Cross v. Rosenblum

136 April 21, 2016 No. 24

IN THE SUPREME COURT OF THE
STATE OF OREGON

Stacy M. CROSS,
Lisa A. Gardner,
Kimberly McCullough,
Michele Stranger Hunter,
Kara Carmosino, and
Chantal Downing,
Petitioners,
v.
Ellen F. ROSENBLUM,
Attorney General,
State of Oregon,
Respondent.
(SC S063863)

En Banc
On petitions to review ballot title filed January 29, 2016;
under advisement March 29, 2016.
Margaret S. Olney, Bennett, Hartman, Morris & Kaplan
LLP, Portland, filed the petition and reply for petitioners
Cross and Gardner.
Katherine McDowell, McDowell Rackner & Gibson PC,
Portland, filed the petition and reply for petitioner Downing.
With her on the petition and reply was Felipe Alonso III.
Gregory A. Chaimov, Davis Wright Tremaine LLP,
Portland, filed the petition and reply for petitioners
McCullough, Hunter, and Carmosino.
Karla H. Ferrall, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
General.
WALTERS, J.
The ballot title is referred to the Attorney General for
modification.
Cite as 359 Or 136 (2016) 137

Case Summary: Petitioners petitioned for review of the Attorney General’s
certified ballot title in Initiative Petition 61. The court held that the ballot title
does not satisfy the requirements of ORS 250.035 and must therefore be modi-
fied. The court held that the certified caption is inadequate because it (1) fails to
adequately convey the meaning of the phrase “used to pay” and does not indicate
that IP 61 would prohibit both direct and indirect expenditures of public funds;
and (2) places two defined terms in quotes—”public funds” and “abortion”—but
annotates only one of the terms as “(defined),” creating confusion. The caption
must be modified accordingly. The court held that the “yes” result statement
must be modified in the following ways: (1) To carry forward the changes that the
Attorney General is required to make to the caption; (2) to explain that the result
of the enactment of IP 61 would be reduced access to abortion; and (3) word limit
permitting, to explain that the term “abortion” includes certain contraceptives.
Finally, the court held that the Attorney General must modify the summary to
describe the limitation on access to abortion and the use of certain contraceptives
that would follow from the enactment of IP 61. The court rejected petitioners’
other challenges to the caption, the result statements, and the summary.
The ballot title is referred to the Attorney General for modification.
138 Cross v. Rosenblum

WALTERS, J.
Petitioners seek review of the Attorney General’s
certified ballot title for Initiative Petition 61 (2016) (IP 61),
arguing that the ballot title does not satisfy the require-
ments of ORS 250.035. We review a certified ballot title to
determine whether it substantially complies with those stat-
utory requirements. See ORS 250.085(5) (stating standard
of review). For the reasons that follow, we refer the ballot
title to the Attorney General for modification.
IP 61 has three sections. Section 1 provides: “No
public funds shall be used to pay for any abortion, except
when medically necessary or as may be required by federal
law.” Section 2 defines the terms used in section 1 and gives
those terms meanings that are, in some respects, different
from their ordinary meanings. Those definitions include the
following:
“1.  ‘PUBLIC FUNDS’ are moneys under the control of
a public official or custodian belonging to, or held for the
benefit of, the State of Oregon or any of its political subdi-
visions, public corporations, municipal corporations, agen-
cies, courts, boards, commissions, or committees.
“2.  ‘USED TO PAY’ means the act or process of expending
public funds, directly or indirectly, to any person, facility,
organization, or agency for providing or performing any
abortion, or to cover the costs, premiums, or charges asso-
ciated with a health insurance policy, contract, or plan that
provides coverage for any abortion.
“3.  ‘ABORTION’ is the use of any means to terminate the
clinically diagnosed pregnancy of a woman with knowl-
edge that the termination by those means will cause, with
reasonable likelihood, the death of the embryo or fetus.
Abortion does not include contraceptive devices or meth-
ods used to inhibit or prevent conception, to terminate an
ectopic pregnancy, or to remove an embryo or fetus that has
died of causes other than abortion.”

Section 3 provides that “[n]othing in this amendment shall
be construed as prohibiting the expenditure of private funds
for abortion services or restricting private health insurance
providers from offering coverage for abortion services.”
Cite as 359 Or 136 (2016) 139

The Attorney General certified the following ballot
title for IP 61:
“Amends Constitution:  Prohibits using ‘public
funds’ for ‘abortion’ (defined) or health insurance
plans covering ‘abortion’; certain exceptions

“Result of ‘Yes’ Vote:  ‘Yes’ vote amends constitu-
tion, prohibits using ‘public funds’ for ‘abortion’ (defined) or
health insurance plans covering ‘abortion,’ unless woman
in danger of death; other exceptions.

“Result of ‘No’ Vote:  ‘No’ vote retains current law
allowing use of public funds for abortion or health insur-
ance plans covering abortion when medical professional
determines medically necessary.

“Summary:  Amends Constitution. Current law allows
abortion to be provided, when determined by medical profes-
sional to be medically necessary, under public health plans
available to qualified and eligible persons, or under health
insurance policies obtained through a public employer or
other public service. Measure amends constitution to pro-
hibit using ‘public funds,’ directly or indirectly, to pay for
any ‘abortion’ (defined) or to facilitate obtaining health
insurance that covers ‘abortion.’ Effect on OHSU unclear.
Exceptions for payments required by federal law and for
abortion necessary to prevent death of pregnant woman;
other exceptions. Defines ‘abortion’ to exclude termination
of ectopic pregnancy, removing dead fetus/embryo, or con-
traceptives that ‘inhibit or prevent conception’; ‘conception’
not defined. Other provisions.”

Three sets of petitioners challenge the certified bal-
lot title for IP 61. Petitioners Cross and Gardner challenge
all components of the ballot title; petitioners McCullough,
Hunter, and Carmosino challenge only the caption and the
“yes” result statement; and petitioner Downing challenges
the ballot title as a whole but emphasizes the caption. We
begin with the caption, which petitioners challenge on five
grounds.1

1
  Not all petitioners raise all five challenges, but because the identity of the
particular petitioners who raise particular challenges is not material to our
determination of the merits of the challenges, we refer to all challenges as being
made by petitioners generally.
140 Cross v. Rosenblum

The Attorney General’s answering memorandum
lays out and addresses each of those challenges, and we
adopt her framework for analysis. The first challenge that
the Attorney General addresses is that the caption fails to
identify reduced access to abortion as the subject matter of
the measure. Petitioners contend that IP 61 would eliminate
public funds as a source of payment for abortions and that,
as a consequence, people dependent on public funding for
abortions (or health plans that cover abortions) would have
significantly reduced access to abortion. Thus, petitioners
argue, reduced access is the actual subject of the measure
and must be identified in its caption.
The Attorney General acknowledges that reduced
access to abortion “is a direct and inevitable result of the
funding restriction.” However, she asserts, “[v]oters will
likely understand that individuals who rely on public funds
for abortions will have restricted access to abortions if those
funds are unavailable, even if that secondary effect is not
expressly described in the caption.”
We do not agree with the Attorney General that the
fact that the subject matter of a measure will be obvious
to voters is a valid justification for failing to identify it in
the caption. ORS 250.035(2)(a) requires that the caption
“reasonably identif[y] the subject matter” of the proposed
measure. That requirement must be met even if the subject
matter would be obvious to voters without its identification
in the caption. Kain/Waller v. Myers, 337 Or 36, 44, 93 P3d
62 (2004). We do, however, agree with the Attorney General
that, in this instance, the caption need not inform voters
that the effect of its enactment will be reduced access to
abortions.
We recognize that there are instances in which the
best way to describe a measure’s subject is to describe its
major effect. See, e.g., Berman v. Kroger, 347 Or 509, 512-13,
225 P3d 32 (2009) (effect of measure shifting fiscal respon-
sibility for felony incarceration to state must be identified
in caption). When a measure includes a feature that will
significantly alter the current legal structure, and that fea-
ture “goes to the heart” of the measure, that feature may
constitute the subject matter of a measure and not “merely
Cite as 359 Or 136 (2016) 141

an effect” that may be described in the summary. See Kain/
Waller, 337 Or at 44 (fact that property tax cap would apply
regardless of a property’s value is effect that must be dis-
closed in caption). On the other hand, not all effects rise to
that level. In this instance, we conclude that the certified
caption substantially complies with ORS 250.035(2)(a). The
Attorney General correctly identifies the subject matter of
IP 61 as precluding the expenditure of public funds for abor-
tions. The Attorney General could have chosen to include in
the caption a more complete explanation of the measure as
reducing access to abortions, but the Attorney General did
not err in failing to do so. See Caruthers v. Myers (S54528),
343 Or 162, 168, 166 P3d 514 (2007) (information on mea-
sure’s effects perhaps could have been included in caption,
but failure to include not error).
Petitioners’ second challenge is that the caption
does not adequately convey the meaning of the phrase “used
to pay.” As noted, IP 61 provides that no public funds shall
be “used to pay” for certain services and defines the phrase
“used to pay” to mean “the act or process of expending pub-
lic funds, directly or indirectly, to any person * * * for provid-
ing or performing any abortion, or to cover the costs * * *
associated with a health insurance policy, contract, or plan
that provides coverage for any abortion.” (Emphasis added.)
Petitioners contend that the caption should make the breadth
of that prohibition clear, either by stating that the prohibi-
tion applies to both direct and indirect expenditures, or by
including the phrase “used to pay” in the caption and placing
it in quotation marks to indicate that it is a defined term.
The Attorney General responds that the caption already ade-
quately alerts the public that the measure prohibits more
than direct payments for abortions by referring to health
plans. We agree that the reference to health plans is neces-
sary, but the measure also implicates other indirect uses of
public funds, such as having public employees process such
funds. To accurately identify the subject matter of IP 61, the
caption must indicate that it prohibits both direct and indi-
rect expenditures of public funds to pay for abortions.
In their third challenge to the caption, petitioners
point out another problem with the Attorney General’s effort
142 Cross v. Rosenblum

to capture the defined meanings of the measure’s terms. The
certified caption places two terms in quotes—“public funds”
and “abortion.” However, the certified caption further anno-
tates the word abortion as “ ‘abortion’ (defined)”; it does not
do the same for the term “public funds.” That inconsistency,
petitioners contend, creates confusion. The Attorney General
recognizes that inconsistency, but responds that it results
from the strict word limit imposed by ORS 250.035(2)(a)
and a substantive difference in the two terms. The mea-
sure’s definition of the term “abortion,” the Attorney General
suggests, “seems more likely to be different than the com-
mon understanding of that term than its definition of public
funds.” Because the Attorney General sees the 15-word limit
as precluding her from designating both terms as defined
terms, she contends that it is more important to desig-
nate the term “abortion.” We disagree. The word limits of
ORS 250.035(2)(a) may not permit the Attorney General to
annotate both terms as “(defined),” but they do permit the
Attorney General to treat the terms equally. If the Attorney
General were to use quotation marks to indicate that the
terms are used in a unique way, then the Attorney General
could revise the caption and describe its subject within the
15-word limit. For example, the caption could say: “Amends
Constitution: Prohibits using ‘public funds’ directly/indirectly
for ‘abortion,’ insurance, health plans covering ‘abortion’;
certain exceptions.” We leave it to the Attorney General
to decide the best way to accurately capture the subject of
IP 61, but the caption as presently drafted must be modified.
The caption need not be modified, however, to
respond to petitioners’ fourth and fifth objections. Petitioners’
fourth objection is that the caption should inform the pub-
lic that IP 61 would “override” what petitioners contend is
an existing constitutional right to “equal access” to abor-
tions. Petitioners assert that the Court of Appeals’ decision
in Planned Parenthood Assn v. Dept of Human Res., 63 Or
App 41, 663 P2d 1247 (1983), aff’d on other grounds, 297 Or
562 (1984), interprets Article I, section 20, of the Oregon
Constitution as “prohibiting unequal access to abortion
based on ability to pay.” Petitioners contend that IP 61 over-
rides that right and that that major effect must be described
in the caption.
Cite as 359 Or 136 (2016) 143

The Attorney General understands petitioners’
argument as asking that we rule on the constitutionality
of IP 61 before it is adopted. But that is not what petition-
ers are seeking. Petitioners recognize that IP 61 amends
the Oregon Constitution and that, if enacted, the measure
will set constitutional terms rather than violate them.
Petitioners do not want the Attorney General to inform the
public that IP 61 will violate the Oregon Constitution; they
want the Attorney General to inform the public that IP 61
will override a particular interpretation of an existing pro-
vision of the Oregon Constitution. Although petitioners are
correct that a new constitutional provision may override
existing constitutional protections, we conclude that, given
the 15-word limit, the caption adequately captures that con-
cept by providing that IP 61 amends the constitution. An
accurate description of current constitutional protections
would require a more detailed legal explanation than the
15-word limit would allow. And, as we explain below, this
court has not interpreted Article I, section 20, to impose the
prohibition on which petitioners rely, and it is not our role to
do so in this context.
Petitioners’ fifth and final challenge to the caption
is that, as defined, the term “abortion” includes certain
contraceptives—nonsurgical birth control methods that
work after the point of conception—and that the caption
should inform the public of the breadth of that definition.
Although the Attorney General does not respond to that
challenge, we conclude that the Attorney General need not
revise the caption for that purpose. We understand petition-
ers’ point that the term “abortion” is generally associated
with a surgical procedure and that, to accurately describe
IP 61, the ballot title must describe the different meaning
that the measure ascribes to it. However, in the caption, the
Attorney General has signaled that the term “abortion” is
not used in its everyday sense by enclosing it in quotations.
Given the caption’s 15-word limit, that is sufficient.
We turn to petitioners’ challenges to the “yes” result
statement.2 ORS 250.035(2)(c) requires that the ballot title

2
 We reject without discussion petitioners’ arguments regarding the “no”
result statement.
144 Cross v. Rosenblum

contain a “simple and understandable statement of not more
than 25 words that describes the result” if the initiative is
approved or rejected. The purpose of the “yes” result state-
ment is to “notify petition signers and voters of the result
or results of enactment that would have the greatest impor-
tance to the people of Oregon.” Novick/Crew v. Myers, 337 Or
568, 574, 100 P3d 1064 (2004).
Petitioners contend that the “yes” result statement
in the certified ballot title for IP 61 carries forward the
problems identified with respect to the caption. In a num-
ber of respects, we agree. The “yes” result statement fails
to inform voters that IP 61 would prohibit both direct and
indirect expenditures and annotates one term—abortion—
as “(defined),” without also annotating “public funds” in that
same fashion. The Attorney General must revise the “yes”
result statement to make the changes that we have required
her to make in the caption.
The Attorney General also must explain that the
result of the enactment of IP 61 will be reduced access to
abortion. The Attorney General acknowledges that reduced
access to abortion is “a direct and inevitable result of the
funding restriction,” and that effect must be included in
the “yes” result statement. See Rasmussen v. Kroger, 350
Or 533, 537-39, 258 P3d 1224 (2011) (description of fiscal
effect of measure must be included in result statement).
Similarly, if she can do so within the 25-word limit, the
Attorney General also must explain that the term “abor-
tion” includes certain contraceptives. Prohibiting the use
of public funds to pay for nonsurgical procedures, includ-
ing certain forms of contraception, is a “result” that would
have great importance to the people of Oregon. Given
other requirements that we have identified, it may be that
the best that the Attorney General can do, within the
25-word limit, to describe that result is to use quotation
marks around the word “abortion.” However, if feasible, the
Attorney General should do more to indicate that the term
“abortion” includes the use of some contraceptives. Again,
however, as we explain below, the Attorney General need
not describe the decision in Planned Parenthood and how
IP 61 would change it.
Cite as 359 Or 136 (2016) 145

The remaining issue for our consideration, then,
is the ballot title summary. The goal of a summary is to
provide voters with enough information to understand what
will happen if the measure is approved and the “breadth
of its impact.” Fred Meyer, Inc. v. Roberts, 308 Or 169, 175,
777 P2d 406 (1989); see also ORS 250.035(2)(d) (summary
must consist of a “concise and impartial statement” limited
to 125 words, “summarizing the state measure and its major
effect”). Petitioners contend that the summary for IP 61 does
not meet statutory requirements because it fails to plainly
describe the measure’s undisputed impact on access to abor-
tion and the use of certain contraceptives. For the reasons
given above, we agree that both consequences are important
to accurately describe the measure.
As written, the summary does not address the
limitation on access to abortion that would directly follow
from the enactment of IP 61. The Attorney General must
revise the summary to describe that limitation. As written,
the summary does address the broad definition of the term
“abortion,” but, with regard to contraception, it explains what
the term abortion excludes, rather than what it includes.
The summary provides that the measure “[d]efines ‘abor-
tion’ to exclude termination of ectopic pregnancy, removing
dead fetus/embryo, or contraceptives that ‘inhibit or prevent
conception.’ ” In taking that approach, the Attorney General
uses the literal terms of the measure, but obscures the mean-
ing of the term “abortion” rather than conveying the prac-
tical information that ORS 250.035 requires. See Frazzini
v. Myers (S055933), 344 Or 662, 667, 188 P3d 258 (2008)
(focusing on deletion of words may reflect literal terms of
measure, but may not convey necessary practical informa-
tion). In this instance, to enable voters to understand what
will happen if IP 61 is approved, the Attorney General must
directly explain that the measure will bar some nonsurgical
procedures—some forms of contraception that work after
the point of conception.
We reach a different conclusion with respect to
petitioners’ argument that the measure must specifically
explain the effect that IP 61 will have on a woman’s con-
stitutional rights. As noted, petitioners contend, citing
146 Cross v. Rosenblum

Planned Parenthood, that Article I, section 20, of the Oregon
Constitution prohibits “unequal access to abortion based on
ability to pay” and that the summary must explain that
IP 61 overrides that prohibition. In Planned Parenthood, the
Court of Appeals determined the constitutionality of a par-
ticular administrative rule. 63 Or App at 46. Although peti-
tioners may be correct that that case stands for a broader
principle, this court has not decided whether, as petitioners
contend, Article I, section 20, imposes a general prohibition
on “unequal access to abortion based on ability to pay,” and
this is not the appropriate forum for us to do so. Petitioners
do not challenge the ballot title summary on the basis that
it fails to include a general statement about the effect that
a constitutional amendment may have on existing consti-
tutional rights and protections. Rather, they challenge the
Attorney General’s failure to include a more particular
statement describing existing constitutional rights and pro-
tections, and the effect that IP 61 will have if enacted. Given
the unsettled state of the law, that is neither appropriate nor
required here. See, e.g., Vaandering v. Rosenblum, 359 Or
1, 12-13, __ P3d __ (2016) (declining to decide relationship
between statutes in ballot measure proceeding).
The ballot title is referred to the Attorney General
for modification.