Mabon v. Keisling
| Decision Date | 03 September 1993 |
| Citation | 856 P.2d 1023,317 Or. 406 |
| Parties | Lon T. MABON, Petitioner, v. Phil KEISLING, Secretary of State, Respondent, and Peggy Norman and Liz Kaufman, Intervenors. Peggy NORMAN and Liz Kaufman, Petitioners, v. Phil KEISLING, Secretary of State of the State of Oregon, Respondent. SC S40331; S40316. |
| Court | Oregon Supreme Court |
Thomas A. Balmer, Deputy Atty. Gen., Salem, argued the cause for respondent. With him on the memorandum in response were Theodore R. Kulongoski, Atty. Gen., Virginia Linder, Sol. Gen., and Richard D. Wasserman, Asst. Atty. Gen., Salem.
Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the petition and memorandum in opposition for petitioners and intervenors, Peggy Norman and Liz Kaufman.
This original proceeding consolidates two challenges to a ballot title certified by the Attorney General for a proposed initiative measure that would add a new section to Article I of the Oregon Constitution. Pursuant to ORS 250.067(1), the challenging parties submitted to the Secretary of State timely written comments on the earlier, proposed ballot title. Consequently, they are entitled to bring these challenges to the certified ballot title. ORS 250.085(2) and (5). On review, we modify the ballot title and certify it as modified.
The text of the proposed initiative measure provides as follows:
The Attorney General certified the following ballot title to the Secretary of State for the proposed initiative measure:
Under ORS 250.085(4), we review ballot titles for substantial compliance with ORS 250.035 and 250.039. 1 Petitioner Mabon, one of the chief petitioners for the proposed initiative measure, challenges portions of the caption, the question, and the summary. Petitioners Norman and Kaufman challenge only the final sentence of the summary. We address the parties' arguments in that order.
ORS 250.035(1)(a) requires a caption of not more than ten words that "reasonably identifies the subject of the measure." In this case, Mabon objects to the portion of the caption that reads "GOVERNMENTS CANNOT BAR DISCRIMINATION AGAINST HOMOSEXUALS." Mabon contends that, with that portion of the caption, the Attorney General has not reasonably identified the subject of the measure, but rather has speculated about a potential effect of the measure.
This court has held that "[t]he Caption requires only identification of the subject matter of the measure; it should not be * * * a vehicle for conclusions about how a measure may affect legal rights and duties." Bauman v. Roberts, 309 Or. 490, 494, 789 P.2d 258 (1990) (emphasis in original). In this case, we do not agree that the Attorney General has engaged in "speculation" in describing the measure as one that will prevent governments from barring discrimination against homosexuals. As discussed more fully below, there can be no question that that will be one of the effects of the measure. Nevertheless, as noted, the role of the caption is reasonably to identify the measure's subject. We are not convinced that the Attorney General's caption, which emphasizes one particular effect of the measure, accomplishes that purpose. See Ransom v. Roberts, 309 Or. 654, 662, 791 P.2d 489 (1990) ().
If enacted, the impact of this measure would be broader than the effect that the Attorney General has chosen to emphasize in the caption. The measure would not simply prevent governments from extending the protection of anti-discrimination laws to homosexuals; it would prevent governments from creating any classifications based on homosexuality. (For further discussion of this point, see infra, 317 Or. at ---- - ----, 856 P.2d at 1027.) The certified caption is phrased too narrowly to communicate this broad impact of the measure. See Baker v. Keisling, 312 Or. 385, 391-92, 822 P.2d 1162 (1991) ().
Mabon contends that "[t]he subject of the measure, from its own language, is a restriction on government from granting minority status based upon homosexuality." Thus, he asks this court to certify a caption that reads: "AMENDS CONSTITUTION, GOVERNMENT CANNOT APPROVE, GRANT MINORITY STATUS FOR HOMOSEXUALITY." However, the concept of government "granting minority status" to homosexuals has no recognized meaning outside of this measure, the phrase is not self-defining, and the measure does not itself define the phrase except as it is defined by the words of the measure following the clause, "minority status shall not apply to homosexuality." Thus, use of the term "minority status" in the caption would do little to inform the voters of the measure's subject.
That said, we nonetheless could include the phrase in the caption, albeit partially undefined, by putting it in quotation marks. See, e.g., Baker v. Keisling, supra (). That is not a desirable course. Circumstances occasionally may compel the Attorney General (or this court) to use quotation marks around a word or a phrase from a proposed measure, but doing so runs the risk of creating a negative impression of the measure--some voters may interpret such a choice to suggest that the writer of the ballot title is at a loss to figure out what the measure means. If we can avoid the use of quotation marks and still keep faith with our statutory task, we shall do so. In this case, we believe that it is possible. The proposed measure's subject is the relationship between governments and homosexuality.
We conclude that the following caption substantially complies with the requirement that the caption reasonably identify the "subject" of the measure:
AMENDS CONSTITUTION: GOVERNMENTS CANNOT APPROVE, CREATE
CLASSIFICATIONS BASED ON, HOMOSEXUALITY 2
ORS 250.035(1)(b) requires a question of not more than 20 words...
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