FILED: June 27, 2008
IN THE SUPREME COURT OF THE STATE OF OREGON
JEANA FRAZZINI,
FRANK DIXON, JANN CARSON
and ANDREA MEYER,
Petitioners,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055933)
En Banc
On petition to review ballot title filed April 23, 2008; considered and under advisement on May 21, 1008.
Margaret S. Olney, of Diamond, Smith & Olney, Portland, filed the petition for petitioners.
Rolf C. Moan, Assistant Attorney General, filed the answering memorandum for respondent.  With him on the memorandum were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
DURHAM, J.
Ballot title referred to Attorney General for modification.
DURHAM, J.
Petitioners
challenge the Attorney General's certified ballot title for Initiative Petition
145 (2008) under ORS 250.085(2) (providing for judicial review of certified
ballot title).  This court reviews the certified ballot title for substantial
compliance with statutory requirements.  ORS 250.085(5).  For the reasons
discussed below, we refer the ballot title to the Attorney General for
modification.
Initiative Petition
145, if approved by the voters, would repeal certain statutes, or parts of
statutes, that concern sexual orientation, although the exact scope of that
repeal is in dispute.  Because the proposed initiative measure is lengthy, we
provide only a summary of its operative provisions here.
Initiative Petition
145 begins with the following statement:

''Senate Bill 2 enacted by the 2007
Legislative Session, as Chapter 100 Oregon Laws 2007, is hereby repealed.''

Senate Bill 2, to which the noted provision
refers, bans discrimination against individuals in a number of contexts on the
basis of sexual orientation. (1) 
Initiative Petition 145 then sets out a lengthy ''Bill For An Act''
that would amend numerous statutes that incorporate the phrase ''sexual
orientation'' either as a prohibited ground for discrimination in a number
of contexts or as part of various legislative authorizations for government
action, such as rulemaking and the administration of certain advisory agencies
and councils.  The amendments that Initiative Petition 145 proposes would
eliminate the phrase ''sexual orientation'' from those statutes.  The
proposed measure also specifies that its statutory amendments would apply to
''all conduct, whether occurring before, on or after [the] effective date''
of the proposed measure.
The Attorney General
certified the following ballot title for the proposed measure:

''REMOVES SEXUAL ORIENTATION FROM STATUTES LISTING IMPERMISSIBILE
DISCRIMINATION GROUNDS; DELETES OTHER SEXUAL-ORIENTATION-RELATED PROVISIONS
''RESULT OF 'YES' VOTE:  'Yes' vote deletes
references to sexual orientation from statutes listing impermissible grounds
for discriminating against individuals; deletes other provisions related to
sexual orientation or discrimination.
''RESULT OF 'NO' VOTE:  'No' vote retains
references to sexual orientation in statutes listing impermissible grounds for
discriminating against individuals; retains other provisions related to sexual
orientation and discrimination.
''SUMMARY:  Current statutes prohibit
relying on a person's sexual orientation in, among others, the following
contexts:  restricting use of real property; refusing to sell, lease, or rent
real property; providing access to public educational programs; restricting
access to educational or recreational facilities in state institutions;
limiting admission to public charter schools; hiring and compensating
employees; recruiting, selecting, promoting state employees; expelling,
excluding individuals from a labor organization; denying or limiting jury service
opportunities; discriminating against a foster parent; discriminating against
an adult foster home resident.  Proposed measure deletes references to sexual
orientation from statutes listing sexual orientation as an impermissible ground
for discrimination.  Deletes other statutory provisions related to sexual
orientation, discrimination.  Applies to all conduct occurring before, on, or
after date of passage.  Other provisions.''

Petitioners take
issue with the caption, the ''yes'' and ''no'' result
statements, and the summary in the Attorney General's ballot title.  We address
each challenge below.
Regarding the
caption, petitioners assert that the Attorney General's wording, and
particularly the chosen syntax, is so confusing that it obscures rather than
clarifies the subject matter of the proposed measure.  According to
petitioners, the Attorney General has employed an unclear technical description
that does not disclose that the approval of Initiative Petition 145 will remove
the existing legal prohibitions on sexual orientation discrimination in
employment, education, housing, and other areas and, consequently, will permit
those forms of discrimination to take place.  They assert that the Attorney
General's phrase, ''deletes other sexual-orientation-related
provisions,'' introduces confusion by suggesting, inaccurately, that the
proposed measure would eliminate other state laws that bear some relationship
to sexual orientation, such as Oregon statutes regarding domestic partnership. (2)  Finally, petitioners
contend that the caption must disclose that the proposed measure retroactively
would legalize discriminatory conduct that occurs while the prohibitions in Senate
Bill 2 are in effect.
The Attorney General
responds that the certified caption is not obscure or confusing and that it
accurately identifies the proposed measure's subject matter:  the removal of
references to ''sexual orientation'' from multiple statutes that now
incorporate that phrase.  He also contends that the retroactivity or the
effective date of the proposed measure is not part of its subject matter, and,
in any event, is less significant here because it potentially would apply only
to conduct occurring after January 1, 2008, the effective date of the statute that
it would repeal, Senate Bill 2.
This court has
stated:

''The caption must state or describe the proposed
measure's subject matter 'accurately, and in terms that will not confuse or
mislead potential petition signers and voters.'  Greene v. Kulongoski, 322
Or 169, 174-75, 903 P2d 366 (1995).  Greene also states:
'The caption is the cornerstone for the other portions of
the ballot title.  As the headline for the ballot title, it provides the
context for the reader's consideration of the other information in the ballot
title.'
''Id. at 175 (citation omitted).
''Because of its importance to the entire
ballot title, the caption must use terms that reasonably identify the proposed
measure's subject matter and do not understate or overstate the scope of the
legal changes that the proposed measure would enact.''

Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004).  Recently, this court also
explained that, in phrasing a ballot title to comply with statutory
requirements, ''the Attorney General may have to go beyond the words of a
measure in order to give voters accurate and neutral information about a
proposed measure.''  Caruthers/Wolf v. Myers, ___ Or ___, ____, ____
P3d ___, (June 19, 2008) (slip op at 4); see also
Wolf v. Myers,
343 Or 494, 503, 173 P3d 812 (2007) (using the words of the measure itself in
the caption to describe subject matter ''does not always result in an
accurate description of the 'subject' of the measure[;]'' Attorney General
has ''an obligation under ORS 250.035(2)(a) to inform voters, as part of
describing the subject of the measure, about the elections to which the turnout
requirement applies.'').
When we view Initiative
Petition 145 from a technical standpoint, we observe that the most significant
impact of the proposed measure on existing law is the removal of the words
''sexual orientation'' from a long list of statutes that prohibit
adverse action or discrimination against certain individuals in a number of
settings, such as education and employment.  The first clause of the Attorney
General's caption refers to that deletion of existing statutory terms.
The function of the
caption is to ''reasonably identif[y] the subject matter'' of the
proposed measure in terms that will not confuse the voters.  ORS
250.035(2)(a).  The problem that we discern in the approach taken by the
Attorney General is that describing a measure by its technical operation on
existing statutes, through such terms as ''amends,'' ''repeals,''
or practical synonyms of such legal terms, may obscure, as it has in this case,
the true sweep of the measure.  Describing the deletion of words from certain
statutes may reflect the literal terms of the proposed measure, but, as this
case illustrates, that approach may not identify, in practical terms that
voters likely will understand, the subject matter of the measure.
At present, Senate
Bill 2 prohibits a number of adverse actions, differential treatments, and
discriminatory acts against individuals on the basis of their sexual
orientation.  Those prohibitions now appear most often as parts of broader
statutes that forbid discrimination for other reasons, such as an individual's
race, sex, or religion.  The main consequence of striking the phrase
''sexual orientation'' from those prohibited reasons for differential
treatment or discrimination is to remove the existing statutory protections
against discrimination on the basis of sexual orientation in each of the
contexts in which Oregon law now prohibits it, together with the statutory
remedies that now apply to that kind of discrimination.
The Attorney General
stresses that Initiative Petition 145 does not expressly authorize
discrimination on the basis of sexual orientation.  We agree.  It is for that
reason that we do not agree fully with petitioners' arguments, including their
contention that the ballot title is legally insufficient unless it states that
the proposed measure ''permits'' a form of discrimination that current
law prohibits.  However, the identification of the proposed measure's subject
matter in terms that will not confuse the voters must account for the practical
consequence that is readily predictable from the measure's adoption.  Taking
that practical view here, the proposed measure's subject matter is the removal
of existing statutory protections against discrimination based on sexual
orientation and any accompanying remedies for that discrimination.  It is that
information that the Attorney General's ballot title caption fails to convey in
an understandable way.
The Attorney
General's caption for Initiative Petition 145 fails to identify the subject
matter described above in a manner sufficient to satisfy ORS 250.035(2)(a).  See
ORS 250.085(5) (requiring substantial compliance with statutory requirements). 
Additionally, the certified caption uses six words (''Delete Other
Sexual-Orientation-Related Provisions'') that convey little or no practical
information to voters about the subject matter.  Those words are so indefinite
that they imply, incorrectly, that the proposed measure will repeal other laws
that are ''sexual-orientation-related,'' including, for example, laws
regarding domestic partnerships.  We think that the Attorney General must
describe the proposed measure's subject matter without that confusion and
possible overbreadth.  As a result, the Attorney General must modify the
caption on referral.
Petitioners assert
similar challenges to the ''yes'' and ''no'' vote result
statements and the summary.  Those parts of the certified ballot title exhibit
the same deficiencies that we have discussed above.  We note in particular that
the summary devotes approximately two-thirds of the available words to a
lengthy but incomplete listing of existing laws, rather than the proposed
measure and its major effects.  That description fails to alert the reader to
important areas of law to which current legal protections apply, including
employment relations and public accommodations.  That is a deficiency that the
Attorney General must address on referral.  For the reasons discussed above, we
conclude that the result statements and summary do not comply substantially
with statutory requirements.
Ballot title
referred to Attorney General for modification.


1. Like the parties, we refer to the statute that the proposed
initiative would repeal as Senate Bill 2.
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2. Oregon Laws 2007, chapter 99, section 1, took effect on January 1,
2008.  The text of that act is compiled as notes following ORS 106.990. That
2008 act authorizes the creation of a domestic partnership between two
individuals of the same sex who are at least 18 years of age, legally capable,
and at least one of whom is a resident of Oregon.  Id., § 3.  Initiative
Petition 145 does not modify or repeal any provision of the statute authorizing
domestic partnerships.
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