Mabon v. Kulongoski

• Decision Date: 27 March 1997
• Citation: 934 P.2d 403,325 Or. 121
• Parties: Lon T. MABON, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Jann Carson, Susan Leo and Neil Mann, Intervenors. SC S43563.
• Court: Oregon Supreme Court

Page 403

934 P.2d 403

325 Or. 121

Lon T. MABON, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent and Jann Carson, Susan Leo and Neil Mann, Intervenors.

SC S43563.

Supreme Court of Oregon.

Submitted on the Record Sept. 25, 1996.

Decided March 27, 1997.

Thomas Walker, Dallas, filed the petition for petitioner.

Philip Schradle, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Charles F. Hinkle, Portland, filed a memorandum for intervenors.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY and DURHAM, JJ. ^*

FADELEY, J.

This ballot title challenge is submitted to the court, without oral argument, on the petition challenging the ballot title, memorandum in opposition, and other material in the record. ¹ The petitioner participated in the ballot title drafting process and sent the Secretary of State a letter objecting to the initial draft on generally the same grounds as he argues in his petition. Thus, ORS 250.085(6) presents no bar to our consideration of those arguments.

The statutes require the Attorney General to certify a ballot title for a proposed initiative petition. ORS 250.065(3), 250.067(2). This court reviews that ballot title to determine whether that title is in "substantial compliance" with the requirements of ORS 250.035. ORS 250.085(5). Those requirements are as follows. First, the caption of the ballot title must contain a statement of not more than 10 words that "reasonably identifies the subject matter" of the measure. ORS 250.035(2)(a). Second, the "Yes" and "No" result statements of the ballot title each must contain a simple and understandable statement of not more than 15 words that describes the result if the measure is approved or rejected. ORS 250.035(2)(b) and (c). Finally, the summary of the ballot title must contain "[a] concise and impartial statement of not more than 85 words summarizing the measure and its major effect." ORS 250.035(2)(d).

In summary, the statute directs that the measure's "subject" be identified in the caption, that the "yes" or "no" result statements advise the voter what is the "result" of each of those choices and that the "effects" of a measure be placed in the summary and not elsewhere.

The proposed measure adds seven subsections to Article I, section 3, of the Oregon Constitution. The measure starts by reproducing the present section 3 and its heading, as follows:

"Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religious [sic] opinions, or interfere with the rights of conscience."

To that existing constitutional guarantee, the measure would add the following:

"1. The People recognize that the family is the foundational unit essential for social health and the good order of society and, therefore, establish as public policy that the concept of family shall be limited to one man and one woman in a marriage covenant and their children, if any, generationally, both natural and adopted, or the surviving members thereof. Government, therefore, has an inherent duty to protect the family while recognizing its own limitation in that government cannot fulfill the role or perform the duties of the family.

"A. A man and a woman who have conceived a child, not having entered into a marriage covenant, and who remain unmarried to one another, are nevertheless in their individual relationship to the child, family; and therefore, are responsible for the child, unless or until such responsibility is terminated by a court of proper jurisdiction.

"(1) With regard to the concepts of subsections 1 and 1A, circumstances involving minors and illegal acts are to be governed by statute, provided that the provisions of this section are not violated.

"B. With reference to the term one man and one woman, the people further recognize and, therefore, establish as public policy, that the concept of the male/female relationship of sexual affection is that which is natural to mankind and that male/female gender is determined at the moment of conception.

"(1) All state and local governments are, therefore, limited in that they may express approval of, promote, sanction or otherwise make acceptable only the will of the people as established in this section.

"(2) The concept of this subsection shall not be construed to preclude laws regulating immoral conduct between the two genders.

"2. These concepts are consistent and compatible with natural law, millennia of moral teaching, self-evident truth, conscience and Almighty God.

"3. Though subsection 1 is established and in effect, no licenses, permits, services or benefits shall be denied any person otherwise due under existing statute; nor shall the holding or exercise of any rights guaranteed by the Constitution of the State of Oregon or of the United States of America be deprived, nullified or diminished.

"4. Though subsection 1 is established and in effect, with regard to public employees, it shall be generally considered that a person's private lawful sexual behavior is a non-job related factor, provided such consideration does not violate any provision of this section.

"5. Though subsection 1 is established and in effect, the extent of its authority over public libraries shall be subject to present U.S. Constitutional precedent as well as local community standards established through the library review process for books, literature and materials.

"6. The Courts, Legislature and Governor are to most strictly protect the intent of the concepts, and stringently apply the limitations established in this section, resolving any doubt in favor of the concepts and in enforcing the limitations.

"7. The PEOPLE INTEND that if any part of this enactment be found unconstitutional, the remaining parts shall survive in full force and effect. This Act shall be in all parts self-executing. For the purposes of the Act, every Oregon resident and non-profit entity doing business in the State of Oregon has standing."

Petitioner objects to the use of a phrase that is repeated in all sections of the ballot title. That phrase is underlined in the following quotation of the Attorney General's certified ballot title:

"AMENDS CONSTITUTION: MAN/WOMAN MARRIAGES, ANY CHILDREN,

ONLY FAMILIES GOVERNMENTS MAY APPROVE

"RESULT OF 'YES' VOTE: 'Yes' vote limits families governments may approve to man/woman marriages, natural/adopted children, survivors.

"RESULT OF 'NO' VOTE: 'No' vote leaves Oregon Constitution without limits on types of families that governments may approve.

"SUMMARY: Amends constitution. Limits families governments may approve to married man and woman, any natural or adopted children, survivors. However, unmarried parents, including semen donors, are responsible for children unless court orders otherwise. Governments cannot recognize sex changes. Governments cannot deny other constitutional rights, or licenses, benefits, services due under existing statutes. Public employees' private lawful sexual behavior treated as non-job related unless that treatment violates measure's limit on government approval of family. Measure's authority over public libraries subject to local standards established through review process." (Emphasis added.)

Petitioner argues that the recurring phrase "governments may approve" is misleading, prejudicial, and confusing. He points out that that exact phrase is not found in the text of the measure. ²

The Attorney General responds in part that certain alternate wording proposed by petitioner is no better and fails to "convey the primary legal effect of the proposed measure." Intervenors also argue in support of the ballot title provided by the Attorney General.

A ballot title review is purely a creature of statute. Hand v. Roberts, 309 Or. 430, 433, 788 P.2d 446 (1990). 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. Our ballot title review jurisprudence has emphasized restraint.

We turn to consideration of petitioner's arguments by comparing them with the words of the measure and of the proposed ballot title. That comparison is conducted in the light of statutory requirements for the various parts of a ballot title.

Petitioner contends that this ballot measure, if adopted, will "establish * * * that the concept of family shall be limited." Under section 1 of the measure, "one man and one woman" who are married are a "family," with or without offspring. Under section 1 A, each member of a unmarried couple "who have conceived a child" also is "family" in relation to the child. It follows, as we understand petitioner's argument, that emphasis on what "government may approve" misses the point. Although the concept of "family," as it is defined in the measure, may have a derivative effect that is consonant with the phrase used repeatedly by the Attorney General, the subject of the measure, i.e., the thing from which all else flows, is the measure's definition of "family."

We conclude that petitioner's objection to the use of the "governments may approve" phrase, as it appears in the caption and the "yes" result statement, is well taken. That phrase does not capture the "subject" of the measure or describe its result if adopted. As to the subject of the measure, the caption, with that phrase in it, is nearly incomprehensible. Thus, it neither reasonably identifies the subject of the measure, nor understandably states a "yes" vote result, as the statute requires. The confusing phrase should be deleted from the caption and "yes" result statement. Further, the certified caption mistakenly limits the subject of the measure to marriage situations, whereas section 1 A also establishes that a "family" relationship may exist outside...