S055933, Opinion — Frazzini v. Myers (S055933)

662
On petition to review ballot title filed April 23, considered and under advisement
May 2 1 , ballot title referred to Attorney General for modification June 27,
dismissed as moot July 23, 2008 (345 Or 160)
Jeana FRAZZINI,
Frank Dixon, Jann Carson
and Andrea Meyer,
Petitioners,
u.
Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055933)
188 P3d 258

Cite as 344 Or
CJS, Statutes § 131.
En Banc
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.

664 Frazzini v. Myers (S055933)
DURHAM, J.
Petitioners challenge the Attorney General's certi
fied 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 sub
stantial 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 con
cern 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 provi
sions 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as Chapter 100 Oregon Laws 2007, is hereby repealed."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 dis
crimination 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 numer
ous 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 administra
tion of certain advisory agencies and councils. The amend
ments that Initiative Petition 145 proposes would eliminate
the phrase "sexual orientation" from those statutes. The pro
posed 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:
1 Like the parties, we refer to the statute that the proposed initiative would
repeal as Senate Bill 2 .

Cite as 344 Or 662
"REMOVES SEXUAL ORIENTATION FROM
STATUTES LISTING IMPERMISSIBILE
DISCRIMINATION GROUNDS; DELETES
OTHER SEXUAL-ORIENTATION
RELATED PROVISIONS
"RESULT OF 'YES' VOTE: 'Yes' vote deletes refer
ences to sexual orientation from statutes listing imper
missible 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 edu
cational programs; restricting access to educational or rec
reational facilities in state institutions; limiting admission
to public charter schools; hiring and compensating employ
ees; recruiting, selecting, promoting state employees; expel
ling, excluding individuals from a labor organization; deny
ing or limiting jury service opportunities; discriminating
against a foster parent; discriminating against an adult fos
ter 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, dis
crimination. 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 syn
tax, is so confusing that it obscures rather than clarifies the
subject matter of the proposed measure. According to peti
tioners, the Attorney General has employed an unclear tech
nical description that does not disclose that the approval of

666 Frazzini v. Myers (S055933)
Initiative Petition 145 will remove the existing legal prohibi
tions 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 retro
actively 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 subj ect 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 con
fuse 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 pro
vides the context for the reader's consideration of the
other information in the ballot title.'
"Id. at 175 (citation omitted).
2 Oregon Laws 2007, chapter 99, section 1, took effect on January 1 , 2008. The
text of that act is compiled as a note following ORS 106.990. That 2008 act author
izes the creation ofa 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 res
ident of Oregon. Id. § 3. Initiative Petition 145 does not modify or repeal any pro
vision of the statute authorizing domestic partnerships.

Cite as 344 Or 662 667
"Because of its importance to the entire ballot title, the
caption must use terms that reasonably identify the pro
posed measure's subject matter and do not understate or
overstate the scope of the legal changes that the proposed
measure would enact."
Kain / Waller u. 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 the voters accurate and neutral information
about a proposed measure." Caruthers u. Myers, 344 Or 596,
600, 189 P3d 1 (2008); see also Wolfu. 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 sub
ject of the measure, about the elections to which the turnout
requirement applies.").
When we view Initiative Petition 145 from a techni
cal 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 cap
tion refers to that deletion of existing statutory terms.
The function of the caption is to "reasonably iden
tif[y] the subject matter" of the proposed measure in terms
that will not confuse the voters. ORS 250.035(2)(a). The prob
lem that we discern in the approach taken by the Attorney
General is that describing a measure by its technical opera
tion 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.

668 Frazzini v. Myers (S055933)
At present, Senate Bill 2 prohibits a number of
adverse actions, differential treatments, and discriminatory
acts against individuals on the basis of their sexual orienta
tion. 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 con
sequence of striking the phrase "sexual orientation" from
those prohibited reasons for differential treatment or dis
crimination 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 insuf
ficient 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 pro
posed measure's subject matter is the removal of existing
statutory protections against discrimination based on sexual
orientation and any accompanying remedies for that discrim
ination. 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 indefi
nite that they imply, incorrectly, that the proposed measure
will repeal other laws that are "sexual-orientation-related,"
including, for example, laws regarding domestic partner
ships. We think that the Attorney General must describe the

Cite as 344 Or 662 (2008) 669
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 sum
mary 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 employ
ment relations and public accommodations. That is a defi
ciency 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.