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ACLU of Oregon—News
Volume XXX, Number 2
Summer / Fall 1998


Court Says 'No' to Initiative Abuse

1998 Ballot Measures

Upcoming Uncensored Celebration Info

In the Courts
*"Vino" License Plate
*HIV Discrimination
*Separation of Church & State: Boy Scout Case

MacNaughton Award Event

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Court Says "No" to Initiative Abuse

Just when we were about to give up any hope that the Oregon Supreme Court would help restore some sanity to the Oregon initiative process, the Court came through with a landmark ruling in our challenge to Measure 40—the so-called "victim’s rights amendment."

The Court’s unanimous decision invalidated Measure 40 because it contained multiple constitutional changes and therefore violated the Oregon constitution’s requirement for separate votes on each proposed amendment.

Among other things, the sweeping provisions of Measure 40 would have: allowed the state to require a defendant to have a jury trial even when he or she didn’t want one; allowed murder convictions by non-unanimous juries; sharply curtailed the right to pre-trial release for many defendants; expanded the use of illegally obtained evidence against defendants; and, most alarmingly, would have effectively repealed the Oregon protection against unreasonable searches and seizures by the government.

While we were confident that many of the provisions of Measure 40 eventually would have been found to violate the federal constitution, we felt it was critical to challenge the measure as a whole because it represented such a clear abuse of the initiative process.

Shortly after the measure was approved by voters in November, 1996, we filed suit on behalf of seven voters seeking to prevent the measure from taking effect. Among our plaintiffs were: Judith Armatta, long-time advocate for the rights of victims of domestic and sexual abuse; Benton County Sheriff Stan Robson; former U.S. Attorney Sid Lezak; Eugene realtor Jean Tate; and Kathleen Hagberg of Portland, owner of the Bijou Cafe restaurant.

We purposely chose to file a civil suit on behalf of a group of law-abiding voters—rather than waiting until criminal cases were appealed from the trial courts—in order to highlight the initiative reform issues at stake in our challenge.

In addition to arguing that Measure 40 violated the "separate vote" requirement of the Oregon Constitution, we also argued that it was so sweeping, it amounted to a "revision" of the constitution which is beyond the power of the initiative process.

We had raised some of the same arguments in many previous legal challenges of anti-civil liberties initiatives in the past 15 years. Most of those cases never reached the Oregon Supreme Court because they sought to prevent measures from reaching the ballot and the measures either didn’t qualify or were defeated at the polls.

Our goal has been to ensure that the procedural safeguards governing initiatives are enforced, especially with regard to proposed constitutional amendments. In our view, it has been much too easy to amend the Oregon Constitution—especially the Oregon Bill of Rights.

Of the states which have the initiative process, only 18 permit constitutional amendments by initiative petition. Of those, Oregon’s constitution is among the easiest to amend.

In order to propose a statutory change in Oregon, initiative proponents need to gather signatures equal to 6% of those who voted in the last gubernatorial election. To amend the constitution, they only need an additional 2%—a total of 8%. Since constitutional amendments are beyond the reach of the Legislature and can only be changed by a future vote of the people, the lure of constitutional amendments has been too strong to resist for many populist groups and special interests distrustful of the legislative process.

Another factor which has fostered the increasing number of proposed anti-civil liberties amendments has been the practice of Oregon Supreme Court to decide cases on the basis of the Oregon Bill of Rights prior to considering federal constitutional claims.

This method of approaching cases has been critical to protecting civil liberties in an era when the U.S. Supreme Court has been steadily eroding protection under the federal constitution. However, it has also spawned many reactionary initiatives designed to roll back those civil liberties victories.

One prosecutor who helped draft Measure 40 has denounced the Oregon Supreme Court’s decision as "judicial activism" since Measure 40 is the first initiative ever to be invalidated on the basis of the "separate vote" requirement. Instead of fostering cynicism about the judiciary, the proponents of Measure 40 would do well to carefully study the Supreme Court’s unanimous and persuasive opinion authored by Chief Justice Wallace Carson.

The "separate vote" requirement for constitutional amendments has been in the Oregon Constitution since 1859—and has applied to initiatives since 1906. The reason that Measure 40 is the first to fall because of this requirement is due more to the fact that no other initiative challenge has raised the issue previously, and because the changes Measure 40 attempted to impose on our constitution were unprecedented in scope.

The Justices did what they had to do: they read the plain language of the Oregon Constitution and—after carefully analyzing that language—applied it to the facts before them. Given the reluctance of any elected official to be in conflict with a majority of voters, it should be obvious that to reach consensus on this issue, the Oregon Supreme Court must have felt the Constitution provided them no alternative.

Ironically, while the Court’s ruling threw out Measure 40 in its entirety, many of its provisions remain in effect because the Legislature included them in SB 936 last year. Among those still in place are provisions which guarantee crime victims greater access to court proceedings and a provision limiting the exclusion of evidence.

Measure 40 proponents are already calling on the Legislature to refer new ballot measures to accomplish the constitutional changes they sought in Measure 40. Obviously, we’ll be doing what we can to convince legislators not to propose any amendments that would weaken or repeal the Oregon Bill of Rights. But, at the very least, if those changes do make it back to the ballot, Oregon voters will have a chance to vote on each change separately. That should make a big difference.

A final footnote: we owe a special thanks to the ACLU cooperating attorneys who handled the Measure 40 challenge: Tom Christ, Katherine McDowell and Carl Neil. Tom Christ put in the most hours but all three provided important insights and assistance on the case. In addition to volunteering their time, the court-awarded attorney fees in the case have been donated to the ACLU Foundation of Oregon to help fund our future legal and educational work.

Excerpts from the Oregon Supreme Court’s decision in the ACLU’s Measure 40 challenge.

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While the failure of the OCA measures to qualify for the ballot means we will be spared the most divisive types of campaigns this fall, there is no shortage of civil liberties issues on the ballot.

To date, the Oregon ACLU Board of Directors has taken positions on four of the November ballot measures. In September, the Board will examine five other proposals that implicate civil liberties and may take positions on one or more of them as well.

Here is a brief discussion of the measures that have occupied most of our time so far:

This initiative will continue the debate in Oregon begun by Measure 16 over the rights of patients. Despite the empirical and anecdotal evidence that marijuana can provide relief to patients with intractable chronic or terminal illnesses, marijuana cannot be prescribed by physicians because it is regulated as a Schedule I controlled substance by the federal government.

Amazingly, more dangerous drugs - such as morphine, cocaine and amphetamines- are available for medical use because they are listed as Schedule II controlled substances. This doesn’t make sense.

Since Oregon voters cannot change federal law, Measure 67 will create a permit system that allows patients diagnosed with specific terminal or chronic debilitating diseases to have access to marijuana for medical use without facing criminal prosecution under state law.

The measure would establish a permit system to be administered by the Oregon Health Division that would permit qualifying patients and their designated primary caregiver to possess and cultivate small amounts of marijuana. The measure would not permit the sale of marijuana under any circumstances, nor would it allow the use of marijuana in public places or in public view.

It is clear that marijuana has therapeutic value for some patients whose symptoms do not respond to manufactured pharmaceuticals. In these instances, we believe the government’s prohibition on marijuana should yield to the individual’s right to personal autonomy.

The 1997 Legislature passed and Gov. Kitzhaber signed HB 3643 (B Eng.), a bill that once again would make possession of less than an ounce of marijuana a crime. However, this law will not take effect unless voters pass Measure 57 because opponents gathered the required number of signatures to refer it to the ballot.

In 1973, Oregon was the first state to decriminalize small amounts of marijuana. The ACLU supported the decriminalization effort then and we strenuously opposed HB 3643 last year.

One of the benefits of current law is that the consequences of marijuana possession are clear: a minimum fine of $500 up to a maximum fine of $1,000. Under the proposed law, that clarity will disappear. It seems likely that many district attorneys would exercise their discretion to treat many possession of less than an ounce cases as violations rather than as a crime. Other prosecutors may treat every case as criminal. It is just this type of inconsistency in prosecution and disproportionate sentencing that led Oregon and other states to decriminalize marijuana in the first place.

Another consequence of recriminalizing marijuana will be to increase the opportunities that police officers have to conduct searches of individuals without their consent. Under current law, possession of less than an ounce is not enough to justify a warrantless search of an individual or their vehicle. If possession of less than an ounce of marijuana becomes a crime, officers will have the authority they want to do more searches.

We believe the original justifications for decriminalizing are still valid: it is a waste of police and court resources to focus on such a petty offense; most people who use small amounts of marijuana are not involved in more serious crime.

Bill Sizemore and Oregon Taxpayers United proposed this measure in order to impede, if not completely eliminate, the ability of public employee unions to use payroll deductions to collect contributions for political purposes--including ballot measure campaigns.

The ACLU opposes this measure because it is an attack on the free speech and association rights of public employees and others. The language of the measure is so broad in its definition of political activity that it would put an end to the voter’s pamphlet and probably prohibit payroll deductions for mortgage payments (because banks use a portion of their profits to make political contributions) and for United Way (because many charities engage in some lobbying activities).

If, as a policy matter, the proponents of this measure believe it is inappropriate use of taxpayer dollars for government to facilitate payroll deductions for its employees, they should openly advocate elimination of the practice across the board. Instead, Oregon Taxpayers United has targeted deductions used for political purposes; activities which are clearly protected by the First Amendment.

Additionally, this constitution amendment is not necessary because public employees who do not wish to contribute to the political activities of their union already have the ability to opt out of paying the portion of dues that supports the union’s political work.

Former State Rep. Kevin Mannix and Steve Doell of Crime Victims United are the chief petitioners of this sentencing measure which takes up where Measure 11 of 1994 left off. Measure 61 would increase the required minimum sentences for a list of crimes, including many property crimes, and impose mandatory additional sentences for repeat offenders of specific crimes. The mandatory additional sentences could not be reduced for any reason and would be served in prison custody with no releases for furloughs or any type of temporary leave.

The ACLU opposes mandatory minimum sentences believing justice is better served when judges and corrections officials can have some level of discretion to account for mitigating circumstances or to provide incentives for inmates to reform. Additionally, we question the long-term value of directing even more funding into prison beds. ACLU encourages voters and lawmakers to focus more attention on crime prevention programs.

The measures we will review in September are:

Measure 58 - Allows adult adoptees to obtain copies of their original birth certificate even if the birth parent(s) would object to release of the information (statute).

Measure 60 - Requires vote by mail for all primary and general elections (statute).

Measure 62 - Requires campaign finance disclosures; regulates signature gathering; guarantees payroll deductions for political purposes for public employees unions (constitutional amendment).

Measure 63 - Supermajority requirement (constitutional amendment).

Measure 65 - Creates a process for requiring legislative review of administrative rules (constitutional amendment).

If you’d like more information about any of these measures, contact the Portland or Eugene ACLU office.

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"Vino" License Plate

When you pay for a custom car license plate, who’s speech is it – your’s or the state’s? Michael Higgins wants to know and so do we. In 1997, Higgins, a retired wine merchant, requested "wine" or "vino" for his personalized license plate, but the Oregon Division of Motor Vehicles turned him down. Representatives of the DMV said that allowing alcohol-related custom plates would make it look like the government is condoning drinking and driving.

ACLU cooperating attorney Ed Spinney appealed the DMV’s administrative ruling to the Oregon Court of Appeals. The case has already had several twists and turns because after denying Higgins’ request, the state attorney general’s office tried to convince DMV to eliminate the prohibition on alcohol-related plates.

We argued during the administrative rulemaking process that the new rules were also unconstitutional because they would have still prohibited plates that were "vulgar" or which a reasonable person found "offensive." At the same time, anti-drunk driving activists opposed eliminating ban on alcohol-related plates. In the end, DMV adopted the worst of the new revisions and kept the alcohol ban, too.

Now the state is arguing that vehicle owners can’t force the state to issue license plates containing messages the state doesn’t like. We’re arguing that the state has created a public forum for the speech of motorists which cannot be regulated based on content. We believe the only interest that state can justify is for each license plate to be unique. The case should be argued before the Court of Appeals this fall.

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HIV Discrimination

In July we filed a civil rights lawsuit in U.S. District Court in Eugene on behalf of "John Doe" who was discriminated against by his employer, an Oregon resort, when his employer learned that Mr. Doe’s wife had AIDS. Because highly sensitive medical information is at the center of this case, we have filed this action under a pseudonym to protect Mr. Doe’s and his wife’s privacy.

Mr. Doe was hired to do a job which required that he be capable of rendering some forms of emergency medical assistance. He was qualified to do the job and performed his duties satisfactorily. When his employer discovered that Mr. Doe’s wife has AIDS, Mr. Doe was informed that he could not continue in the job for which he had been hired. He was told if he took an HIV test and provided negative test results to his employer, he could return to his job. Otherwise, Mr. Doe would be reassigned in another, less desirable job. No other employees who held the same position as Mr. Doe were required to take an HIV test.

Mr. Doe and his wife decided he should not be singled out for this medical inquiry and refused to take the test for the employer. As a result, he was transferred to a less desirable job, on the night shift. The transfer was humiliating for Mr. Doe, especially because he could not explain to his fellow employees the reason for his demotion. Mr. Doe soon left this position due to the difficulty of the hours and working with unfamiliar equipment.

There is no significant risk of HIV transmission from an individual to co-workers, customers, or anyone else in the course of performing the job Mr. Doe was hired to do. The ACLU assisted Mr. Doe in filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission and the E.E.O.C. made a determination that the Oregon Resort’s action regarding Mr. Doe violated the Americans with Disabilities Act.

Oregon ACLU cooperating attorney Kathy Wilde prepared Mr. Doe’s complaint to the E.E.O.C. ACLU cooperating attorneys Martha Walters and Suzanne Chanti of Eugene and Matt Coles, Michael Adams and Jennifer Middleton, staff attorneys for the National ACLU’s HIV/AIDS Project in New York, will provide direct representation for Mr. Doe. Cooperating attorney Robynne Whitney of Eugene also assisted in filing the lawsuit.

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Separation of Church & State, Religious Discrimination

Are the Boy Scouts of America a religious organization? And, if they are, should Oregon public schools actively assist the BSA in recruiting members during school hours and on school property?

These questions are at the center of the lawsuit we have filed on behalf of a Portland family to prevent the Portland School District from actively participating in the recruitment of Cub Scouts at Harvey Scott Elementary School.

The ACLU lawsuit, filed in May in Multnomah County Circuit Court, argues that recruiting students to join the Cub Scouts during school hours and on school property is unconstitutional because the Cub Scouts and Boy Scouts are required by the Boy Scouts of America to refuse membership to boys who do not "profess a belief in God, recognize an obligation to God and declare a duty to God."

"The Boy Scouts have gone to court in other states to defend their policy of excluding atheists," Oregon ACLU Executive Director David Fidanque said. "If they’re going to have a policy that discriminates on the basis of religion, then they should not expect to get the active support and endorsement of government institutions like the Portland public schools."

The ACLU lawsuit was filed on behalf of Nancy Powell and her son, Remington Powell, who is in the second grade at Harvey Scott. After school staff assisted Cub Scout recruiters in placing wrist bands on students that urged them to join Cub Scout Pack 16, Ms. Powell complained to school officials that the school was violating the constitutional requirement of separation between church and state.

When the recruitment efforts continued last fall, Mrs. Powell filed a formal complaint with State Superintendent Norma Paulus under a state law which prohibits public schools from promoting religious activity. Deputy Superintendent Greg McMurdo ruled in March that the school district did not violate the law.

The ACLU is asking the court to review that finding and also to rule on whether the school district’s actions violated the Oregon Constitution, Oregon anti-discrimination law and Portland School District policies. District policy governing the use of school buildings and grounds by school and nonschool organizations [Section 3.30.020(9)] mandates that "any activities to which admission may be prohibited on the basis of race, religion, ethnic group, national origin, etc., shall not be conducted in the schools."

Nancy Powell emphasized that she is pursuing her complaint to get the school district "to play by its own rules and the rules that apply to every other government agency." The ACLU’s cooperating attorney in the case is Andrea Meyer.

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1998 MacNaughton Awards

We hope you will join us in honoring this years recipient of the E.B. MacNaughton Award, the Oregon Chapter of the Honorary Mississippi Bar Alumni. This year we are planning a reception and dinner and have joining up with the Multnomah Bar Association and the Oregon Chapter of the National Bar Association. This group of 25 Oregon attorneys went to Mississippi in the 1960’s under the auspices of the Lawyers Committee for Civil Rights Under Law (LCCR). These individuals volunteered to go to the South, at considerable personal risk, to provide legal services for people who had been denied their civil rights.


Larry Aschenbrenner
Frank Bauman
Carl Brophy
Kevin Carey *
Cliff Carlsen*
John Dellenbach
William H. Ferguson
Robert Gygi*
John Haugh
Elliot Holden
Pat Hurley*
Bernard Jolles
Herbert Lombard, Jr.
Don Marmaduke
William C. Martin
Bonnie Mentzer
Charles Merten
Carl Neil
Joe Richards
Roger Rook
Leslie Swanson, Jr.
Jacob Tanzer
William Tobin, Jr.
Glenn Walker
Donald R. Wilson

* award presented posthumously

We are also thrilled that Myrlie Evers-Williams has agreed to be our keynote speaker for the evening. Ms. Evers-Williams has a long career as a civil rights activist, beginning when she and her first husband, Medgar Evers, opened the first NAACP Mississippi State Office. Most recently, Ms. Evers-Williams was the Chairman of the National Board of Directors of the National Association for the Advancement of Colored People (NAACP) from 1995 until February of this year.

Thursday, October 22, 1998
Downtown Portland Marriot
1401 SW Front Avenue
Reception 5-6pm Dinner 6-8:30pm

Tickets will not be issued, payment registers you and reserves your seats. If paying by check or money order, please make payable to the ACLU Foundation of Oregon. Mail response to ACLU, P.O. Box 40585, Portland, Oregon 97240-0585. Call 503-227-3186 for more information.