Mannix v. Kulongoski

918 P.2d 839, 323 Or. 485, 1996 Ore. LEXIS 62
CourtOregon Supreme Court
DecidedJuly 5, 1996
DocketSC S42595, S42596 and S42572
StatusPublished
Cited by5 cases

This text of 918 P.2d 839 (Mannix v. Kulongoski) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mannix v. Kulongoski, 918 P.2d 839, 323 Or. 485, 1996 Ore. LEXIS 62 (Or. 1996).

Opinions

[488]*488GILLETTE, J.

These are three original proceedings, consolidated for argument and opinion, in which three separate petitioners or groups of petitioners challenge the ballot title for SJR 41, which was referred to the voters by the legislature. Each petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General’s draft ballot title, pursuant to ORS 250.067(1). Accordingly, each is entitled to seek a different title in this court. ORS 250.085(2). We have considered each of petitioners’ arguments concerning the Attorney General’s ballot title. We conclude that none demonstrates a failure on the part of the Attorney General to comply substantially with the requirements of ORS 250.035(2). See ORS 250.085(5) (establishing this court’s standard of review). Accordingly, we certify the Attorney General’s ballot title.

The referred measure provides:

“Be it Resolved by the Legislative Assembly of the State of Oregon:
“PARAGRAPH 1. Section 8, Article I of the Constitution of the State of Oregon, is amended to read:
Sec. 8. (1) No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. [-]
(2) Obscenity, including child pornography, shall receive no greater protection under this Constitution than afforded by the Constitution of the United States.
“PARAGRAPH 2. The Amendment proposed by this resolution shall be submitted to the people for their approval or rejection at the next regular general election held throughout this state.”

(Boldface in original.)

In referring SJR 41 to the voters, the legislature created its own ballot title, but the Governor vetoed the act that contained that ballot title. Therefore, the Attorney General [489]*489prepared a proposed ballot title pursuant to ORS 250.0751 and, after the comment period provided by ORS 250.067(1), certified the following ballot title for SJR 41 to the Secretary of State:

“AMENDS CONSTITUTION: OBSCENITY MAY RECEIVE NO GREATER PROTECTION THAN UNDER FEDERAL CONSTITUTION
“RESULT OF ‘YES’ VOTE: “Yes’ vote limits free speech protection for ‘obscenity, including child pornography to federal constitution’s level.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains Oregon Constitution’s current right to speak freely on any subject, including obscenity.
“SUMMARY: Amends Oregon Constitution. Oregon Constitution now protects the ‘right to speak, write, or print freely on any subject.’ The Oregon Supreme Court has held that provision protects obscenity. United States Constitution’s free speech provision does not currently protect obscenity. Measure would state that ‘obscenity, including child pornography,’ may receive no greater protection than under United States Constitution. Measure thus would remove Oregon Constitution’s current protection for obscenity. Measure would limit state judges’ authority to interpret free speech provision as applied to obscenity, including child pornography.”

We shall discuss the parties’ various contentions on a petitioner-by-petitioner basis.

[490]*490PETITIONERS MANNIX AND MARSHALL

Petitioner Mannix was one of the chief sponsors of SJR 41 in the legislature. Petitioner Marshall is a supporter of the measure. They challenge all parts of the Attorney General’s certified ballot title.

The ballot title is to contain a Caption of not more than 10 words which “reasonably identifies the subject matter of the state measure.” ORS 250.035(2)(a).2 Petitioners challenged the Attorney General’s Caption for omitting the words, “including child pornography,” in the Caption. Those words appear in the measure itself, petitioners argue, thus “indicat[ing] the importance of the language.” “Additionally,” they argue, “because it cannot be assumed that all voters will understand that obscenity includes child pornography, the omission of [that phrase] is misleading.”

The foregoing argument ignores the function of the Caption, which is to identify the subject of the measure. By its own wording, the subject of the measure is “obscenity.” True, the measure says that obscenity “includes child pornography,” but that very statement demonstrates that child pornography is considered by the draftees to be a subset of the larger subject, obscenity. It is not a necessary function of a Caption to list subsets of a measure’s subject.

Moreover, we note that the wording of the Attorney General’s Caption tracks, almost verbatim, the wording of the subsection that would be added to the Oregon Constitution by SJR 41. It is an accurate statement of the subject of the proposed measure. Petitioners’ challenge to the Attorney General’s Caption is not well taken.

Petitioners Mannix and Marshall next challenge the Attorney General’s Statement of Result of “Yes” Vote as “misleading.”3 The Statement tells voters that a “Yes” vote “limits [491]*491free speech protection for ‘obscenity, including child pornography’ to federal constitution’s level.” Petitioners object to the Statement’s use of the term, “free speech.” That term, petitioners argue, is inappropriate, because Article I, section 8, of the Oregon Constitution, protects more than “speech” — it protects expression.

We agree with petitioners’ description of the scope of Article I, section 8, but disagree with the conclusions that they draw. This court has, on at least two occasions, approved ballot titles that used the same term in describing the scope of Article I, section 8. See Mannix v. Keisling, 317 Or 598, 858 P2d 1306 (1993) (certifying ballot titles for two measures under previous law); Arenz v. Keisling, 317 Or 349, 855 P2d 1109 (1993) (same re single measure). The Attorney General asserts — and we agree — that the term “is a simple and familiar term that voters will understand.” It represents a useful shorthand for Article I, section 8, that probably is less confusing than would be the term “freedom of expression.” At least, petitioners have failed to show that the Attorney General did not comply substantially with applicable law in using the term that he chose.

In the alternative, petitioners argue that the term is not impartial. Petitioners do not explain how that is so, and we do not find the proposition self-evident.

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Related

Carlson v. Myers
959 P.2d 31 (Oregon Supreme Court, 1998)
Carson v. Myers
951 P.2d 700 (Oregon Supreme Court, 1998)
Sizemore v. Myers
950 P.2d 314 (Oregon Supreme Court, 1997)
Mannix v. Kulongoski
918 P.2d 839 (Oregon Supreme Court, 1996)

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Bluebook (online)
918 P.2d 839, 323 Or. 485, 1996 Ore. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mannix-v-kulongoski-or-1996.