Jimerson v. Rosenblum , 360 Or. 645 ( 2016 )

No. 76 December 8, 2016 645
IN THE SUPREME COURT OF THE
STATE OF OREGON
Jeff JIMERSON,
Marylin Shannon,
and Suzanne Belatti,
Petitioners,
v.
Ellen F. ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S064348)
On petition to review ballot title filed September 6, 2016;
considered and under advisement October 25, 2016.
Jill O. Gibson, Gibson Law Firm LLC, Portland, filed the
petition for review and reply memorandum for petitioners.
Shannon T. Reel, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. Also on
the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Margaret S. Olney, Bennett Hartman Morris, Portland,
filed the brief for amici curiae Stacy Cross, Lisa Gardner,
Chantal Downing, Kimberly McCullough, Michele Stranger
Hunter, and Kara Carmosino.
BALDWIN, J.
The ballot title is referred to the Attorney General for
modification.
Case Summary: Petitioners challenged aspects of the certified ballot title
that the Attorney General prepared for Initiative Petition 1 (2018). If approved,
IP 1 would prohibit public funding for abortions, except when medically neces-
sary or as may be required by federal law, such as in circumstances including
rape or incest, to the extent that the federal requirement is found to be constitu-
tional. Held: The sentence in the certified ballot title summary that states, “No
exception for pregnancy resulting from rape or incest[,]” is misleading and must
be modified, because it does not substantially comply with ORS 250.035(2)(d).
The ballot title is referred to the Attorney General for modification.
646 Jimerson v. Rosenblum
BALDWIN, J.
Petitioners seek review of the Attorney General’s
certified ballot title for Initiative Petition (IP) 1 (2018), con-
tending that the “yes” and “no” result statements and the
summary do not comply with the requirements set out in
ORS 250.035(2). We review the certified ballot title to deter-
mine whether it substantially complies with those require-
ments. See ORS 250.085(5) (setting out that standard). For
the reasons explained below, we refer the ballot title to the
Attorney General for modification of the summary.
IP 1 is a proposed amendment to the Oregon
Constitution that, if approved, would prohibit public funding
for abortions, “except when medically necessary or as may
be required by federal law.” Section 1 of IP 1 sets out that
general prohibition, and Section 2 sets out several related
definitions. Section 3 sets out two exceptions to the prohibi-
tion in Section 1; the first exception is as follows:
“Public funds may be spent to pay for an abortion when
federal law requires states to provide funding for abor-
tions, such as in circumstances including rape or incest,
in which case this [new constitutional provision] shall be
applied consistent with federal law to the extent the federal
requirement is found to be constitutional.”
IP 1, § 3(1). Section 4 provides that nothing in the proposed
amendment “shall be construed as prohibiting the expendi-
ture of public funds to pay for health insurance,” so long as
“such funds are not spent to pay or reimburse for the costs of
performing abortions.”
The Attorney General drafted a ballot title for IP 1,
ORS 250.065(3), and the Secretary of State circulated that
title for public comment, ORS 250.067(1). After receiving
comments, the Attorney General modified the draft ballot
title, ORS 250.067(2)(a), and certified the following ballot
title to the Secretary of State:
“Amends Constitution: Prohibits spending ‘public
funds’ (defined) directly/indirectly for ‘abortion’
(defined); exceptions; reduces abortion access
“Result of ‘Yes’ Vote:  ‘Yes’ vote amends constitution, pro-
hibits spending ‘public funds’ (defined) directly/indirectly
Cite as 360 Or 645 (2016) 647
for any ‘abortion’ (defined), health plans/insurance cover-
ing ‘abortion’; limited exceptions; reduces abortion access.
“Result of ‘No’ Vote:  ‘No’ vote retains current law that
places no restrictions on spending public funds for abortion
or health plans covering abortion when approved by medi-
cal professional.
“Summary:  Amends Constitution. Under current law,
abortions may be obtained, when approved by medical
professional, under state-funded health plans or under
health insurance procured by or through a public employer
or other public service. Measure amends constitution to
prohibit spending ‘public funds’ (defined) for ‘abortion’
(defined) or health benefit plans that cover ‘abortion.’
Measure defines ‘abortion,’ in part, as ‘purposeful termi-
nation of a clinically diagnosed pregnancy.’ Exception for
ectopic pregnancy and for pregnant women in danger of
death due to her physical condition. Exception for spend-
ing required by federal law, if requirement is ‘found to be
constitutional.’ No exception for pregnancy resulting from
rape or incest. Effect on spending by public entities other
than the state is unclear. Measure reduces access to abor-
tion. Other provisions.”
Petitioners are the chief petitioners for IP 1 and
also are electors who timely submitted comments about the
Attorney General’s draft ballot title for IP 1 and who now are
dissatisfied with the certified ballot title, ORS 250.085(2).
They challenge the “yes” and “no” result statements
and the summary, including aspects that the Attorney
General added after the comment period ended. See ORS
250.085(6) (permitting consideration of such arguments).
We have considered petitioners’ arguments regarding the
“yes” and “no” result statements in the certified title, and
conclude that those statements substantially comply with
statutory requirements. See ORS 250.035(2)(b), (c) (“yes”
result statement must set out simple and understandable
statement, within 25-word limit, that describes result if
proposed measure approved; “no” result statement must
describe, within 25-word limit, result if proposed measure
is rejected). As explained below, however, we agree with one
of petitioners’ arguments challenging the summary, and
we therefore refer the summary to the Attorney General
for modification.
648 Jimerson v. Rosenblum
As noted, IP 1 contains an exception based on
“federal law,” to the effect that public funds may pay for
abortions when federal law requires states to provide abor-
tion funding, “such as in circumstances including rape or
incest,” so long as the federal requirement is constitutional.
IP 1, § 3(1). The certified summary accurately (but only
generally) refers to that exception in the sentence that
states, “Exception for spending required by federal law,
if requirement is ‘found to be constitutional.’ ” Petitioners
argue, however, that the following sentence in the sum-
mary—“[n]o exception for pregnancy resulting from rape
or incest”—is speculative and misleading. Specifically,
in their view, that sentence is based on the Attorney
General’s legal interpretation that current federal law does
not require state spending for abortion in instances of rape
or incest. Petitioners contend, however, that current fed-
eral law is unclear, and so the Attorney General may not
speculate how that issue might be resolved and how it will
affect the measure. See ORS 250.035(2)(d) (summary must
set out concise and impartial statement, within 125-word
limit, summarizing measure and major effect); Conroy v.
Rosenblum, 358 Or 807, 815, 371 P3d 1180 (2016) (when
legal effect of measure unclear, court will not speculate
about it).
The Attorney General responds that the sentence at
issue is accurate. She explains that the “federal law” excep-
tion in IP 1 applies to federal law that “requires” states to
provide abortion funding (emphasis added), “such as in cir-
cumstances including rape or incest.” IP 1, § 3(1). Current
federal law, she continues, “allows” state abortion funding
in circumstances of rape or incest, but does not “require[ ]”
such funding.1 Thus, current federal law does not fall within
the exception, and the summary therefore correctly states
that IP 1 does not provide an exception for public funding
of abortions in instances of rape or incest. Amici add that,
regardless of the state of federal law, IP 1 contains no rape
or incest exceptions for purposes of state law; thus, the
1
See Pub L 113-76, § 613, 128 Stat 227 (2014) (prohibition on appropriating
public funds to pay for abortions); id. § 614 (exception to appropriations prohibi-
tion for abortions of pregnancies resulting from rape or incest, or when woman’s
life would be endangered if carried to term).
Cite as 360 Or 645 (2016) 649
summary accurately explains that the proposed new state
prohibition contains no such exception.
We agree with petitioners that the sentence, “No
exception for pregnancy resulting from rape or incest[,]” is
misleading and must be modified. That sentence suggests
that IP 1 categorically would prohibit public spending for
abortions in instances of rape or incest. But IP 1 does con-
tain an exception—dependent on federal law—that may pro-
vide for public funding of abortion in those circumstances.
Whether federal law currently “requires” such funding, IP
1, § 3(1)—or, in the future, may (or may not) require it—
is uncertain, but it is inaccurate and misleading to state
that IP 1 contains no such exception at all. See Berman v.
Kroger, 347 Or 581, 584-85, 227 P3d 692 (2010) (aspects of
ballot title, including summary, that focused on only partial
application of proposed measure were impermissibly mis-
leading); Wolf v. Myers, 343 Or 494, 501, 173 P3d 812 (2007)
(although preparing ballot title necessarily requires some
level of interpretation, when specific provision of measure
subject to multiple interpretations, Attorney General may
not choose one interpretation for purposes of ballot title).
The summary therefore does not substantially comply with
ORS 250.035(2)(d) and must be modified.
The ballot title is referred to the Attorney General
for modification.