Baker v. Keisling

FADELEY, J.

In these cases, which we consolidate for purposes of decision, two separate petitions challenge a certified ballot title for an initiative measure amending the Oregon Constitution. Each petition raises the issue whether the caption, question, and summary are sufficient to perform the office assigned to them by statute.

The challenged ballot title provides:

“AMENDS CONSTITUTION:

GOVERNMENT MAY NOT PROMOTE HOMOSEXUALITY, OTHER LISTED ‘BEHAVIORS’

“QUESTION: Shall Oregon’s constitution forbid government promotion of homosexuality, other listed ‘behaviors’, or recognizing such conduct through ‘sexual orientation’ label, quotas?

“SUMMARY: Amends Oregon Constitution. Governments in Oregon may not use funds or facilities to promote, encourage or facilitate homosexuality, pedophilia, sadism, or masochism. State may not recognize or protect this conduct under ‘sexual orientation’ or ‘sexual preference’ labels, or through quotas, minority status, affirmative action or similar concepts. All levels of government, including the state Department of Higher Education and public schools, must assist in setting a standard for Oregon’s youth which recognizes that these ‘behaviors’ are ‘abnormal, wrong, unnatural and perverse.’ ”

The text of the initiative measure provides:

“PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new section to be added to and made a part of Article I and to read:

“SECTION 41 (1) This state shall not recognize any categorical provision such as ‘sexual orientation,’ ‘sexual preference,’ and similar phrases that includes homosexuality, pedophilia, sadism or masochism. Quotas, minority status, affirmative action, or any similar concepts, shall not apply to these forms of conduct, nor shall government promote these behaviors.

“(2) State, regional and local governments and their properties and monies shall not be used to promote, encourage, or facilitate homosexuality, pedophilia, sadism or masochism.

“(3) State, regional and local governments and their departments, agencies and other entities, including specifically the State Department of Higher Education and the public schools, shall assist in setting a standard for Oregon’s youth that recognizes homosexuality) pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided.

‘ ‘ (4) It shall be considered that it is the intent of the people in enacting this section that if any part thereof is held unconstitutional, the remaining parts shall be held in force. ’ ’

The statute describing requirements for a proper ballot title, ORS 250.035(1), provides:

“The ballot title of any measure to be initiated or referred shall consist of:

“(a) A caption of not more than 10 words which reasonably identifies the subject of the measure;

“(b) A question of not more than 2 0 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and

“(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect.”

Our review is limited to determining whether the proposed ballot title substantially complies with each of the three parts of ORS 250.035(1) and is further limited by the requirement that any deficiency in the title claimed in a petition before us must also have been raised, at least in a general way, before the Secretary of State so that the drafter of the ballot title to be certified was placed on notice of the perceived need for correction within that general area. See ORS 250.085(2) (elector who timely submits written comments to Secretary of State on draft ballot title may petition this court seeking different title); Brown v. Roberts, 309 Or 667, 669, 791 P2d 488 (1990) (only elector may petition); Hand v. Roberts, 309 Or 430, 433, 788 P2d 446 (1990) (standing to seek review arises only from written comment that criticizes draft ballot title for lack of substantial compliance with statutory standard).

In our review of a ballot title, it is not our function to construe the meaning of the words of the measure with finality before the history of its enactment is known. That history includes the electoral debate about it and the Voters’ Pamphlet arguments for and against it. At this point, the initiative constitutional amendment is the sponsors’ measure, not an act of the people. Advance construction of meaning on our part would be unwise and perhaps unduly limiting. See, e.g., Kane v. Roberts, 310 Or 423, 799 P2d 639 (1990) (it is neither possible nor appropriate for court to predict effects of constitutional provision guaranteeing right to privacy); Oregon Citizen’s Alliance v. Roberts, 308 Or 599, 783 P2d 1001 (1989) (under earlier statute, it was inappropriate to place potential, speculative secondary effects in Explanation). For that reason, we confine ourselves as much as possible to the words actually employed in the text of a measure to answer the question whether a challenged ballot title substantially reflects the subject, purpose, and major effect of the measure.

Finally, the applicable statute strictly limits the number of words that may be used in each of the three parts of a ballot title. ORS 250.035(1). Therefore, those word limitations must also play a part in our review.

A discussion of the text of the proposed constitutional amendment, quoted ante, will facilitate application of the statutory criteria to the certified ballot title. The substantive portion of the measure is set up in three parts that speak to three differing aspects of regulating governmental activity. The measure makes clear that the three parts of its text are considered to be separate and independent by providing that “if any part * * * is held unconstitutional, the remaining parts shall be held in force.” Government is specified to include “state, regional and local governments,” that is, all levels of government within the state. The text speaks of “government” in two of the three substantive parts of the measure. The third part refers simply to “this state.” The text both (1) prohibits certain activity by government, and (2) requires certain conduct by government.

Prohibitory Section. The prohibition embodied in the measure has three operative verbs. No level of government shall use either its property or its money “to promote, encourage, or facilitate” certain sexual conduct.¹ Word limitations prevent use in the ballot title of all the verbs employed by the measure. One or another of the verbs should be used.

The choice is not difficult. The verb “facilitate” imports a broader scope of prohibition than do the other two verbs. To “promote” would “facilitate”; to “encourage” would “facilitate”; and “promote” and “encourage” may, under some circumstances, be synonymous. However, “facilitate” may include the more neutral connotation of simply doing an unrelated act which incidentally makes a result possible, even though doing the act does not cause the result. Thus, to “facilitate” may include, in a given circumstance, governmental action that, in and of itself, neither promotes nor encourages. See Eaton v. Keisling, 311 Or 415, 422, 813 P2d 37 (1991) (to “promote” means to further, contribute to, or advance).

Faced with the statutory limitation on the number of words that may be used and a proposed measure employing multiple but not synonymous verbs, the drafter of information that is designed to inform the voter completely normally will use the verb from the measure’s text that is broadest in scope or the most far reaching. As to the prohibitory aspect of this measure, that verb is “facilitate.”

Additionally, the measure assumes that there are certain ways in which a state might facilitate, or even promote and encourage, the various forms of sexual conduct that are the object of the measure’s prohibitions. To counter those assumed ways of facilitating or promoting the listed sexual conducts, the measure prohibits the state from recognizing “any categorical provision such as ‘sexual orientation,’ ‘sexual preference,’ and similar phrases.” The measure also counters use of “[q]uotas, minority status, affirmative action, or any similar concepts” to assist adherents of the sexual practices which the measure decries by declaring that the quotas and other concepts “shall not apply to” the forms of sexual conduct that are the object of the measure. The broad prohibition that state government may not “facilitate” the forms of sexual conduct includes within it a prohibition against establishing categories or statutes that might facilitate or promote those forms of conduct. However, section (1) of the measure also uses the verb “recognize” when it prohibits state government from establishing categories or statutes related to the forms of sexual conduct that are the measure’s object.

Required Conduct Section. The conduct required of government is spelled out in subsection (3) of the initiative. That section applies, as we have noted, to all levels of government within the state and to their departments. The required conduct is to “assist in setting a standard for Oregon’s youth that recognizes homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided.” As can be seen, the conduct required of government is in two parts. The government shall assist in setting a standard for Oregon’s youth that recognizes “these behaviors” as abnormal, wrong, unnatural, and perverse, and the government shall assist in setting a standard “for Oregon’s youth” such as will show that the behaviors “are to be discouraged.”

THE CAPTION

One petition for review of the ballot title challenges the caption on the ground that it refers only to the prohibition against government acts favoring the types of activity named in the measure, but does not disclose the requirement to discourage the conduct covered by the measure. Petitioners point out that ORS 250.035(l)(a) requires that the caption must reasonably identify the subject of the measure.² Our prior cases recognize that a measure may have more than one subject or main major purpose. See, e.g., Eaton v. Keisling, supra, 311 Or at 419-22 (so holding).

We agree that the use of only the verb “promote” in the caption fails to identify the subject of the measure, because the measure goes beyond proscribing promotion to proscribe any facilitation by any level of government, and because the measure requires all levels of government to assist in setting a standard for youth that discourages the types of sexual activity named in the measure. The certified caption is so narrowly phrased as to cause the voter, for whose use the caption is intended, to be inaccurately informed about the scope and coverage of the measure. We are driven by the 10-word limit to synthesize as closely as possible what is provided by the three different parts of the measure.

Accordingly, we certify the following caption:

AMENDS CONSTITUTION:

GOVERNMENT CANNOT FACILITATE, MUST DISCOURAGE HOMOSEXUALITY, OTHER “BEHAVIORS.”

THE QUESTION

One petition also challenges the adequacy of the question certified to the Secretary of State. The statute requires the question to state “the chief purpose of the measure.” This court has held that the question should reflect the significant aim or end which a measure is designed to bring about. Reed v. Roberts, 304 Or 649, 748 P2d 542 (1988). ORS 250.035(l)(b) requires that the question plainly phrase “the chief purpose of a measure so that an affirmative response corresponds to an affirmative vote on the measure.” The question certified to the Secretary of State covers only the prohibitions of sections (1) and (2) and not the additional requirements placed on government by section (3) of the measure. Where, as here, a measure both prohibits an activity and also imposes other requirements on government, two chief purposes may and should be recognized. See Eaton v. Keisling, supra, 311 Or at 421-22 (recognizing two chief purposes and rewording a ballot question to reflect both). Again, we are required to synthesize the varying aspects of the measure into a 20-word question to be answered “yes” or “no” by each voter. To be of most help to the voter, the question should build on, and be consistent with, the caption.

We certify for the voters’ use the following question:

QUESTION: Shall constitution be amended to require that all governments discourage homosexuality, other listed “behaviors,” and not facilitate or recognize them?

THE SUMMARY

One of the petitions challenges the summary on the ground that it does not define the verbs used in the measure. The measure presently before us contains no special definitions.³ To insert any definitions in the summary would be to add meaning to the measure that the sponsors may or may not have intended. We decline to do that.

Petitioners also contend that the summary does not disclose some major effects of the measure. We agree. Some changes are needed in the summary, consonant with the changes to the caption and question. See Aughenbaugh v. Roberts, 309 Or 510, 517, 789 P2d 656 (1990) (interplay of the three parts of a ballot title may require examination of caption and question where a challenge to the summary may produce a change therein). The certified summary does not disclose to the voter the requirements imposed on all levels of government to assist in setting a standard for Oregon’s youth to recognize as wrong and to discourage the sexual “behaviors” listed in the measure. Those requirements are clearly stated in the measure in section (3), albeit in general terms. The certified summary makes no reference to the requirement that the listed behaviors “are to be discouraged.” Accordingly, the summary is altered to include a reference to that major effect of the measure.

Additionally, the certified summary reads: “State may not recognize or protect this conduct.” (Emphasis added.) “Protect” is not a word found in the measure. No reference to state protection of persons involved in the listed conduct is contained in the measure. The addition of the thought that all forms of protection are removed by the measure appears to be a conclusion of the drafter of the certified summary about what one possible effect of the measure might be. Therefore, the conclusionary words “or protect” must be deleted, leaving in place the description of the effects announced by the measure’s language. This change serves the rule that we do not predict or speculate about potential applied interpretations of a measure before the history of its adoption is complete. See Kane v. Roberts, supra; Oregon Citizens Alliance v. Roberts, supra.

Another petition for review of the ballot title urges that the purpose and effect of the measure — both in its prohibitory aspect and in its aspect imposing requirements on government — is to require governmental discrimination against persons who may fall within the terms of the initiative. Those petitioners extend that argument to include the proposition that the measure would indirectly repeal the protections provided by Article I, section 20,⁴ of the Oregon Constitution, insofar as it relates to the subject of the initiative measure. Specifically, those petitioners assert that “the proposed amendment would eliminate the existing state constitutional guarantee of freedom from governmental discrimination on the basis of sexual orientation.”

The words of the measure make no reference to Article I, section 20. Petitioners do not cite any case expressly holding that there is (or is not) such an applicable guarantee. To evaluate their argument would require this court to hold that Article I, section 20, is impacted. We decline to engage in an abstract exercise to interpret a separate section of the state constitution in order to evaluate whether the measure before us for ballot title review, or legislation that might be adopted in the future to implement it, would adversely impact that separate constitutional provision. See Kane v. Roberts, supra; Oregon Citizen’s Alliance v. Roberts, supra.

CONCLUSION

The following ballot title is certified for use with the initiative measure:

CAPTION: Amends Constitution: Government cannot facilitate, must discourage homosexuality, other “behaviors.”

QUESTION: Shall constitution be amended to require that all governments discourage homosexuality, other listed “behaviors,” and not facilitate or recognize them?

SUMMARY: Amends Oregon Constitution. All governments in Oregon may not use their monies or properties to promote, encourage or facilitate homosexuality, pedophilia, sadism, or masochism. All levels of government, including public education systems, must assist in setting a standard for Oregon’s youth which recognizes “that these “behaviors” are “abnormal, wrong, unnatural and perverse” and that they are to be discouraged and avoided. State may not recognize this conduct under “sexual orientation” or “sexual preference” labels, or through “quotas, minority status, affirmative action, or similar concepts.”

Ballot title certified as modified.

1 The measure describes the sexual activities that are its target both as “behaviors” and as “forms of conduct.” The word “conduct” appears first in the measure, but “behaviors” appears twice.

2 Petitioners, specifically identifying themselves as Oregon electors, also wrote to the Secretary of State through their lawyer, criticizing the proposed draft ballot title in this matter for lack of substantial compliance with the statutes related to ballot titles that are quoted in the text of this opinion, post.

3 A discussion of a prior version of the measure, containing definitions of terms used, is in Baker v. Keisling, 312 Or 8, 815 P2d 698 (1991).

The dissent chides the court for not including the word “listed” in the 10-word caption but does not point out what verb, taken from the words of the measure, should be dropped to make room for the word ‘ ‘listed, ’ ’ not found in the measure. Nor does the dissent note that the ‘ ‘listed’ ’ reference would refer to some sexual conducts already proscribed and punished by existing criminal statutes, such as ORS 163.405, 163.427. Finally, unlike the prior insufficient caption which did not have any example in it, this one contains a specific reference point, namely “homosexual.”

4 Article I, section 20, of the Oregon Constitution provides:

“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”