafting of the ballot title is akin to the writing of a title for a legislative bill. Preliminary steps of the legislative process, such as the drafting of titles for legislative bills, or the drafting of ballot titles, are internal processes committed exclusively to the other branches of government. The judiciary should play no role in those legislative functions in the absence of express constitutional authorization. By requiring this court to draft and certify a ballot title to the Secretary of State that is different than the ballot title certified by the Attorney General, the pertinent statutory scheme makes this court an active participant in the legislative process.
The exercise of such a political or legislative function by this court unduly entangles this court in the internal workings of a separate branch of government. The statutory scheme that directs the Judicial Branch to revise ballot titles vests in the Judicial Branch the power to influence the passage or failure of legislative proposals.10 In my view, vesting such power in the judiciary violates Article III, section 1, of the Oregon Constitution.
*61It is true, as the majority notes, that under Article III, section 1, an officer of one branch may exercise the functions of another if the Oregon Constitution “expressly provides.” Nowhere in the Oregon Constitution, however, is there an express grant to the Judicial Branch to perform the legislative function of drafting and certifying a ballot title for a proposed initiative measure.
The majority finds an express grant in Article IV, section l(4)(b), which provides:
“Initiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith.” (Emphasis added.)
That section authorizes the Legislative Assembly to adopt laws concerning the submission of initiative and referendum measures as long as they are not inconsistent with other constitutional provisions. Article IV, section l(4)(b), however, does not expressly give the Legislative Assembly the power to involve the Judicial Branch in the legislative process. The phrase “and by law not inconsistent therewith” is not an express grant of power to the Legislative Assembly to compel officers of the Judicial Branch to carry out a function that, without question, is legislative in character.
By contrast, there are several examples in which the Oregon Constitution does expressly grant one branch of government the power to perform the functions of another. For example, Article IV, section l(4)(a), provides in part:
“Petitions or orders for the initiative or referendum shall be filed with the Secretary of State. The Legislative Assembly shall provide by law for the manner in which the Secretary of State shall determine whether a petition contains the required number of signatures of qualified voters.”
That section expressly gives one branch of government, the Executive, the power to administer part of the legislative process, the filing of petitions or orders for initiatives and referendums.
Another example in which the Oregon Constitution expressly grants one branch of government the power to perform the functions of another exists in Article XV, section 8:
*62“Notwithstanding the provisions of section 1 article III and section 10 article II of the Constitution of the State of Oregon, a person employed by the State Board of Higher Education, a member of any school board or employee thereof, shall be eligible to a seat in the Legislative Assembly and such membership in the Legislative Assembly shall not prevent such person from being employed by the State Board of Higher Education or from being a member or employee of a school board.”
Before the amendment of Article XV, section 8, of the Oregon Constitution, this court had held that a person who was a member of the Legislative Assembly could not teach in a public school because of the Article III, section 1, principle of separation of powers. Monaghan v. School District No. 1, 211 Or 360, 315 P2d 797 (1957).
In Monaghan, this court construed Article III, section 1, strictly to prohibit any mixing of legislative and executive functions. Indeed, the Monaghan court noted that this was a construction of “extreme precaution”; however, it believed that
“[this construction] expresses the considered judgment and deliberation of the Oregon Convention to give greater force to the concepts of separation by thus barring any official in one department of government of the opportunity to serve any other department, even as an employee.” Id. at 370.
Similarly, in In the Matter of Sawyer, 286 Or 369, 384, 594 P2d 805 (1979), this court held that Article III, section 1, of the Oregon Constitution prohibits a judge from engaging in employment as a regular part-time teacher for compensation at a state-funded college (a function of the Executive Branch).
Article III, section 1, therefore, is not merely an affirmative allocation of powers to the separate branches; it is stated also as a negation: “no person charged with official duties under one of these departmentsQ shall exercise any of the functions of another[.]” Or Const, Art III, § 1. Following Monaghan, to create an exception to the strict limitations of Article III, section 1, the Oregon Constitution was amended. The amendment, Article XV, section 8, expressly granted one part of the Executive Branch, employees of the State Board of Higher Education and of any school board, the power to exercise the functions of another, the Legislative Assembly.
*63The express grant evident in Article XV, section 8, is in contrast to the language of Article IV, section l(4)(b), which makes no provision for the sharing of power between separate governmental branches. Although Article IV, section l(4)(b), gives the legislature broad powers to make laws consistent with the people’s right to vote on initiative and referendum measures, it does not expressly grant the Judicial Branch the power to draft and certify ballot titles for proposed initiative measures.
The majority also relies on In re Ballot Title, 247 Or 488, 431 P2d 1 (1967), to support its conclusion that judicial drafting and certification of ballot titles different than those prepared by the Attorney General does not violate the separation of powers. The majority’s reliance on that case is misplaced. That case supports my view, not the majority’s. In In re Ballot Title, this court held unconstitutional a statute that required this court to review ballot titles prepared by the Attorney General, regardless of whether a challenge was brought by a particular party, and to certify a substitute title if the Attorney General’s ballot title was not sufficient. Id. at 491-92. The court said that the statute attempted “to require the court to render a nonjudicial advisory opinion,” id., and that “the present statute seeks to have the court perform a non-judicial function, contrary to the prohibition of [Article] III, [section] 1.” Id. at 495.
The majority attempts to distinguish In Re Ballot Title by arguing that “the current statutory scheme has none of the same infirmities” as the statute held unconstitutional in that case. I disagree. Although ORS 250.085(5) (1993) creates the trappings of administrative adjudication for the process of judicial review of a ballot title, its requirement that this court compose a different ballot title if the Attorney General’s ballot title is deemed insufficient is identical to the requirement held unconstitutional in In Re Ballot Title. The function of creation of a new ballot title is not transformed from its legislative character by the addition of adjudicative procedures to the ballot title review process. The majority’s attempt to distinguish In Re Ballot Title on that basis is unavailing.
The view expressed in Justice McAllister’s concurring opinion in In re Ballot Title is correct:
*64“The preparation of a ballot title * * * is either a legislative or an executive function. The drafting of a ballot title by this court would be the exercise by the judicial department of a function of another department of government. This court is prohibited by the express language of the constitution from exercising a legislative or executive function and the same language prohibits the legislature from imposing a legislative or executive function upon the court. I prefer to rest our decision on the separation of powers doctrine and therefore concur in the result of the majority opinion.” Id. at 496 (McAllister, J., concurring).
Recognizing the gravity of even limited intrusions by one branch of government into the functions of another, this court in Monaghan concluded its opinion “with the words of Madison, taken from 1 The Federalist, p 340”:
“ Tt is equally evident that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.’ (Emphasis supplied.)” Mon-aghan, 211 Or at 377.
In summary, I believe that, to the extent that ORS 250.085(5) (1993) directs this court to draft and certify a ballot title for a proposed initiative measure that is different than the ballot title prepared by the Attorney General, it requires this court to engage in a legislative function and makes this court an active participant in the legislative process. In my view, the involvement of this court in the legislative process, by drafting and certifying a ballot title for a proposed initiative measure, violates the separation of powers guaranteed by Article III, section 1, of the Oregon Constitution. I would, therefore, dismiss this case for lack of jurisdiction. Accordingly, I respectfully dissent.
Durham, J., joins in this dissenting opinion.The 1995 Oregon Legislative Assembly made significant amendments to OES 250.035 (1993). Or Laws 1995, ch 534, § 1. Those changes, however, do not apply to the ballot title in this case. See Or Laws 1995, ch 534, § 20 (provisions of act apply to initiative and referendum petitions for which a prospective petition is filed on or after effective date of act). Because the prospective petition in this case was filed before the effective date of the act, July 7,1995, the earlier version of the law applies.
The 1995 Oregon Legislative Assembly made less significant changes to ORS 250.085 (1993). Or Laws 1995, ch 534, § 2. These changes also do not apply to the ballot title in this case. Or Laws 1995, ch 534, § 20.
Because the majority reviews the Attorney General’s certified ballot title and drafts and certifies a ballot title different than the one certified by the Attorney General, I do not address the question whether judicial review of a ballot title under ORS 250.085(5) (1993), unaccompanied by certification of a different ballot title by this court, violates the separation of powers principle embodied in Article III, section 1, of the Oregon Constitution.
Although Article III, section 1, of the Oregon Constitution uses the term “departments,” in this opinion, I use the more common term “branch” or “branches.”
Former ORS 250.039 also required that a ballot title for a proposed initiative measure meet minimum readability standards designated by the Secretary of State. Former ORS 250.039 was repealed by the 1995 Legislative Assembly. Or Laws 1995, ch 534, § 19. That Act does not apply to the ballot title in this case. Id. at § 20.
Only an elector is entitled to petition for this court’s review of a ballot title for a state measure. Brown v. Roberts, 309 Or 667, 669, 791 P2d 488 (1990).
With a limited exception, the elector may raise in front of this court only those arguments that were presented in writing to the Secretary of State during the comment period. ORS 250.085(6) (1993).
ORS 250.085(5) (1993) provides:
“The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State.”
In Richardson v. Neuner, 183 Or 558, 562-63, 194 P2d 989 (1948), this court nevertheless concluded that, when the Attorney General drafts a ballot title, the Attorney General acts in a quasi-judicial capacity. In my view, that conclusion was erroneous and cannot be justified in view of the court’s correct discussion concerning how the drafting of ballot titles is a legislative or executive function. See Dagwell et al v. Thornton et al, 199 Or 8, 12-16, 259 P2d 125 (1953) (Warner, J., dissenting) (criticizing Richardson and concluding that judicial review of ballot titles violates Article III, section 1).
In no way do I mean to suggest that we who now are on this court, or members of this court at any time, have attempted to influence the passage or failure of legislative proposals through manipulation of ballot titles. Rather, as this court has stated in the past:
“Our concern [regarding separation of powers violations] is not with what has been done but rather with what might be done, directly or indirectly, if one person is permitted to serve two different departments at the same time. The constitutional prohibition is designed to avoid the opportunities for abuse arising out of such dual service whether it exists or not.” Monaghan v. School District No. 1, 211 Or 360, 376, 315 P2d 797 (1957).