Lewis v. Keisling

• Decision Date: 06 September 1994
• Parties: Kenneth LEWIS, Petitioner, v. Phil KEISLING, Secretary of State of the State of Oregon, Scott Lively, Kathy Phelps, Kathleen Beaufait, Julie Davis and Katherine McDowell, Respondents. SC S41550.
• Court: Oregon Supreme Court

Page 857

879 P.2d 857

320 Or. 13

Kenneth LEWIS, Petitioner, v. Phil KEISLING, Secretary of State of the State of Oregon, Scott Lively, Kathy Phelps, Kathleen Beaufait, Julie Davis and Katherine McDowell, Respondents.

SC S41550.

Supreme Court of Oregon.

Submitted on the Record and Petition for Review of Ballot

Measure Explanatory Statement Aug. 15, 1994.

Decided Sept. 6, 1994.

Scott J. Meyer, of the ACLU Foundation of Oregon, Inc., Portland, filed the petition for petitioner.

Katherine A. McDowell, Portland, filed the response in propria persona and for respondent Julie Davis.

Michael D. Reynolds, Asst. Sol. Gen., Salem, waived appearance for respondent Phil Keisling.

No appearance for respondents Scott Lively, Kathy Phelps, and Kathleen Beaufait.

Before CARSON, C.J., GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and DURHAM, JJ., and RICHARDSON, ^* J. pro tem.

GILLETTE, Justice.

This is an original proceeding for judicial review of a Ballot Measure Explanatory Statement ¹ for Ballot Measure 13, a proposed constitutional amendment that is to be submitted to the voters at the general election in November. Petitioner is an elector dissatisfied with the Explanatory Statement. Respondent Keisling, as Secretary of State, is responsible for placing an Explanatory Statement for the ballot measure in the Voters' Pamphlet. The other respondents make up the committee that, pursuant to ORS 251.215, prepared the Explanatory Statement. ² The measure amends Article I of the Oregon Constitution by adding a section dealing with government treatment of the subject of homosexuality. See Mabon v. Keisling, 317 Or. 406, 856 P.2d 1023 (1993) (explaining, in some detail and in the context of a ballot title review, the operation of the proposed constitutional provision). We conclude that the Explanatory Statement is not deficient in the manner argued by petitioner. We therefore certify the Explanatory Statement filed by the committee.

As already noted, the text of the ballot measure now before us, together with a review of the nature and purpose of the measure, are set out at length in Mabon v. Keisling, supra. We shall not repeat those materials here. The committee created to write an Explanatory Statement for the measure filed the following statement:

"MEASURE 13 EXPLANATORY STATEMENT

"The measure would amend the Oregon Constitution.

"The measure prohibits state and local governments from creating classifications based on homosexuality. These governments could not enact laws or policies establishing affirmative action, quotas, or class status based on homosexuality. Governments could not enact laws or policies using classifications such as 'sexual orientation,' 'domestic partnerships' or similar designations based on homosexuality. Governments could not grant marital status or spousal benefits on the basis of homosexuality.

"State and local governments could not advise or teach children, students, or employees that homosexuality equates legally or socially with race, religion, or other protected classifications. Governments could not spend public funds that directly or incidentally promote or express approval of homosexuality.

"A state or local government could take personnel action based on a public employee's private lawful sexual behavior only if that behavior disrupts the work place or otherwise violates this measure.

"State and local governments could not deny business licenses, permits or services otherwise due under existing statutes or limit the holding or exercise of constitutional rights.

"The measure would place certain limits on library materials referencing homosexuality by limiting the availability of these materials to adults only. Adults would have access to library materials referencing homosexuality if they are written for adults and meet local standards as established through existing library review procedures.

"This measure does not require any action by the legislature in order to take effect."

An Explanatory Statement placed in the Voters' Pamphlet is supposed to be "an impartial, simple and understandable statement explaining the measure." ORS 251.215. Under ORS 251.235, this court reviews a challenged Explanatory Statement to determine whether it is "insufficient or unclear." A statement is "insufficient" if it is not impartial or if it is "potentially misleading." Homuth v. Keisling, 314 Or. 214, 220, 837 P.2d 532 (1992). Petitioner argues:

"The explanatory statement filed by the committee fails to meet this standard of review because it does not explain that the measure prevents state and local governments from prohibiting discrimination against a defined class of citizens[, i.e., homosexuals]. Because the statement omits an explanation or even a reference to this major component of the measure, it is not 'impartial' and it is 'insufficient and unclear.' Moreover, the statement actually misleads voters by omitting an explanation of this important aspect of the measure."

To remedy this alleged deficiency, petitioner (and the dissent) would have this court insert into the Explanatory Statement between the present second and third sentences of that statement the following sentence: "State and local governments could not enact laws or policies which prohibit discrimination based on homosexuality." The dissent agrees with that suggestion. For the reasons that follow, we do not.

It is true that, as a general proposition, the idea that petitioner wishes to have inserted in the Explanatory Statement is a correct description of one of the effects of the ballot measure. We so held in Mabon v. Keisling, supra, 317 Or. at 411-12, 413-14, 856 P.2d 1023. But the important thing about the Mabon case is that we also held in that opinion that it was inappropriate, in the context of a ballot title, for the Attorney General to use the word "discrimination" in an impartial description of the proposed measure, because use of such a word potentially "loaded" the inquiry and potentially created a "pejorative" description of the measure. Id. at 416, 856 P.2d 1023.

We offered two reasons for our ruling. The first was a matter of English--the word was being used in a phrase that had the undesirable effect of creating a virtually unreadable triple negative. The second reason spoke precisely to the issue presented in this case. We said:

"[T]he use of the word 'discrimination,' while accurate, is better avoided (if possible), because of the negative context in which that word normally is used. While surely not intended that way by the Attorney General, saying that governments cannot oppose discrimination can be a 'loaded' description. The same ideas are communicated in a less pejorative manner by * * *substituting the following: 'create classifications based on homosexuality.' "

Ibid. Taking us at our word, the committee in this case used virtually the same phrase, "creating classifications based on homosexuality," in the present Explanatory Statement.

Unlike petitioner and the dissent, we can perceive no principled basis for holding, as petitioner's argument and the dissent would require us to hold, that a term that as a matter of law had to be taken out of a Ballot Title has suddenly become so impartial that now it must, as a matter of law, be put into an Explanatory Statement. Both documents, the Ballot Title and the Explanatory Statement, are intended to provide the same kind of unbiased information to the voter. The greater length of the Explanatory Statement permits a more detailed examination of a proposed measure, but length does not change the nature of the wording that petitioner and the dissent wish to include: That wording remains potentially "loaded" and "pejorative." ³

The statement filed by the committee sufficiently and clearly describes the effects of the proposed measure, albeit in wording different than that sought by petitioner. No change to the Explanatory Statement is warranted.

Ballot Measure Explanatory Statement certified.

Pursuant to ORAP 1.20(4) and notwithstanding ORAP 11.30(9), this opinion will become effective when the appellate judgment issues. The State Court Administrator shall issue the appellate judgment at noon on September 8, 1994, unless a petition for reconsideration is both filed with and physically received by the Office of the State Court Administrator by that time. A timely petition for reconsideration will stay issuance of the appellate judgment until the court acts on all timely petitions for reconsideration.

UNIS, Justice, dissenting.

The result in this case, in my view, is so contrary to reason and to the universally understood plain meaning of Ballot Measure 13 that I feel compelled to dissent.

The Explanatory Statement for an initiated measure must be "impartial, simple and understandable" and not "insufficient or unclear." ORS 251.215(1); ORS 251.235; Conkling v. Keisling, 316 Or. 390, 394-95, n. 2, 852 P.2d 183 (1993). A statement is "insufficient" if it is not impartial or if it is "potentially misleading." Homuth v. Keisling, 314 Or. 214, 220, 837 P.2d 532 (1992). See also June v. Roberts, 310 Or. 244, 797 P.2d 357 (1990) (same); Sollis v. Hand, 310 Or. 251, 796 P.2d 1188 (1990) (same).

In my view, the Explanatory Statement for Ballot Measure 13, ¹ as filed by the committee and today certified by the majority, is insufficient and misleading, because it does not explain that the measure prevents state and local governments from prohibiting discrimination against a defined class of citizens. It cannot be disputed that a major effect of the measure is that it prevents governments from barring discrimination against homosexuals. ² This court recognized that repeatedly in Mabon v. Keisling, 317 Or. 406, 856 P.2d 1023 (1993), when considering challenges to the ballot title for this measure. In Mabon, the court stated:

"In this case, we do not agree that the Attorney General has engaged in 'speculation' in describing the measure as one that will...