Nakamoto v. Kulongoski

904 P.2d 165, 322 Or. 181, 1995 Ore. LEXIS 121
CourtOregon Supreme Court
DecidedOctober 12, 1995
DocketSC S42434
StatusPublished
Cited by14 cases

This text of 904 P.2d 165 (Nakamoto 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
Nakamoto v. Kulongoski, 904 P.2d 165, 322 Or. 181, 1995 Ore. LEXIS 121 (Or. 1995).

Opinions

[183]*183DURHAM, J.

This is an original proceeding in which petitioners challenge the ballot title for a proposed initiative measure.1 Petitioners are electors who submitted timely written comments about the Attorney General’s draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioners are entitled to seek a different title in this court. ORS 250.085(2) (1993). We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State.2

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

“FORBIDS GOVERNMENT PREFERENCES BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN
“QUESTION: Shall statute forbid state or local governmental preferences based on fisted factors, in education, employment, contracting, provision of public services?
“SUMMARY: Adopts statute. Forbids state, local government discrimination against or preference for citizens based on race, religion, color, sex, or national origin. Applies in education, employment, contracting, and provision of public services. Forbids government from compelling citizens to discriminate against or grant preference based on same factors, in education, employment, contracting, public services. Does not affect voluntary private programs to recruit minorities, veterans or disabled persons. Allows classifications based on sex or ability necessary to normal operation of state’s system of public employment or public accommodations.”

Petitioners argue that the Attorney General’s ballot title does not comply substantially with ORS 250.035(1) (1993).3 They challenge all three portions of the Attorney [184]*184General’s ballot title. They argue that the certified ballot title is deficient, because it makes no reference to affirmative action and fails to mention either that the measure would repeal existing state statutes requiring affirmative action programs or that those statutes allow affirmative action only to remedy the effects of past or present discrimination. To correct those alleged deficiencies, they propose the following ballot title:

“ABOLISHES AFFIRMATIVE ACTION BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN
“QUESTION: Shall statute abolish and ban all state and local government affirmative action, even programs to cure past or present discrimination?
“SUMMARY: Repeals all existing affirmative action statutes and abobshes all government affirmative action policies and programs. Adopts ban on state, local government discrimination and preferences based on race, rehgion, color, sex, or national origin, even to cure past and present discrimination. Appbes in education, employment, contracting, and providing public services. Forbids government from compelhng citizens to discriminate against or grant preferences based on same factors. Does not affect voluntary private programs. Allows classifications based on sex or ability necessary to employment and accommodations.”

We address each aspect of the ballot title separately.

THE CAPTION

Petitioners argue that the certified caption does not “reasonably identify] the subject of the measure,” ORS [185]*185250.035(l)(a) (1993), because it makes no reference to the abolition of affirmative action based on race, religion, sex, and national origin. We decline to consider petitioners’ challenge to the certified caption, because petitioners did not challenge the caption during the comment stage. Petitioners’ comments concerned only the draft question and summary, not the caption. ORS 250.085(6)4 precludes this court from considering any arguments concerning the ballot title that were not presented in writing to the Secretary of State. See Crumpton v. Keisling, 317 Or 322, 326, 855 P2d 1107 (1993) (construing that statute to “require that some notice of the contended defect be given to the Secretary of State”). Petitioners’ challenge to the certified caption comes too late. See McCoid v. Kulongoski, 321 Or 452, 454, 900 P2d 1028 (1995) (holding that a court challenge to a phrase in the certified question is untimely where the petitioner made no challenge to that phrase in writing to the Secretary of State).

THE QUESTION

Petitioners argue that the certified question fails to phrase plainly the measure’s chief purpose which, according to petitioners, is to abolish and ban all affirmative action by state and local governments. In addition, they argue that the question should state that the measure’s prohibition extends to programs to cure past and present discrimination.

The Attorney General responds that the measure would not abolish or ban all affirmative action, because not all affirmative action programs necessarily give a “preference” based on race, religion, color, sex, or national origin. In support of that argument, the Attorney General relies on the definition of “affirmative action” in ORS 243.305(2) as

“a method of eliminating the effects of past and present discrimination, intended or unintended, on the basis of race, [186]*186religion, national origin, age, sex, marital status or physical or mental disabilities.”5

The Attorney General argues that, as defined in that statute, affirmative action does not require preferences for or discrimination against citizens based on the listed factors. He argues, for example, that affirmative action may include a program to ensure that various minority groups have notice of job openings and the opportunity to apply and that such a program would not give any “preference” to those minority groups. In other words, the Attorney General argues that, because the phrase “affirmative action,” as defined in ORS 243.305(2), encompasses programs that the measure would not prohibit, it would be inaccurate for the certified question to refer to the measure’s “chief purpose” as abolishing affirmative action.

The Attorney General’s argument is well taken. If adopted by the voters, the measure would prohibit state and local governments from granting “a preference to any citizen or group of citizens on the basis of race, religion, color, sex, or national origin in matters of education, employment, contracting, or the provision of public services.” It would not abolish all forms of affirmative action which, under ORS 243.305(2) and other statutes that define the phrase, include programs aimed at ensuring equal opportunities in matters of education, employment, contracting, and the provision of public services.

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Nakamoto v. Kulongoski
904 P.2d 165 (Oregon Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
904 P.2d 165, 322 Or. 181, 1995 Ore. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nakamoto-v-kulongoski-or-1995.