Deras v. Myers

*475GILLETTE, J.

In this original proceeding, petitioner challenges the explanatory statement for 1998 Ballot Measure 58, a measure concerning the circumstances under which an adult adopted person can obtain a copy of his or her original birth certificate. See ORS 251.205 (requiring selection of committee of five citizens to prepare explanatory statement for measures proposed by initiative or referendum); ORS 251.215 (setting out procedures for preparing and filing explanatory statement).

This court conducts judicial review of ballot title explanatory statements pursuant to ORS 251.235, which provides:

“Any person dissatisfied with an explanatory statement for which suggestions were offered at the Secretary of State’s hearing under ORS 251.215, may petition the Supreme Court seeking a different statement and stating the reasons the statement filed with the court is insufficient or unclear. If the petition is filed not later than the fifth day after the deadline for filing a revised statement with the Secretary of State, the court shall review the statement, hear arguments and certify an explanatory statement to the Secretary of State. The review by the Supreme Court shall be conducted expeditiously to insure the orderly and timely conduct of the election at which the measure is to be submitted to the electors. The statement certified by the court shall be the explanatory statement printed in the voters’ pamphlet.”

See also Lewis v. Keisling, 320 Or 13, 16, 879 P2d 857 (1994) (further explaining this court’s standard of review). For the reasons that follow, we conclude that two of petitioner’s arguments are well taken. Accordingly, we modify the statement in the manner set out below.

Ballot Measure 58 as submitted provides:

“Upon receipt of a written application to the state registrar, any adopted person 21 years of age and older born in the state of Oregon shall be issued a certified copy of his/her unaltered, original and unamended certificate of birth in the custody of the state registrar, with procedures, filing fees, and waiting periods identical to those imposed upon *476non-adopted citizens of the State of Oregon pursuant to OS [sic] 432.120 and 432.146. Contains no exceptions.”

The revised explanatory statement filed by the committee of five citizens under ORS 251.215(3) states:

“This measure changes existing law to allow an adopted person 21 years of age or older to obtain a copy of the person’s original birth certificate. Current Oregon law prohibits the release of an original birth certificate which may provide birth information to an adopted person without a court order. The law currently requires that upon receipt of a decree of adoption or a report of adoption from a court, the state registrar shall issue a new birth certificate unless the court, the adoptive parents or the adopted person requests otherwise. The new birth certificate may not provide accurate birth information and the original birth certificate shall not be subject to inspection except by court order.
“This measure requires that upon receipt of a written application the state registrar shall provide a copy of the original birth certificate which may provide accurate birth information to an Oregon born adopted person 21 years of age or older. This measure requires that the procedures, filing fees and waiting periods for certified copies of original birth certificates be the same for requests by adopted persons as for non-adopted persons.
“This measure applies to persons adopted in the past or in the future. There are no exceptions to this measure.”

Petitioner first argues as a blanket criticism that the explanatory statement “does not correctly explain the difference between an original birth certificate of an adoptee and the amended birth certificate.” The short answer to that contention is that, given the limited nature of the measure and the precise and limited right that it creates for a defined class of persons, the five-person committee was under no obligation to offer any explanation of the difference between those two kinds of birth certificates.

Petitioner argues more specifically that the explanatory statement is inaccurate, and therefore insufficient, in stating variously that the original birth certificate “may provide accurate birth information” and the amended birth certificate “may not provide accurate birth information.” We *477agree with that argument. Information provided by the parties in their submissions and at oral argument establishes that neither birth certificate necessarily will be more accurate than the other and that, in any event, the purpose of the measure is to make the original birth certificate available to adult adopted persons, regardless of its accuracy. Under those circumstances, the explanatory statement should not be couched in terms of the accuracy or inaccuracy of the originál or amended birth certificates.

The foregoing defect appears in two places in the explanatory statement. The last sentence of the first paragraph of the explanatory statement provides: “The new birth certificate may not provide accurate birth information and the original birth certificate shall not be subject to inspection except by court order.” As noted, the first part of that sentence is inappropriate and should be deleted. In addition, the second part of the sentence is redundant of material appearing elsewhere in the explanation, so deleting the balance of the sentence will cause no change to the substantive content of the statement. Accordingly, we delete that sentence.

The second reference to the accuracy of birth certifi-' cates appears in the first sentence of the second paragraph of the explanatory statement, which states: “This measure requires that upon receipt of a written application the state registrar shall provide a copy of the original birth certificate which may provide accurate birth information to an Oregon born adopted person 21 years of age or older.” In this instance, the explanatory statement’s insufficiency may be cured by deleting the words, “which may provide accurate birth information.” That change will be made.

Petitioner separately argues, and respondents at oral argument conceded, that the second sentence of the first paragraph of the explanatory statement is insufficient. That sentence states: “Current Oregon law prohibits the release of an original birth certificate which may provide birth information to an adopted person without a court order.” The parties, however, agree that ORS 432.420 provides for access to such records by agencies operating voluntary adoption registries. The insufficiency of the sentence can be cured by striking the words “which may provide birth information” from *478the sentence and inserting the word “such” after the word “to,” so that the sentence reads: “Current Oregon law prohibits the release of an original birth certificate to such an adopted person without a court order.” That change, too, will be made.

We have considered petitioner’s other contentions, but do not find them to be well taken.

Based on the foregoing, we certify the following explanatory statement for Ballot Measure 58:

This measure changes existing law to allow an adopted person 21 years of age or older to obtain a copy of the person’s original birth certificate. Current Oregon law prohibits the release of an original birth certificate to such an adopted person without a court order. The law currently requires that upon receipt of a decree of adoption or a report of adoption from a court, the state registrar shall issue a new birth certificate unless the court, the adoptive parents or the adopted person requests otherwise.
This measure requires that upon receipt of a written application the state registrar shall provide a copy of the original birth certificate to an Oregon born adopted person 21 years of age or older. This measure requires that the procedures, filing fees and waiting periods for certified copies of original birth certificates be the same for requests by adopted persons as for non-adopted persons.
This measure applies to persons adopted in the past or in the future. There are no exceptions to this measure.

Ballot measure explanatory statement certified as modified. Pursuant to ORAP 1.20(4) and notwithstanding ORAP 11.30(10), this opinion will become effective when the appellate judgment issues. The State Court Administrator shall issue the appellate judgment at 12:00 p.m. on August 31, 1998, unless a petition for reconsideration is both filed with and physically received by the Office of the State Court Administrator by that time. Any timely petition for reconsideration will stay issuance of the appellate judgment until the court acts on such petition.