Ballot Titles Must Disclose Removal of Pretrial Confinement Limits and Avoid Misleading “Cannot Be Prosecuted” Framing in Aid-and-Assist Measures

Introduction

In Paden / von Schlegell v. Rayfield (S072772), 375 Or 249 (2026), the Oregon Supreme Court reviewed the Attorney General’s certified ballot title for Initiative Petition 64 (2026) (“IP 64”). Petitioners Kelsey Paden and Christy Mason challenged the title as Oregon electors, while John von Schlegell—identified as the chief petitioner for IP 64—brought a separate challenge; the matters were consolidated. The respondent was Dan Rayfield, Attorney General of Oregon.

The dispute centered on whether the ballot title’s caption and “yes” result statement substantially complied with ORS 250.035(2). The court held they did not, primarily because (1) the title inaccurately suggested affected defendants “cannot be prosecuted,” and (2) it failed to alert voters to a major substantive effect of IP 64: eliminating existing statutory maximum periods of pretrial custody for “aid-and-assist” commitments, thereby authorizing potentially indefinite confinement until certain court findings occur.

Summary of the Opinion

The court applied the “substantial compliance” standard (ORS 250.085(5)) and concluded that the Attorney General’s ballot title failed to meet ORS 250.035(2) requirements for the caption (ORS 250.035(2)(a)) and “yes” result statement (ORS 250.035(2)(b)). It referred the ballot title back to the Attorney General for modification under ORS 250.085(8).

  • Caption defect: The caption’s statement that certain defendants “cannot be prosecuted” was misleading, because the prosecution continues even when trial cannot proceed due to an unfitness determination under ORS 161.370(2). The court also found it erroneous as a technical matter because “prosecution” can include post-trial proceedings, while IP 64 concerns pretrial aid-and-assist determinations.
  • Omission of a major effect: The caption failed to identify that IP 64 would override current statutory maximum permissible periods of pretrial custody (ORS 161.371(8)) and thus allow potentially indefinite detention absent specified court determinations.
  • “Yes” result statement defect: It repeated the misleading “cannot be prosecuted” framing and likewise failed to describe the major effect of eliminating the statutory maximum confinement period.

Analysis

Precedents Cited

The court’s analysis is anchored in well-developed Oregon ballot-title case law that treats the caption as a critical orienting device, requires neutral clarity, and obligates the Attorney General to describe major consequences—even where doing so requires explanation beyond the measure’s literal phrasing.

1) Hurst/Van Dusen v. Rosenblum, 366 Or 260, 461 P3d 978 (2020)

The court quoted Hurst/Van Dusen for two related propositions: (1) a caption must state the subject matter accurately “in terms that will not confuse or mislead” voters, and (2) a “yes” result statement must be modified if it is “ambiguous and therefore open to misinterpretation by a reasonable voter.” In Paden, the phrase “cannot be prosecuted” created precisely the kind of misleading takeaway that Hurst/Van Dusen condemns—suggesting criminal prosecution terminates, rather than recognizing that the case remains pending while restoration is attempted.

2) Towers v. Rosenblum, 354 Or 125, 310 P3d 1136 (2013)

The opinion relied on Towers to emphasize the caption’s function as the ballot title’s “headline” that frames all other sections. That “headline” role matters in Paden because an imprecise headline (“cannot be prosecuted”) and an incomplete one (omitting the removal of a confinement cap) mis-frames the measure’s core operation and stakes for the voter before they reach the remainder of the title.

3) Novick v. Myers, 337 Or 568, 100 P3d 1064 (2004)

The court cited Novick for the principle that the “yes” result statement should notify voters of the “result or results of enactment that would have the greatest importance to the people of Oregon.” That framing drove the court’s conclusion that the ballot title must identify the measure’s most consequential legal shift: replacing a statutory maximum confinement limit with a potentially open-ended commitment keyed to continuing judicial findings.

4) Caruthers v. Myers, 344 Or 596, 189 P3d 1 (2008)

Caruthers supplied the key methodological point: the Attorney General may need to “go beyond the words of a measure” to provide “accurate and neutral information.” The Attorney General argued that commenting on the length of confinement would be speculative. The court rejected that contention by treating the removal of the statutory maximum as a concrete legal effect, not a prediction about any particular defendant’s future. In other words, describing the measure’s authorization of potentially indefinite pretrial detention is an accuracy requirement, not speculation.

Legal Reasoning

The court’s reasoning proceeds in two steps corresponding to ORS 250.035(2)’s distinct requirements for the caption and the “yes” result statement.

1) Misleading use of “cannot be prosecuted”

The opinion distinguishes between (a) a defendant being unfit to proceed to trial under ORS 161.370(2) and (b) the broader concept of “prosecution.” The court agreed with petitioners that the prosecution does not cease when a defendant is found unable to aid and assist; rather, the case is paused procedurally while restoration is attempted. The court also added a technical point: “prosecution” can encompass post-trial proceedings, which makes the phrase overbroad and inaccurate for a measure targeting pretrial determinations.

2) Failure to disclose elimination of statutory maximum confinement and resulting potential for indefinite detention

Under current law, a defendant committed to a state mental hospital for restoration can be held pretrial only for “three years or the maximum length of imprisonment authorized by law for the alleged crime, whichever is shorter.” ORS 161.371(8). IP 64, by contrast, would constitutionally require commitment “until” either the defendant regains capacity to proceed or no longer requires hospital-level care, with no analogous temporal cap.

The Attorney General (and petitioner von Schlegell on this point) argued that identifying the duration consequences would be “improperly speculative.” The court rejected that premise: the legal change is the removal of a maximum and its replacement with commitment of potentially unlimited duration unless and until specified conditions are judicially found. That structural change is a “primary effect” that must be signaled in the ballot title’s most prominent components—especially where voters might otherwise assume limits like those in existing statutes remain.

3) Parallel deficiencies in the “yes” result statement

Because the “yes” result statement repeated the same misleading “cannot be prosecuted” framing and omitted the same major effect (elimination of the maximum confinement period), it failed ORS 250.035(2)(b)’s requirement of a “simple and understandable statement” describing the result of approval.

Impact

The decision’s practical significance lies less in any redefinition of constitutional criminal procedure and more in how Oregon ballot titles must communicate high-consequence effects when a measure alters existing legal limits on government custody.

  • Disclosure of removed safeguards: When an initiative removes an existing statutory “ceiling” on confinement and substitutes a condition-based endpoint, ballot titles must flag the resulting potential for indefinite detention as a major effect, not treat it as conjecture.
  • Precision in criminal-process terminology: Ballot titles should avoid shorthand that collapses distinct concepts (trial postponement due to unfitness versus termination of prosecution). This opinion signals heightened scrutiny of terms likely to create strong but inaccurate impressions.
  • “Beyond the text” remains obligatory where needed for neutrality: Invoking speculation will not excuse omission of a measure’s clear legal consequences, particularly consequences that change the baseline of state power over liberty.

Complex Concepts Simplified

  • “Aid and assist” / fitness to proceed (ORS 161.370): A defendant must be mentally able to understand the proceedings and help their lawyer. If not, the trial cannot go forward until capacity is restored.
  • Restoration commitment limits (ORS 161.371(8)): Current law caps how long a defendant can be held pretrial in a state hospital for restoration—generally no more than three years (or less, depending on the alleged crime’s maximum sentence).
  • Ballot title components (ORS 250.035(2)):
    • Caption: the “headline” identifying the measure’s subject matter.
    • “Yes” result statement: what happens if voters approve the measure.
    • “No” result statement: what happens if voters reject it.
    • Summary: a brief neutral explanation of the measure’s operation.
  • “Substantial compliance” (ORS 250.085(5)): The court does not demand perfection, but it will require changes when wording is materially misleading or when major effects are omitted.
  • “Potentially indefinite detention”: Not a prediction that any one person will be held forever; rather, a description of a legal framework with no fixed maximum duration, where confinement ends only if specified conditions are met.

Conclusion

Paden / von Schlegell v. Rayfield reinforces two ballot-title imperatives in Oregon: (1) terminology must accurately reflect the legal process at issue—here, that unfitness to proceed halts trial but does not mean a defendant “cannot be prosecuted”—and (2) when a measure removes an existing statutory limit on pretrial confinement, the ballot title must disclose that major effect, including the measure’s authorization of potentially indefinite detention absent qualifying court determinations. By referring the title back for modification, the court signaled that voter-facing summaries must candidly identify liberty-affecting legal changes that are central to a measure’s operation.