*1 hi.

CONCLUSION. affirm the

We Commission’s order. appeal

We award costs on to ISIF.

McDEVITT, SILAK, C.J., BISTLINE and JUDD,

JJ., J., Tem., Pro concur. UNION,

AMERICAN CIVIL LIBERTIES CHAPTER;

IDAHO Idaho for Human Inc.,

Dignity, non-profit an Idaho cor

poration; Bergquist, Brian an J.

elector; Brandt, Elizabeth Barker elector; Smith, Mary-Evelyn elector, Petitioners,

an Idaho

v. ECHOHAWK,

Larry Idaho;

the State of and Pete Cenarru

sa, Secretary of State of the State

Idaho, Respondents. COMMITTEE,

STOP SPECIAL RIGHTS

Kelly Walton, elector; A. an Idaho Ellen Stark, elector, Petitioners,

J. an Idaho

Larry ECHOHAWK, Attorney Idaho; and Pete Cenarru

sa, Secretary of State of the State of

Idaho, Respondents.

Nos. 20618.

Supreme Court of

Boise, June 1993 Term.

Aug. Patterson, Boise,

George C. petition- ers. Walton,

Kelly Heyburn, petitioner Stop Special Rights Committee. EchoHawk, Gen., Larry Atty. and Fran- Walker, Gen., Boise, Deputy Atty. cis P. *2 person respondents. Francis P. Walker ar- who is dissatisfied the ballot for provided by the short title gued. measure, may attorney general for McDEVITT, Chief Justice. general’s] attorney from deci- appeal [the by Supreme petition,

sion Court BACKGROUND setting praying for a different title and why prepared forth the reason the title (“ICA”) is The Idaho Citizens Alliance attorney general insufficient enough spearheading an effort obtain Supreme shall unfair.... Said Court get regarding an initiative signatures to measure, thereupon said hear examine homosexuality on treatment of state law in thereon cer- argument, and its decision the ballot. The ICA submitted secretary of state a ballot title tify to the Idaho Gen- initiative in and a short title for the measure ac- Office, and the eral’s of this section. The cord with intent legal conducting non-binding review after secretary print shall on the offi- of state initiative, crafted of the substance of the certified to him. cial ballot the title thus proposed initia- long and titles for the short pursuant peti- 34-1809. The tive I.C. § Attorney General was directed to The tioners, Rights Stop Special Committee provide and titles for the follow- short (“SSRC”) and the American Civil Liberties initiative”): (the ing proposed law “ICA (“AGLU”), petition this Court from Union titles, claiming those 67, CHAPTER TITLE PROPOSED provide proper did not titles. 80, IDAHO CODE

ANALYSIS OF ACT. Section 67-8001: PURPOSE provision[s] Chapter 80 of Title directed, by by the the Idaho Code are enacted draft short and titles recogni- in people the State of Idaho portion of I.C. initiatives. The relevant form homosexuality shall not tion that provides: 34-1809 minority granting the basis for printed used and shall be Said ballot chapter promulgated status. This petition when of the on the covers provisions of Article of the furtherance print- circulation; title shall be the short 24 of the Section Constitution of (20) twenty type not less than ed State Idaho. petitions of all such points on the covers RIGHTS ti- Section 67-8002: SPECIAL signatures. The ballot circulated IN (1) WHO ENGAGE FOR PERSONS contain: Distinctive tle shall PROHIB- (20) BEHAVIOR exceeding twenty words HOMOSEXUAL in not politi- agency, department, No re- ITED. the measure which Idaho shall of the cal subdivision State spoken and which shall ferred to or rule, policy, or adopt any enact or margin signa- of each in the foot printed purpose has or ef- (2) which general agreement petition. ture sheet of per- minority granting status two fect of in not more than expressing engage in homosexual behav- who sons hundred words behavior; ior, solely of such on the basis print- shall be The ballot title measure. action, therefore, quota pref- affirmative on of the measure ed with the numbers erences, such special classifications making such ballot the official ballot. desig- or similar “sexual orientation” shall to the attorney general title the on shall not be established nations ability give a true best of his her] [or per- private homosexuality. All basis of purpose of the impartial statement equal protec- guaranteed shall be that the sons language such and in measure exer- free law in the full and intentionally tion shall not be ballot title guaran- rights of all enumerated prejudice cise likely to create argument or Constitution, the Consti- U.S. Any teed the measure. against either for or tution of the federal subdivision the State of Idaho shall All existing rights and state law. civil generally pri- forbid the consideration of color, race, on protections religion, based factors, as non-job vate sexual behaviors gender, age, origin or national are reaf- provided compliance with the Title *3 firmed, public and services shall be avail- maintained, Chapter Idaho Code is persons equal able to all on an basis. disrupt and such do that factors not place. work Section 67-8003: EXTENSION OF LE- GAL INSTITUTION OF Section 67-8007: MARRIAGE SEVERABILITY. INTEND, any part TO PEOPLE that if DOMESTIC PARTNERSHIPS unconstitutional, BASED ON HOMOSEXUAL enactment be found BEHAV- n remaining parts in IOR PROHIBITED. Same-sex mar- shall full survive riages partnerships and domestic force effect. are and This section shall be in hereby against public poli- parts self-executing. declared be all cy recognized and shall be legally not in (Emphasis original.) in any manner an agency, department, provided the fol- political or subdivision of the State of lowing short title and title for the ICA Idaho. initiative: Section 67-8004: PUBLIC SCHOOLS. employee, representative, agent No or SHORT TITLE any public elementary secondary An establishing policies regard- act state shall, in school connection with school ing homosexuality. activities, sanction, promote, or endorse homosexuality approved a healthy, as TITLE LONG acceptable Subject pro- behavior.

visions federal discussion of relating homosexuality Initiative and homosexuality within such schools shall authority the state’s to afford homosexu- age-appropriate and defined autho- minority status; enacting als chap- a new rized the local school board trust- ter, chap. pro- Idaho Code: Counseling public ees. school stu- viding no agency, department that state regarding dents such students’ sexual political shall grant subdivision minori- identity shall conform in foregoing. ty persons status who in engage ho- behavior; providing mosexual same- that Section 67-8005: EXPENDITURE OF marriages sex partnerships domestic No agency, depart- PUBLIC FUNDS. legally recognized; shall providing not political ment or subdivision elementary secondary that school ed- expend public of Idaho shall funds in a homosexuality ucators shall not discuss manner that has the or effect of behavior; acceptable providing that no promoting, making acceptable, or ex- expended state funds shall be in man- a pressing approval of homosexuality. ner has the accepting that effect of prohibit govern- This section shall not approving homosexuality; limiting to ment from providing positive guidance library adults access to materials which persons experiencing difficulty toward homosexuality; providing address that identity. with sexual This section shall private practices may sexual be consid- not limit availability public in li- non-job public employ- ered in factors braries of books and materials written ment; providing severability for adults which homosexuality, address clause. provided such access to materials is limit- ed to adults and meets local standards as The ACLU attacks the short as be- through library established the normal ing “insufficient” in- and “unfair.” As to process.

review sufficiency, contends that the Section 67-8006: EMPLOYMENT FAC- insufficient “because nowhere in the regard With public employ- posed TORS. in initiative and nowhere the Idaho ees, agency, department political no ‘homosexuality’ Code term is the defined.” grant definitions in ute does The ACLU cites Webster’s not Dictionary, points power duty New World to correct problems Third actual homosexual con- writing distinction between initiative the titles. feelings, generally ar- duct and mere “homosexuality” is gues the term History A. of I.C. 34-1809. § vague and over-inclusive. As to unfair- Legislature The Idaho State enacted I.C. ness, the contends that the ICA ACLU 210, 9, 34-1809 in 1933. Ch. 1933 Ida- is unfair in that initiative recites ho Session Laws 437-38. al- policy it “establishes” a when Idaho apply first This Court was asked to policy has a as set forth ready provisions 34-1809 in Girard Const, (“All men are nature art. *4 430, Miller, (1935). 55 Idaho 43 P.2d 510 (2) equal....”), free use of the Girard, Secretary In the Idaho of State “homosexuality” could be confused term to asked the Court issue a writ of mandate activities, i.e., sodomy criminal Idaho’s with compel Attorney provide to the to General 18-6605, the initia- I.C. when ICA’s petition. a ballot title a referendum rights. to restrict civil tive seeks Court, opinion, per in a issued curiam the The ACLU also attacks writ, holding duty the the that Attor- “unfair,” and being “insufficient” and ney provide to a ballot title under particular objection: following the makes Girard, is I.C. 34-1809 ministerial. 55 “minority status” is not defined the term 431, at 43 P.2d at 510. Idaho is, therefore, vague and over-inclusive. In this Court was also faced with Attorney General’s Additionally, the Idaho 34-1809, However, provisions the of I.C. § Office, in of states its Certificate Review time, provisions re- this the substantive any special not confer that Idaho law does of garding the content ballot titles were Furthermore, the status on minorities. squarely presented. In re Petition defined, of is not term “homosexual behavior” Labor, 75 Idaho Fed’n Idaho State of same reasons stated and it fails the (1954), petitioner the labor the of the short above under discussion appealed Attorney Gener- union from the not clear the term title. It is whether “right given al’s to a to work” “marriages” only or “same-sex” modifies argued that the At- initiative. The union partner- it “domestic

whether also modifies torney General’s short title was defective strictly is limited ships.” The initiative not membership to it lacked reference “because Instead, applies to “educators.” membership of in a labor union or lack agent” a representative, or of “employee, organization, with further elaboration secondary public elementary or school. thereof, qua pro- non of the the sine Further, only apply not the initiative does posed Idaho State Fed’n measure.” of twelve, ap- grades through it also one Labor, at 75 at 272 P.2d 708. Idaho prohibition plies colleges because of in a manner that “public funds spending of Preliminarily, we stated: promoting, purpose or effect of has the statute, Attorney General Under the approval making acceptable, expressing draft, of within ten words exclusive homosexuality....” designation, Proposal “Initiative For,” the mea- title which concedes that distinctive The SSRC However, spoken referred proper. commonly short title is sure of_ General’s Thus, ... must this short title argues the first sentence of that the measure only to mean that a title which title could understood not be of, rights spoken grant special commonly referred to initiative would ICA must also be distinctive. but minorities. Labor, at 75 Idaho Fed’n Idaho State asserts added). Af- (emphasis analyze the 272 P.2d at 710 titles is not to purpose ballot of “dis- dictionary definitions quoting its ter or address legal of the measure content tinctive,” we held: shortcomings, stat- merits

151 (underline) must, therefore, following This short title so far as language from words, possible within ten set forth statute: distinguish characteristics which (1) The ballot title shall contain: Distinc- expeditiously measure and and ac- exceeding title in tive short not ten twen- curately acquaint the prospective signer (420) ty words which the measure he she is sponsoring. what to or spoken referred of and Labor, at Idaho State Fed’n 75 Idaho printed in margin which shall be the foot words, at 272 P.2d other signature petition. of each sheet of the purpose requirements of the short title (2) general may- which not acquaint prospective is “to legislative distinct from signers with the distinctive characteristics expressing measure not more than one measure....” two hundred words the Labor, at State Fed’n the measure. P.2d at 711. analysis Applying our facts Application of I.C. B. 34-1809 to the case, we held that the Long General’s Short and Ti- was proper, short title not when considered *5 tles. content, thrust, light of the or the of proposed legislation: 1. The Short Title. The chief para- characteristic and mount, distinctive of the features 34-1809, Under I.C. the funda § are, statute that a person shall inquiry mental is whether the short seek, gain, allowed obtain and retain “distinctive,” is, whether short ti the employment regardless of or not whether tle forth the characteristics which “set[s] he is a member of a labor union labor distinguish this measure and ex organization.... Thus, stated, tersely peditiously accurately acquaint pro the right this is an initiative measure the spective signer what with he she regardless membership work of union Labor, sponsoring.” Idaho Fed’n of non-membership. 373, 75 Idaho at 272 P.2d at 710. Our Labor, Idaho State Fed’n 75 Idaho at examination ICA initiative discloses 375, disapproved 272 P.2d at 711. We that its chief characteristic is that would title, Attorney short di- General’s and we policies establish various state ho towards rected him to “prepare a title in accordance mosexuality. policies pro include the expressed with the views file herein and granting “minority hibition homosexuals the same the Secretary with of State” with- status,” prohibition of “same-sex mar days opinion in five becoming final. riages” partnerships,” and “domestic re Labor, Idaho 75 at State Fed’n discussing homosexuality against strictions 376, 272 P.2d at 712. schools, public and restrictions 1979, legislature I.C. amended against expenditure public funds for 34-1809 the first time. Ch. § § purposes relating certain to homosexuals. 1979 Idaho Session Laws 340-41. The Attorney General’s short is not provided for a amendment review of initia- argumentative prejudicial, but instead measures, tive and referendum the “certifi- impartial a true and statement ICA by Attorney as cate review” initiative. We hold that the Gen prerequisite assignment of a ballot title, establishing eral’s short act “[a]n title. policies regarding homosexuality,” state captures the distinctive characteristic

Finally, I.C. amended 34-1809 was using language by which recently the ICA initiative most Ch. required referred to as Session Laws 70-72. The amend- certify the ment I.C. 34-1809. We thus language deleted certain and stream- title, procedures. particular, lined this written (strikeout) Secretary of amendment deleted and added the State. Long challenges the merits of these that arise

2. The Title. because of our decision in case. long Under express to 200 words and must is limited J., BISTLINE, concurs. “purpose of the measure.” The Attor begins ney General’s subject

explanation of the matter of the initiative, relating to ho

ICA “[initiative

mosexuality authority to and the state’s status,” minority homosexuals

afford goes through the mea

then each section of

sure, summarizing specific purpose in the initiative. Certain each section ICA ways ly, may acceptable there other In the Matter of the ESTATE OF However, it the title. is not our write MUNDELL, Orie E. Deceased. way role find another or the best judicial way, to examine the Gener but MUNDELL, surviving Eva widow expresses language al’s and ask whether it deceased, Mundell, E. of Orie “purpose of the measure” without be Plaintiff-Appellant, ing hold argumentative prejudicial. We long title that the does express purpose of ICA initiative MUNDELL, surviving E. James son being argumentative prejudicial.

without deceased; Teats, Mundell, Mary E. Orie title, certify thus written We Mundell, surviving daughter of E. Orie *6 Secretary deceased; Sandy Lindsley, surviv- State. Mundell, ing daughter E. de- of Orie

ceased, Defendants-Respondents. CONCLUSION No. 19071. expressed views accordance Supreme Court of

herein, certify we Lewiston, May Term. ICA initiative titles Secretary State. Aug. No costs or fees. SILAK, JJ., concur.

TROUT

JOHNSON, Justice, concurring

result.

I concur in the certification Court’s by the prepared titles

the short and only to make

attorney general. I write my no concurrence one reads

sure implicit rejection of the

this result to be proposed on act.

substantive attacks view, questions my there are serious

concerning of some of the vagueness If act. the initiative

terms of successful, prepared I will to address act, being limited

challenges to the without concerning implications

by any suggested