Rooney v. Kulongoski
1995 Ore. LEXIS 116, 322 Or. 15, 902 P.2d 1143 (1995)
Rule of Law:
The judicial review of ballot titles for proposed initiative measures, including the court's authority to modify or draft new titles to ensure substantial compliance with statutory requirements in a contested proceeding, does not violate the separation of powers doctrine of the Oregon Constitution when exercising a proper adjudicatory function.
Facts:
- Lon T. Mabon was a chief petitioner for four separate proposed initiative measures (Elections Division #13, #17, #21, and #25), which all related to the same general subjects and used similar or identical text.
- The chief petitioners indicated their intent to circulate one or more of these proposed measures for signatures after the ballot title preparation and challenge process was complete.
- The proposed initiative measure, designated as Elections Division #13, was titled 'The Minority Status and Child Protection Act of 1996,' and aimed to amend the Oregon Constitution.
- The measure proposed prohibiting 'minority status' from being based on sexual behavior or desires, specifically targeting homosexuality.
- The measure sought to prevent government agencies from advising, instructing, or teaching that a person’s sexual behavior or desire is the legal or social equivalent to existing minority civil rights classifications.
- The measure intended to bar the expenditure of public funds in a manner that expresses approval of homosexuality and to prevent the recognition of marital status or spousal benefits based on homosexuality.
- Other provisions of the measure addressed the treatment of public employees' private lawful sexual behavior and restricting minors' access to pro-homosexuality books in public libraries unless under parental supervision and meeting local community standards.
Procedural Posture:
- Lon T. Mabon, as a chief petitioner, submitted a proposed initiative measure (Elections Division #13) to the Secretary of State.
- The Secretary of State forwarded the proposed measure to the Attorney General, who then prepared a draft ballot title.
- Mabon submitted timely written comments to the Secretary of State regarding the draft ballot title, preserving his right to challenge it.
- Petitioners Daniel A. Rooney and Julie Davis also submitted timely written comments.
- Mabon and Rooney subsequently filed petitions in the Oregon Supreme Court, challenging the Attorney General’s certified Caption, Question, and Summary for the ballot title for Elections Division #13.
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Issue:
Does the statutory scheme, which directs the Oregon Supreme Court to draft and certify a new ballot title if the Attorney General's certified title does not substantially comply with statutory standards, violate the separation of powers principle enshrined in Article III, section 1, of the Oregon Constitution?
Opinions:
Majority - Gillette, J.
No, the Oregon Supreme Court's statutory role in reviewing and, if necessary, modifying or drafting ballot titles for proposed initiative measures does not violate the separation of powers principle. The court determined that the Attorney General's argument that reviewing multiple similar measures would constitute an advisory opinion was unpersuasive, as the chief petitioners stated the possibility of circulating all measures. The court also declined to sanction the petitioners for 'ballot title shopping,' finding no statutory violation. Addressing the core separation of powers issue, the court distinguished the current statutory scheme from a prior unconstitutional one. Unlike the previous statute which mandated automatic judicial review and drafting without a concrete dispute, the current process involves concrete disputes, interested parties, and a limited, statutorily prescribed standard of review for 'substantial compliance.' This is deemed a proper adjudicatory function, akin to judicial review of other executive department actions. Applying its two-inquiry test for separation of powers, the court found that its role neither unduly burdens the Executive (Attorney General) or the Legislative (the people) branches, nor does it perform functions committed exclusively to them. The court found that its role is a 'case-deciding function' within its constitutional authority. Regarding the specific ballot title for Elections Division #13, the court found the Attorney General's Caption to be awkward and refined it to 'AMENDS CONSTITUTION: RESTRICTS LOCAL, STATE GOVERNMENT POWERS CONCERNING HOMOSEXUALITY.' It largely upheld the Attorney General's Question but made specific revisions to the Summary to include the measure’s limitations ('safeguards') and to summarize the public library provision directly, rather than interpret it. Finally, to prevent voter confusion under ORS 250.035(2), the court certified identical Captions and nearly identical Questions and Summaries for the materially similar Elections Division #13, #17, and #21 measures, while certifying a different one for the narrower Elections Division #25.
Dissenting - Unis, J.
Yes, the statutory requirement for the Oregon Supreme Court to draft and certify a ballot title different from the Attorney General's, when the latter is deemed insufficient, violates the separation of powers principle under Article III, section 1, of the Oregon Constitution. Justice Unis argued that the enactment of direct legislation through initiative measures is an exclusive function of the Legislative Branch, and the drafting of a ballot title is a crucial preliminary step in that legislative process. By performing this function, the court becomes an active participant in lawmaking, which inherently gives it the power to influence the success or failure of legislative proposals. He contended that Article III, section 1, strictly forbids one branch from exercising the functions of another 'except as in this Constitution expressly provided.' Article IV, section 1(4)(b), allowing laws 'not inconsistent therewith' regarding initiative measures, does not constitute an 'express grant' to involve the Judicial Branch in legislative drafting. The dissent emphasized that 'expressly provided' requires explicit constitutional language, citing examples where the constitution explicitly permits sharing of functions (e.g., Article XV, section 8). Justice Unis reiterated the holding of In re Ballot Title (1967), which found a similar scheme unconstitutional, arguing that the mere addition of 'trappings of administrative adjudication' does not change the inherently legislative nature of creating a new ballot title. He concluded that the court's involvement in drafting ballot titles violates the constitutional separation of powers and therefore, the case should be dismissed for lack of jurisdiction.
Analysis:
This case is a landmark decision in Oregon constitutional law, clarifying the boundaries of judicial authority within the state's direct democracy framework. It establishes that while legislative acts like initiative measure drafting are generally outside judicial purview, the court's role in reviewing and, if necessary, modifying ballot titles is a legitimate adjudicatory function, distinct from pure legislative action. This ruling provides important guidance on the 'expressly provided' exception to the separation of powers and reinforces the judiciary's role in ensuring statutory compliance and voter clarity in the initiative process. Future cases involving challenges to the language of ballot measures or assertions of judicial overreach will likely reference this two-pronged test for separation of powers violations, ensuring a careful balance between government branches.
