S055927, Opinion — Frazzini v. Myers (S055927)

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On petition to review ballot title filed April 22, 2008, considered and under
advisement May 21, 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,

v.

Hardy MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S055927)
189 P3d 1277

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# En Banc

Margaret S. Olney, of Smith, Diamond & Olney,
Portland, filed the petition for review for petitioners.

Douglas F. Zier, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on
the memorandum were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.

GILLETTE, J.

Ballot title referred to the Attorney General for
modification.

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GILLETTE, J.

This ballot title review proceeding brought under
ORS 250.085(2) concerns the ballot title certified by the
Attorney General for an initiative petition that the
Secretary of State has denominated as Initiative Petition 144
(2008). Initiative Petition 144, if adopted, would repeal
Oregon Laws 2007, chapter 99 (the "Oregon Family Fairness
Act"), amend various statutes to conform to that repeal and,
in section 8 of the proposed measure, place the following
statement in the Oregon Revised Statutes:

"Same-sex domestic partnerships, relationships, and
civil unions shall not grant individuals the privileges,
immunities, rights, and benefits granted by law through
marriage to individuals whether the same-sex domestic
partnership, relationship, or civil union was entered into
before, on, or after the date of this Act."1

The Attorney General prepared a draft ballot title to
be circulated with the proposed measure. Petitioners are
electors who timely submitted written comments to the Sec-
retary of State concerning the content of the Attorney Gen-
eral's draft ballot title and who therefore are entitled to seek
review in this court of the resulting certified ballot title. See
ORS 250.085(2) (stating that requirement). We review the
Attorney General's certified ballot title to determine whether
it substantially complies with the requirements of ORS
250.035(a) to (d). See ORS 250.085(5) (stating that standard).
As we shall explain, we conclude that certain of petitioners'
challenges are well taken, and we therefore refer the certified
ballot title to the Attorney General for modification. See ORS
250.085(8) (authorizing that disposition).

The proposed measure is intended to repeal virtually
all of the substantive provisions of the Oregon Family
Fairness Act. Our discussion of the proposed measure will be
aided by a general description of the act that the proponents
of the proposed measure propose to nullify, so we begin with
that description. The Oregon Family Fairness Act (the 2007
act) was enacted by the 2007 Legislative Assembly to deal

1\. The full text of the proposed measure is attached as an Appendix to this
opinion.

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with what that body perceived as an inappropriate difference
in the treatment of committed same-sex and opposite-sex
couples under Oregon law.2 Specifically, subsections (5) and
(6) of section 2 of the act explain:

"(5) Sections 1 to 9 of this 2007 Act are intended to bet-
ter align Oregon law with the values embodied in the
Constitution and public policy of this state, and to further
the state's interest in the promotion of stable and lasting
families, by extending benefits, protections and responsibil-
ities to committed same-sex partners and their children
that are comparable to those provided to married individu-
als and their children by the laws of this state.

"(6) The establishment of a domestic partnership sys-
tem will provide legal recognition to same-sex relation-
ships, thereby ensuring more equal treatment of gays and
lesbians and their families under Oregon law."

Or Laws 2007, ch 99, § 2(5), (6).

The 2007 act then provides, in a series of substantive
sections, for the creation and recognition by the state of
same-sex "domestic partnerships," which are civil contracts
entered into between two same-sex persons who are at least
18 years of age and who meet certain other eligibility criteria
(section 3); prohibits such partnerships under certain circum-
stances (section 4); directs a state agency to create documents
recognizing such partnerships (section 5); describes how such
partnerships could be entered into (section 6); sets fees for
issuance of certificates of registered domestic partnerships
(section 7); provides for name changes by parties to the part-
nership, if desired (section 8); conforms as nearly as possible
the "privilege[s], immunit[ies], right[s] or benefit[s]" of
domestic partners to those granted by statute, rule, or the
common law to married or formerly married opposite-sex
partners (section 9); and conforms Oregon income tax law in
the same way (section 11). In eight further sections (sections
12 through 19), the act also amends certain scattered Oregon
Revised Statutes in an attempt to conform them to the poli-
cies underpinning the 2007 act.

2 The measure was signed by the Governor on May 9, 2007, and became law on
January 1, 2008.

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The proposed measure, Initiative Petition 144
(2008), begins, in Section 1, with the declaration that
"Chapter 99, Oregon Laws, 2007, Sections 1 to 9 are [sic]
repealed." Thereafter, the proposed measure manifests cer-
tain oddities. Section 2 of the proposed measure is illustra-
tive. Section 2 is formatted in standard partial repeal format,
i.e., it purports to quote the statutory section to which it is
intended to apply and identifies the wording to be removed
from that subsection by italicizing that wording and putting
it in brackets. The section states:

"SECTION 2. ORS 107.615(1) is amended to read:

107.615. (1) The governing body of any county may
impose a fee up to $10 above that prescribed in ORS
205.320(5) for [issuing] a marriage license for registering a
Declaration of Civil Union]."

Correctly formatted, the italicized words should mirror those
added by the 2007 act. However, they do not. The 2007 act
nowhere refers to something termed a "Declaration of Civil
Union." As already noted, the 2007 act instead uses another
phrase, "Declaration of Domestic Partnership," throughout.3
Interestingly, that same, unexplained misquotation appears
in sections 3 through 7 of the proposed measure.

A separate oddity in the proposed measure is that
the sections of the measure that appear to be intended to
reverse the amendments to specific statutes made by the
2007 act do not speak to all of those amendments. The 2007
act amended eight statutes, but the proposed measure would
repeal (at least in part)4 the amendments to only six of those
eight. 5 That lack of parallelism may or may not prove to be
important if the measure is submitted to and approved by the

The 2007 act amended more of ORS 107.615 than just subsection (1). It also
added to subsection (2) the phrase "conciliation and mediation" twice. That change
to subsection (2) appears to have been purely an editorial clarification, however,
and the sponsors of the proposed measure do not appear to wish to remove that
clarification.

4 Section 6 of the proposed measure purports to amend subsection (7) of ORS
432.235 in a manner consistent with the other amendments, but it omits any men-
tion of subsection (8) of that statute, which also refers to the concept of "domestic
partnership."

\# The proposed measure makes no mention of either ORS 432.005 (amended
by section 16 of the 2007 act) or ORS 432.408 (amended by section 19 of the 2007
act).

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people; certainly, it is (at this stage, at least) unexplained.
Finally, the last substantive section of the proposed measure,
section 8,6 contains the previously quoted statement assert-
ing that "domestic partnerships, relationships, and civil
unions" shall not have the effect of granting to their partici-
pants "the privileges, immunities, rights, and benefits
granted by law through marriage to individuals." With this
background in mind, we turn to the parties' arguments con-
cerning the Attorney General's certified ballot title for the
proposed measure.

The Attorney General certified the following ballot
title for Initiative Petition 144 (2008):

"RETROACTIVELY REPEALS LAWS GRANTING STATE
PRIVILEGES, IMMUNITIES, RIGHTS, BENEFITS,
RESPONSIBILITIES OF MARRIAGE TO DOMESTIC
PARTNERS

"RESULT OF 'YES' VOTE: 'Yes' vote repeals certain
domestic partnership laws; provides that domestic partner-
ships shall not grant privileges, immunities, rights, bene-
fits, responsibilities granted, imposed through marriage;
applies retroactively.

"RESULT OF 'NO' VOTE: 'No' vote retains domestic
partnership law that grants or imposes state privileges,
immunities, rights, benefits, and responsibilities of mar-
riage to persons registered in domestic partnerships.

"SUMMARY: Oregon constitution confers legal recog-
nition of marriage only when entered into by a man and
woman; state statute allows individuals of the same sex
(subject to specified age, residency, and other qualifica-
tions) to file a Declaration of Domestic Partnership for reg-
istration by county clerk conferring on each partner any
privilege, immunity, right, benefit, and responsibility
granted or imposed by state law through marriage. Domes-
tic partnership law applies only within Oregon and does not
change or confer rights under federal law. Measure repeals
certain domestic partnership statutory provisions. Provides
that domestic partnerships entered on or after effective
date of measure shall not grant the privileges, immunities,
rights, benefits, or responsibilities granted to individuals

" The proposed measure contains a final section, section 9, which is a savings
clause.

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through marriage; applies retroactively to domestic part-
nerships registered under current law. Other provisions."

Petitioners challenge the sufficiency of each of the four parts
of the certified ballot title.

ORS 250.035(2)(a) requires that the Attorney
General's certified ballot title contain "[a] caption of not more
than 15 words that reasonably identifies the subject matter
of the state measure."7 The caption, which is the first infor-
mation that most potential petition signers and voters will
see, is pivotal. It must "inform potential petition signers and
voters of the sweep of the measure." Terhune v. Myers, 342 Or
475, 479, 154 P3d 1284 (2007). A caption should not "under-
state or overstate the scope of the legal changes that the pro-
posed measure would enact." Kain/Waller v. Myers, 337 Or
36, 40, 93 P3d 62 (2004). If a proposed measure has more
than one subject, each should be identified in the caption ifit
is possible to do so within the 15-word limit. Novick / Sager v.
Myers, 329 Or 11, 16, 986 P2d 1 (1999).

As noted, the Attorney General certified a ballot title
that contained this caption:

"RETROACTIVELY REPEALS LAWS GRANTING
STATE PRIVILEGES, IMMUNITIES, RIGHTS, BENE-
FITS, RESPONSIBILITIES OF MARRIAGE TO DOMES-
TIC PARTNERS"

Petitioners assert that the foregoing caption is insufficient in
two respects. First, they argue, the caption fails to mention
the content of section 8 of the proposed measure, which, if
enacted, would constitute an affirmative legislative declara-
tion that "[s]ame-sex domestic partnerships, relationships,
and civil unions shall not grant the privileges, immunities,
rights, and benefits granted by law through marriage to indi-
viduals." (Emphasis added.) Second, petitioners assert that
the caption also is deficient in failing to point out that the
proposed measure's sweep would apply to local laws as well
as to statewide ones.

? The 15-word limitation applies when, as here, the proposed measure would
create a statute. In the event that a proposed measure is intended to amend the
Oregon Constitution, the caption may be expanded to 17 words by adding the
words, "AMENDS CONSTITUTION." ORS 250.035(2)(a).

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We discuss the foregoing arguments in reverse order.
We disagree with petitioners' second argument for two rea-
sons. First, we question petitioners' premise that the pro-
posed measure would apply to local laws. The 2007 act makes
no mention of local governments, save for reference to county
clerks. Without some intervening judicial construction of the
2007 act that validated petitioners' assumption, it would be
inappropriate for us to require the Attorney General to pro-
ceed on petitioners' premise.

However, even if petitioners' premise were consid-
ered valid, we would disagree with their argument that an
adequate caption must mention the proposed measure's
application to local laws, because we are not persuaded that
a prospective petition signer or voter would think anything
other than that the measure would apply to all laws, state
and local. Certainly, that perception is accurate if petitioners'
first argument-that the caption should mention the pro-
posed measure's affirmative prohibition on granting individ-
uals the benefits and responsibilities of a marital relation-
ship if they are same-sex domestic partners-is well taken.

And it is well taken. Petitioners are correct that the
first seven sections of the proposed measure are focused on
repeal of an affirmative policy choice made by the 2007
Legislative Assembly, but that the eighth section is a sepa-
rate, substantive provision that is focused on something dif-
ferent, viz., placing in Oregon statutory law a ban on grant-
ing to same-sex domestic partners any of the benefits or
responsibilities associated with marriage. The proposed
measure thus has two subjects that are closely related, but
are stated in such a way that any potential petition signer or
voter should be told about both of them if it is possible to do
so. We believe that it is possible. The Attorney General's
caption therefore does not comply substantially with the
requirements of ORS 250.035(2)(a), and the ballot title must
be referred to the Attorney General for modification.

Petitioners next challenge is to the Attorney
General's "yes" vote result statement. That statement
provides:

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"RESULT OF 'YES' VOTE: 'Yes' vote repeals certain
domestic partnership laws; provides that domestic partner-
ships shall not grant privileges, immunities, rights, bene-
fits, responsibilities granted, imposed through marriage;
applies retroactively."

ORS 250.035(2)(b) directs that a ballot title contain a "simple
and understandable statement of not more than 25 words
that describes the result if the state measure is approved."

Petitioners assert that the Attorney General's "yes"
vote result statement also is insufficient, because it "does not
make clear that the proposal affects state and local laws." We
rejected that argument with respect to the caption, and we do
so again here. We hold that the Attorney General's "yes" vote
result statement substantially complies with the require-
ments of ORS 250.035(2)(b).

Petitioners next challenge the Attorney General's
"no" vote result statement, which, under ORS 250.035(2)(c),
must be a "simple and understandable statement of not more
than 25 words that describes the result if the state measure
is rejected." The Attorney General's statement provides:

"RESULT OF 'NO' VOTE: 'No' vote retains domestic
partnership law that grants or imposes state privileges,
immunities, rights, benefits, and responsibilities of mar-
riage to persons registered in domestic partnerships."

Petitioners assert that the Attorney General's "no" vote
result statement is insufficient, "because it fails to alert vot-
ers to the fact that current law allows both state and local
laws that recognize domestic partnerships. It also obscures
the fact that those laws grant individuals certain rights."
(Emphasis in original.)

At least a part of that argument rests on the same
premise about the proposed measure's application to local
law as petitioners' arguments concerning the caption and
"yes" vote result statement, and we again reject it. With
respect to the emphasis that petitioners believe should be
placed on "individual" rights, we think that that idea, while it
could be stated differently, is sufficiently embedded in the
Attorney General's description in the "no" vote result state-
ment of the 2007 act as being one that "grants or imposes

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state privileges, immunities, rights, benefits, and responsi-
bilities of marriage to persons." (Emphasis added.) We there-
fore hold that the Attorney General's "no" vote result state-
ment substantially complies with the requirement of ORS
250.035(2)(c).

Finally, petitioners assert that the Attorney
General's summary does not substantially comply with the
requirement of ORS 250.035(2)(d) that it summarize the pro-
posed measure and its major effects in a "concise and impar-
tial" manner. The Attorney General's summary states:

"SUMMARY: Oregon constitution confers legal recog-
nition of marriage only when entered into by a man and
woman; state statute allows individuals of the same sex
(subject to specified age, residency, and other qualifica-
tions) to file a Declaration of Domestic Partnership for reg-
istration by county clerk conferring on each partner any
privilege, immunity, right, benefit, and responsibility
granted or imposed by state law through marriage. Domes-
tic partnership law applies only within Oregon and does not
change or confer rights under federal law. Measure repeals
certain domestic partnership statutory provisions. Provides
that domestic partnerships entered on or after effective
date of measure shall not grant the privileges, immunities,
rights, benefits, or responsibilities granted to individuals
through marriage; applies retroactively to domestic part-
nerships registered under current law. Other provisions."

Petitioners assert that the Attorney General's sum-
mary is legally deficient in three ways. Petitioners first argue
that the Attorney General's summary "does not adequately
describe the domestic partnership law currently being
repealed." The shortcoming that petitioners identify is the
Attorney General's failure to explain in the summary that
the 2007 act created the concept of domestic partnership as a
species of "civil contract." We are not persuaded. Although
the Attorney General could have chosen the course that peti-
tioners advocate, it appears to us that the information that
the Attorney General chose instead to place in the summary
also was important, and we cannot say that the choice that
the Attorney General made rendered the summary legally
insufficient.

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Petitioners next argue that "the summary should
make clear that, under current law, local entities may recog-
nize domestic partnerships, and that the initiative would
prohibit such laws." For the reasons expressed elsewhere in
this opinion, we remain unpersuaded with respect to that
concern.

Finally, petitioners argue that the summary must
describe what they deem to be a "major effect" of the proposed
measure, namely, the fact that it will "retroactively deprive
couples who have registered under current law of all rights
and responsibilities those laws confer." In our view, however,
the summary does precisely what petitioners ask when it
states that the "[m]easure * * * applies retroactively to
domestic partnerships registered under current law." This
argument is not well taken. We hold that the Attorney
General's summary substantially complies with the require-
ments of ORS 250.035(2)(d).

In summary, we hold that the caption of the
Attorney General's certified ballot title for Initiative Petition
144 (2008) does not substantially comply with the require-
ments of ORS 250.035(2)(a).

Ballot title referred to the Attorney General for
modification.

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# APPENDIX

# AN ACT BEFORE THE PEOPLE OF OREGON

HOUSE BILL 2007 ENACTED BY THE OREGON
LEGISLATIVE SESSION, AS CHAPTER 99 OREGON
LAWS 2007, IS HEREBY REPEALED, AND AMENDS ORS
107.615, ORS 192.842, ORS 205.320, ORS 409.300, ORS
432.235, AND ORS 432.405.

## SUMMARY

Repeals provisions of Chapter 99, Oregon Laws,
2007.

Provides that same-sex relationships, civil unions or
domestic partnerships do not grant to an individual the priv-
ileges, immunities, rights, and benefits granted by law
through marriage to individuals. Further provides that any
responsibility imposed by law on individual who is or was
married is not imposed on individual who is or was in civil
union.

Applies to same-sex domestic partnerships whether
entered into before, on, or after effect date of Act.

Effective on passage.

## A BILL FOR AN ACT

Relating to same-sex relationships; Repealing provisions of
Chapter 99, Oregon Laws, 2007.

Be it Enacted by the People of the State of Oregon:

SECTION 1. Chapter 99, Oregon Laws, 2007, Sections 1 to
9 are repealed.

SECTION 2. ORS 107.615(1) is amended to read:

107.615. (1) The governing body of any county may
impose a fee up to $10 above that prescribed in ORS
205.320(5) for [issuing] a marriage license for registering a
Declaration of Civil Union].

SECTION 3. ORS 192.842(4) is amended to read:

192.842. (4) A county clerk shall accept the substitute
address of the program participant as the address of the

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applicant for the purpose of issuing a marriage license under
ORS 106.041 [or registering a Declaration of Civil Union
under section 6 of this 2007 Act].

SECTION 4. ORS 205.320(5) is amended to read:
205.320. In every county there shall be charged and col-
lected in advance by the county clerk, for the benefit of the
county, the following fees, and no more, for the following pur-
poses and services:

(5) For taking an affidavit for and making and issuing a
marriage license and registering the return of the license, [or
for taking an affidavit for and registering a Declaration of
Civil Union,] $25.

SECTION 5. ORS 409.300(2) is amended to read:
409.300. (2) All moneys received by the Director of
Human Services under ORS 106.045(2) [or section 7 of this
2007 Act] and any other funds allocated for expenditure
under ORS 409.292 shall be credited to the Domestic Vio-
lence Fund.

SECTION 6. ORS 432.235(7) is amended to read:
432.235. (7) When an amendment is made to a certificate
[of] for a marriage [or to a Declaration of Civil Union] by the
local official issuing the marriage license for registering the
declaration], copies of the amendment shall be forwarded to
the state registrar.

SECTION 7. ORS 432.405 is amended to read:

432.405. (1) A record of each marriage performed [and
civil union registered] in this state shall be filed with the Cen-
ter for Health Statistics and shall be registered if it has been
completed and filed in accordance with this section and rules
adopted by the State Registrar of the Center for health
Statistics.

(2) The county clerk or county official who issues the mar-
riage license [or registers the Declaration of Civil Union] shall
prepare the record in the form prescribed or furnished by the
state registrar upon the basis of information obtained from
the parties [to be married].

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(3) Each person who performs a marriage ceremony shall
certify the fact of marriage and return the record to the offi-
cial who issued the license within 10 days after the ceremony.

(4) Every official issuing marriage licenses [or registering
Declaration of Civil Union] shall complete and forward to the
Center for Health Statistics on or before the 10th day of each
calendar month the records of marriages returned to such
official during the preceding calendar month [and the records
of Declaration of Civil Union registered during the preceding
calendar month].

(5) A marriage [or civil union] record not filed within the
time prescribed by this section may be registered in accor-
dance with rules adopted by the state registrar.

SECTION 8. Same-sex domestic partnerships, relation-
ships, and civil unions shall not grant individuals the privi-
leges, immunities, rights, and benefits granted by law
through marriage to individuals whether the same-sex
domestic partnership, relationship, or civil union was
entered into before, on, or after the date of this Act.

SECTION 9. If any provision of this act, or the application
of that provision to any person or circumstance, is declared
invalid by a court of competent jurisdiction, the remainder of
this act, or the application of that provision to any persons or
circumstances other than those as to which it is held invalid,
is not affected thereby.