Earls v. Myers, (SC S47326)

• Decision Date: 06 April 2000
• Docket Number: (SC S47326)
• Citation: 330 Or. 171,999 P.2d 1134
• Parties: Kevin C. EARLS, Petitioner, v. Hardy MYERS, Oregon Attorney General, Respondent.
• Court: Oregon Supreme Court

999 P.2d 1134

330 Or. 171

Kevin C. EARLS, Petitioner, v. Hardy MYERS, Oregon Attorney General, Respondent.

(SC S47326)

Supreme Court of Oregon, En Banc.

Argued and Submitted March 22, 2000.

Decided April 6, 2000.

Bruce A. Bishop, Harrang Long Gary Rudnick, P.C., Salem, argued the cause and filed the petition for petitioner. With him on the petition was James E. Mountain, Jr., Salem.

Rolf Moan, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

DURHAM, J.

Petitioner seeks review of a ballot title for a proposed initiative measure. Petitioner is an elector who timely submitted comments concerning the Attorney General's draft ballot title. Therefore, he is entitled to petition for review of the Attorney General's certified ballot title. ORS 250.085(2).

In addition to defining the terms used and limiting its scope, the proposed measure would enact the following provisions as a statute:

"SECTION 2. All managed health care plans offered by a managed care entity, all health insurance policies and all casualty insurance policies provided to residents of Oregon shall:

"(1) Provide for patient freedom of choice of health care physician and primary care physician among all physicians providing medical services within the physician's professional scope of practice; and

"(2) Provide the same policy benefits, rate of reimbursement and extent of covered expenses for all health care physicians and primary care physicians provided the physician is providing care within that physician's professional scope of practice.

"SECTION 3. (1) All managed care plans offered by a managed care entity, all health insurance policies and all casualty insurance policies subject to sections 1 to 5 of this 2000 Act may require the enrollee or insured person to select a health care physician as a primary care physician. Selection of a primary care physician limits the applicability of section 2(1) of this 2000 Act to the selected primary care physician and referrals by the primary care physician to other health care physicians. Enrollees and insured persons are permitted to change primary care physicians at will, except that a managed care plan, health insurance policy or casualty insurance policy may restrict the enrollee or insured person to changing primary care physician no more than twice in a 12-month period.

"(2) An enrollee or insured person has the right to select a health care physician or primary care physician in accordance with the following categories:

"(a) For medical services, a Doctor of Medicine or a Doctor of Osteopathy licensed in accordance with ORS chapter 677, or a Doctor of Chiropractic licensed in accordance with ORS chapter 684;

"(b) For dental care service, a Doctor of Medical Dentistry or a Doctor of Dental Science as licensed in accordance with ORS chapter 679; and

"(c) For vision care services, a Doctor of Medicine licensed in accordance with ORS chapter 677 or a Doctor of Optometry licensed in accordance with ORS chapter 683."

The Attorney General certified the following ballot title for the measure:

"REQUIRES: FREEDOM TO CHOOSE HEALTH CARE PROVIDER; EQUAL REIMBURSEMENT, COVERAGE

"RESULT OF `YES' VOTE: `Yes' vote requires patient's freedom to choose health care provider; requires equal reimbursement rates, coverage.

"RESULT OF `NO' VOTE: `No' vote rejects requiring freedom to choose health care provider; rejects equal reimbursement rates, coverage.

"SUMMARY: Modifies health care provider contracting options by requiring health and casualty insurance policies, managed health care plans to provide same reimbursement rates, coverage, regardless of care provider. For medical services, allows patient's choice of physician or chiropractor as primary care, health care provider. For vision services, allows choice of ophthalmologist, optometrist. Patients may change primary care provider, but can be limited to two changes over twelve months. Excludes Oregon Medical Assistance Program, Oregon Health Plan, student health insurance programs, public employee benefits, inmates, workers' compensation."

Petitioner objects to each segment of the Attorney General's ballot title. We review those objections in order, bearing in mind that we must decide only whether the Attorney General's ballot title complies substantially with statutory requirements. ORS 250.085(5).¹See also Mabon v. Kulongoski, 325 Or. 121, 126, 934 P.2d 403 (1997) ("The review statutes do not authorize this court to draft a `better' or `improved' title; substantial compliance with the requirements stated in ORS 250.035 is sufficient.").

Petitioner first challenges the Attorney General's ballot title caption. The ballot title caption must reasonably identify, within 10 words, the subject matter of the measure. ORS 250.035(2)(a) (1997).² To determine whether a caption accurately states the subject matter of a proposed initiative measure, "we examine the text of the measure itself * * *." Doell v. Myers, 328 Or. 635, 640, 984 P.2d 266 (1999).

Petitioner first argues that the Attorney General's caption fails to identify the subject matter of the measure because it does not mention how the measure would change the ways in which physicians and other specified health care providers may contract and be paid for their services. The Attorney General responds that the caption reasonably identifies the subject matter of the measure because it states that the measure "requires * * * equal reimbursement, coverage," thereby informing voters that the subject of the measure encompasses the options for insurers and managed health care plans when contracting with health care providers.

We agree with the Attorney General. The measure requires that specified health care plans and insurance policies "[p]rovide the same policy benefits, rate of reimbursement and extent of covered expenses" to specified health care providers. The phrase "requires * * * equal reimbursement, coverage" reasonably identifies that subject matter within the constraints of the word limitation imposed on the caption and, thus, substantially complies with statutory requirements.

Petitioner further argues that the caption uses terminology that is not objective. Particularly, petitioner contends that the phrase "freedom to choose" is inappropriate for a ballot title because it is not neutral and might mislead voters into supporting the proposal without understanding its true effects. The Attorney General responds that the phrase "freedom to choose" accurately identifies the subject matter of the measure by indicating that the measure would prevent insurers and managed health care plans from restricting patients' freedom to choose their own health care providers. The Attorney General further observes that the phrase mirrors wording used in the measure itself.

We agree with petitioner that, in this context, the phrase "freedom to choose" is likely to prejudice voters regarding the measure. See Marr v. Thornton, 237 Or. 503, 504, 392 P.2d 458 (1964) (deleting phrase "right-to-work" from ballot title caption as slogan that amounted to argument for measure and that likely would create prejudice). It is true that the phrase "freedom to choose" appears in the measure itself. However the Attorney General and this court are not constrained to certify a ballot title that is slanted toward passage or defeat of the measure. See Dirks v. Myers, 329 Or. 608, 616, 993 P.2d 808 (2000) (court has resisted attempts to incorporate into ballot title terms or phrases that "tend more to promote or defeat passage of the measure than to describe its substance accurately."). Proponents of a measure are not entitled to engineer a favorable ballot title by incorporating politically inflated terms or phrases in the text of the measure in order to advance its passage. Cf. Bernard v. Keisling, 317 Or. 591, 596-97, 858 P.2d 1309 (1993) (court will not hesitate to look beyond words of measure if those words obfuscate subject, chief purpose, summary, or major effect of measure).

We have considered petitioner's other objections to the caption and reject them without further discussion.

We conclude that petitioner is correct that the caption does not comply substantially with statutory requirements and requires modification to remove the phrase "freedom to choose." To remedy that problem, we rephrase the caption to state that the measure would afford to patients the opportunity to select their health care provider. Additionally, because the phrase "freedom to choose" also...