Mabon v. Myers

• Decision Date: 08 November 2001
• Citation: 332 Or. 633,33 P.3d 988
• Parties: Lon T. MABON, Petitioner, v. Hardy MYERS, Attorney General, State of Oregon, Respondent, and Ann Jackson, Hannah Davidson, Jeana Frazzini, Stephanie Van Zuiden, and Jann Carson, Intervenors.
• Court: Oregon Supreme Court

33 P.3d 988

332 Or. 633

Lon T. MABON, Petitioner, v. Hardy MYERS, Attorney General, State of Oregon, Respondent, and Ann Jackson, Hannah Davidson, Jeana Frazzini, Stephanie Van Zuiden, and Jann Carson, Intervenors.

SC S48518

Supreme Court of Oregon, En Banc.

Submitted July 19, 2001.

Decided November 8, 2001.

Lon T. Mabon, pro se, filed the petition.

Holly A. Vance, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, filed the memorandum for intervenors Stephanie Van Zuiden and Jann Carson.

Eli D. Stutsman, Portland, filed the memorandum for intervenors Ann Jackson, Hannah Davidson, and Jeana Frazzini.

LEESON, J.

This ballot title review proceeding, brought under ORS 250.085(2), concerns the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 34 (2002).¹ Petitioner challenges the caption, the "yes" and "no" vote result statements, and the summary of the Attorney General's certified ballot title. For the reasons explained below, we hold that the caption does not comply substantially with statutory requirements. We refer the ballot title to the Attorney General for modification. ORS 250.085(8); Flanagan v. Myers, 332 Or. 318, 323-24, 30 P.3d 408 (2001).

The proposed measure would amend the Oregon Constitution by adding to Article I, section 1, the following text:

"(1) God Almighty gives Human Life. In the womb, He forms a Human Being. At the beginning of that process, it is God, not man, who establishes Human Personhood. Therefore, we the People of the state of Oregon, in humility and obedience to Nature's God, the Lord of Heaven and earth, shall keep safe from mortal harm all innocent Human Life, acknowledging and protecting the Human Person from the moment of fertilization until natural death, so help us God."

The Attorney General certified the following ballot title:

"AMENDS CONSTITUTION. PROHIBITS: ABORTION; PHYSICIAN AID-IN-DYING; CERTAIN PAIN-CONTROL, BIRTH-CONTROL METHODS; OTHER `MORTAL HARM'

"RESULT OF `YES' VOTE: `Yes' vote prohibits abortion, physician aid-in-dying, certain pain-control and birth-control methods, other `mortal harm'; `protects' `person' from fertilization until `natural death.'

"RESULT OF `NO' VOTE: `No' vote retains current laws allowing abortion, physician aid-in-dying, pain-control and birth-control methods; rejects `protecting' `person' from fertilization until `natural death.'

"SUMMARY: Amends constitution. Under current law, abortion permitted before fetus becomes viable outside womb; after viability, abortion allowed if women's life endangered; woman may use birth-control methods effective after fertilization, including IUD's, morning-after pill, some oral contraceptives; pain control permitted that may hasten death; competent terminally-ill patient may choose physician-hastened death under Death with Dignity Act. Measure declares that `God Almighty,' not man, establishes `Human Personhood' at fertilization. Measure requires citizens, `in humility and obedience to Nature's God,' to `protect' from `mortal harm' all `innocent Human Life,' [']acknowledging,' `protecting' `Human Person' from fertilization until `natural death.' Measure does not define terms quoted above. Measure prohibits abortion, physician aid-in-dying, birth-control methods taken after conception, pain control that may hasten death."

ORS 250.035(2)(a) provides that a ballot title for a proposed state measure shall include "[a] caption of not more than 15 words that reasonably identifies the subject matter of the state measure." The caption is the "cornerstone for the other portions of the ballot title." Greene v. Kulongoski, 322 Or. 169, 175, 903 P.2d 366 (1995). As the "headline" for the ballot title, the caption "provides the context for the reader's consideration of the other information in the ballot title." Id. A caption complies substantially with the requirements of ORS 250.035(2)(a) if it identifies the subject matter of the proposed measure in terms that will not confuse or mislead potential petition signers and voters. Id. at 174-75, 903 P.2d 366. A caption that catalogues the effect of a proposed measure, without identifying its subject matter, is inadequate. Carson v. Myers, 326 Or. 248, 254, 951 P.2d 700 (1998).

Petitioner contends that the Attorney General's caption fails to comply substantially with ORS 250.035(2)(a) because it fails to identify reasonably the subject matter of the proposed measure. Instead, petitioner contends, the Attorney General's caption is a "mini-summary" that lists conduct that the proposed measure would prohibit, thereby describing its major effects on Oregonians' existing legal rights and duties. The Attorney General defends the caption on the ground that it provides what the Attorney General believes to be the "critical information" that voters should receive about conduct that the proposed measure would prohibit if it were to become the law of Oregon.

In determining whether a caption reasonably identifies the subject matter of a proposed measure, this court examines the text of the proposed measure itself. Earls v. Myers, 330 Or. 171, 175, 999 P.2d 1134 (2000). In this case, the proposed measure consists of four sentences. The fourth sentence states that the people of the State of Oregon "shall keep safe from mortal harm all innocent Human Life, acknowledging and protecting the Human Person from the moment of fertilization until natural death." The first three sentences in the proposed measure explain the rationale for the fourth sentence. The text of the proposed measure thus makes clear that its subject matter is stated in the fourth sentence, that is, in the promise that the people of Oregon will protect some human life from fertilization until natural death. The Attorney General must identify that subject matter.² Although there is no categorical prohibition against also listing certain consequences, such as prohibited conduct, in the caption, any such list may not interfere with reasonably identifying the subject matter of the proposed measure.

In this case, the Attorney General's catalogue of conduct that the Attorney General believes the proposed measure would prohibit has interfered with the Attorney General's task of reasonably identifying the subject matter of the proposed measure. To the extent that the Attorney General's caption identifies the subject matter of the proposed measure at all, the caption states only that the proposed measure would prohibit "other `mortal harm.'" That truncated statement demonstrates the problem of choosing to describe some of the likely effects of the proposed measure, rather than identifying its subject matter. The statement in the caption that the proposed measure would prohibit "other mortal harm" implies that the subject matter of the proposed measure includes a promise to prohibit all "mortal harm" to human life, including abolishing the death penalty. The text of the proposed measure makes clear that its subject matter is a promise to protect only some human life from mortal harm. Because even that part of the Attorney General's caption does not identify reasonably the subject matter of the proposed measure, the caption does not comply substantially with the statutory requirement, and the Attorney General must modify it. We refer the ballot title to the Attorney General for that purpose.

We turn to petitioner's challenge to the "yes" and "no" vote result statements. A "yes" vote result statement must describe in simple and understandable terms of 25 words or fewer the result if a proposed measure is approved. ORS 250.035(2)(b). A "yes" vote result statement must describe accurately the result if the proposed measure is approved, Prozanski v. Myers, 326 Or. 391, 395, 952 P.2d 531 (1998), and it should be written so that an affirmative response to the statement corresponds to an affirmative vote on the proposed measure, ORS 250.035(4). A "no" vote result statement should be written so that, to the extent possible, the wording of the "yes" vote result statement and "no" vote result statement is parallel. ORS 250.035(3).

Petitioner asserts that he objects to the Attorney General's "yes" and "no" vote result statements, but he advances no argument about why those statements do not comply substantially with the statutory requirements. We therefore decline to require the Attorney General to modify the "yes" and "no" vote result statements on remand. We note, however, this court's observation that, when a caption must be modified, it also may be appropriate to make conforming changes to the result statements. See Phillips v. Myers, 325 Or. 221, 227, 936 P.2d 964 (1997) (describing court's practice of making conforming changes to result statements when modifying caption).

We turn to petitioner's contention that the Attorney General's summary fails to comply with ORS 250.035(2)(d) because it does not summarize concisely and impartially the proposed measure and its major effect. This court has explained that the purpose of a summary is to "help voters understand what will happen if the measure is approved" and "the breadth of its impact." Fred Meyer, Inc. v. Roberts, 308 Or. 169, 175, 777 P.2d 406 (1989). We have considered petitioner's arguments in light of that purpose and conclude that his arguments are not well taken. Nonetheless, in light of the changes that the Attorney General must make to the caption and may choose to make to the result statements, he may find it appropriate to reconsider the wording of the summary as well. Our holding that the summary complies substantially with the statutory requirement should not be understood as preventing the Attorney General from modifying the summary, should he find it...