Ascher v. KULONGOSKI (ELECTIONS DIV. 49)

909 P.2d 1228, 322 Or. 550
Oregon Supreme Court·Decided February 29, 1996·No. SC S42632·Published·Cited by 13 cases

Opinions

[552]*552DURHAM, J.

This is an original proceeding in which petitioners challenge the Attorney General’s ballot title for an initiative measure that the Secretary of State’s office has designated as “Elections Division #49.” Petitioners are electors who, in a timely manner, submitted written comments about the Attorney General’s draft ballot title, pursuant to ORS 250.067(1). Accordingly, they are entitled to seek a different ballot title for the measure in this court. ORS 250.085(2). We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State.

At the outset, we note that the context for our discussion in this case includes our treatment, in Ascher v. Kulongoski (Elections Division #46), 322 Or 516, 909 P2d 1216 (1996), of the challenge to the ballot title for the initiative measure designated as Elections Division #46 by the Secretary of State, as well as our treatment of the challenge to the ballot title for the measure in Nakamoto v. Kulongoski, 322 Or 181, 904 P2d 165 (1995). Elections Division #49 is identical to the measure at issue in Nakamoto, except that it adds an explanatory “summary” and a new section 4. Apart from the text contained in section 4, the only difference between Elections Division #49 and #46 is that the former contains a relating clause and the latter does not.1

The Attorney General certified the following ballot title to the Secretary of State for this measure:

“FORBIDS GOVERNMENT PREFERENCES BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN
“RESULT OF TES’ VOTE: Tes’ vote adopts statute forbidding government preferences based on listed factors, in employment, other areas.
“RESULT OF ‘NO’ VOTE: ‘No’ vote rejects statute forbidding government preferences based on listed factors, in employment, other areas.
“SUMMARY: Adopts statute. Oregon law now forbids government discrimination based on race, religion, color, sex, national origin. Law also provides for government [553]*553affirmative action programs to provide fair and equal opportunity in employment, public contracting, to cure past and present discrimination. Measure forbids state, local government discrimination against, preference for citizens based on race, religion, color, sex, national origin. Applies in education, employment, contracting, public services. ‘Person from a disadvantaged group’ defined as economically disadvantaged regardless of race, creed, religion, color, sex, national origin, sexual preference.”

Pursuant to ORS 250.085(5), we review the Attorney General’s certified ballot title for substantial compliance with the requirements of ORS 250.035.

Petitioners initially restate the same challenges that they made with respect to the Attorney General’s certified ballot title for Elections Division #46. See Ascher (Elections Division #46), 322 Or at 520-24 (discussing petitioners’ challenges). Their challenges to the caption and result statements have no greater validity in the context of Elections Division #49 than they had with respect to Elections Division #46. For the reasons stated in Ascher (Elections Division #46), 322 Or at 520-22, we conclude that the Attorney General’s certified caption and result statements substantially comply with the requirements of ORS 250.035(2)(a) to (c).

In addition, we conclude, as we did in Ascher (Elections Division #46), 322 Or at 522, that the Attorney General’s summary does not comply substantially with ORS 250.035(2)(d), because it does not inform voters that a “major effect” of the measure, if voters approve it, would be to limit, government affirmative action programs in Oregon. Accordingly, we modify the Attorney General’s summary, in the manner described in Ascher (Elections Division #46), to correct that deficiency.

Petitioners’ remaining challenges relate to how the Attorney General’s certified summary treats section 4 of the measure. Section 4 provides:

“(1) The definition of person from a disadvantaged group as defined in the Oregon Revised Statutes shall redefined [sic] as economicaly [sic] disadvanted [sic] only without regard to race, creed, religion, color, sex, national origin or sexual preference.”

[554]*554ORS 240.035(2)(d) requires the summary of a ballot title to summarize the measure and its “major effect.” Petitioners argue that the summary should not refer to section 4, because it would have no effect if the measure were approved. In support, they observe — correctly — that the Oregon Revised Statutes do not, at present, define the phrase “person from a disadvantaged group.” They argue that, because section 4 purports to “redefine” a phrase for which there is no definition in the Oregon Revised Statutes, section 4 cannot be read plausibly to have any legal effect.

The Attorney General asserts that section 4 plausibly may be read to refer to ORS 279.053(1). ORS 279.053 provides:

“(1) No provision contained in chapter 771, Oregon Laws 1975, shall be construed to prohibit any public contracting body from engaging in bidding and contracting practices designed to accomplish affirmative action goals for disadvantaged or minority groups.
“(2) In carrying out the policy of affirmative action, by appropriate ordinance, resolution or administrative rule, a public contracting body may limit competitive bidding on any public contract for procurement of goods and services or on any other public contract estimated to cost $50,000 or less to contracting entities owned or controlled by persons described in subsection (3) of this section.
“(3) As used in this section ‘affirmative action’ is a program designed to insure equal opportunity in employment and business for persons otherwise disadvantaged by reason of race, color, religion, sex, national origin, age or physical or mental disability.” (Emphasis added.)

Relying on Aughenbaugh v. Roberts, 309 Or 510, 516, 789 P2d 656 (1990), the Attorney General argues that it at least would be premature for this court to decide that section 4 does not apply to ORS 279.053(1), and that, because it might so apply, mention of that possible “effect” in the summary is appropriate.

Free access — add to your briefcase to read the full text and ask questions with AI

Ascher v. KULONGOSKI (ELECTIONS DIV. 49), 909 P.2d 1228, 322 Or. 550 (Or. 1996).

909 P.2d 1228 (Ascher v. KULONGOSKI (ELECTIONS DIV. 49)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Richardson v. Belleque
Oregon Supreme Court, 2017
Oregon Cable Telecommunications Ass'n v. Department of Revenue
240 P.3d 1122 (Court of Appeals of Oregon, 2010)
Ascher v. KULONGOSKI (ELECTIONS DIV. 49)
909 P.2d 1228 (Oregon Supreme Court, 1996)
Ascher v. Kulongoski
910 P.2d 372 (Oregon Supreme Court, 1996)
Ascher v. KULONGOSKI (ELECTIONS DIV. 46)
909 P.2d 1216 (Oregon Supreme Court, 1996)
Ascher v. KULONGOSKI (ELECTIONS DIV. 47)
909 P.2d 1223 (Oregon Supreme Court, 1996)