Lewis v. Keisling

879 P.2d 857, 320 Or. 13, 1994 Ore. LEXIS 87

• Court: Oregon Supreme Court
• Decided: September 6, 1994
• Docket: SC S41550
• Status: Published

Opinions

GILLETTE, J.

This is an original proceeding for judicial review of a Ballot Measure Explanatory Statement¹ 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 P2d 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 P2d 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. But the important thing about the Mahon 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.

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.

1 For a description of Explanatory Statements, their purpose, and the manner in which they are prepared, see Teledyne Industries v. Paulus, 297 Or 665, 667-69, 687 P2d 1077 (1984). For a discussion of this court’s methodology in examining its scope of review concerning Explanatory Statements, see June v. Roberts, 310 Or 244, 247-48, 797 P2d 357 (1990).

2 Two members of the respondent committee, Julie Davis and Katherine McDowell, dissented from the Explanatory Statement filed by the other respondent members of the committee appointed to draft the Explanatory Statement. Under the pertinent statute, OES 251.215(4), the reasons for their dissent are not disclosed. Those two members have, however, perhaps given us a glimpse of their views by filing a document, entitled “Response in Support of Petition to Review Explanatory Statement,” in the present proceeding. We refer to the paper filed as a “document,” rather than as a “response,” because it does not attempt to defend the present Explanatory Statement. Instead, it argues for a somewhat different modification of the Explanatory Statement than does the petitioner. To the extent that the document is intended to be a separate petition to review the Explanatory Statement, it is filed too late and will not be considered. To the extent that it is intended to be a brief in response to the petition to review the Explanatory Statement, we consider it for such assistance as it provides.

3 Two of the three dissenters joined in the Mahon decision, includingits labeling of the use of the word, “discrimination,” as potentially “loaded” and “pejorative.”