Kerr v. Bradbury

January 2005 - The third time’s the charm. For the past three election cycles, beginning in 1998, the Oregon Citizens Alliance filed its so-called “Student Protection Act” initiative petition to proscribe how public schools must teach about homosexuality (only in negative or neutral terms, positive or supportive terms would be prohibited). Each time the OCA filed this initiative petition, the ACLU of Oregon challenged the petition as violating the Oregon Constitution requirement that “[a]n initiative petition shall include the full text of the proposed law or amendment to the Constitution.” (Article IV, section 1(2)(d))

Finally, on May 5, 2004, in our third legal challenge, the Oregon Court of Appeals agreed with our position. First, the court agreed that the full text provision is a requirement, not just a suggestion. Second, the court agreed that the OCA’s measure did not meet this constitutional requirement. Therefore, the OCA could no longer gather signatures on this faulty initiative petition.

In reality, the OCA was not actively collecting signatures on this petition. However, the precedent this creates for initiative law is important for giving voters the information they need to better understand the true effects of many measures they are asked to vote on.

The full text requirement means that no longer can an initiative petition only contain the one word, one sentence or paragraph the petitioners seek to add or delete from a statute or constitutional amendment. The entire statute or constitutional amendment to be changed must be included in the initiative so that voters understand the context of the proposed changes and therefore better understand the affect of their vote.

Charlie Hinkle of Stoel Rives LLP has been the ACLU’s cooperating attorney on all three full text challenges. The State appealed the Court of Appeals decision and the Oregon Supreme Court heard oral arguments on the case on January 11, 2005. We are awaiting the Court’s decision.