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Proponents of a proposed ballot proposition call it a “defense of marriage” and want the title and summary to say so. Instead, Attorney General Bill Lockyer labeled it an assault on domestic partner rights. On Thursday, a Sacramento County Superior Court judge ruled that each side had a point. Judge Raymond Cadei partially granted and partially denied a writ of mandate to amend the title and summary on a ballot measure supporters hope to put on the November 2006 ballot restricting marriage in California to between “one man and one woman.” The judge said Lockyer had it right — or right enough — in retitling the measure “Marriage. Elimination of Domestic Partnership Rights”instead of the proponents’ original: “The Voters’ Right To Protect Marriage Initiative.” “I don’t think that is misleading or false,” Cadei told the attorney for the measure’s proponents. “You might choose different words. I might choose different words. But that isn’t the standard.” But Cadei threw a bone to Mary McAlister, the proponents’ attorney, saying the AG must rewrite an “overbroad” 50-word sentence in the summary that details some of the effects of the measure on domestic partners. Cadei said the sentence goes too far by implying that entire categories of rights would be denied to same-sex couples, when there is no requirement that those rights be taken away. “I guess my problem is, at what point does something that is technically accurate become misleading?” Cadei said. “At some point, there is a gray area and a degree of concern. There is no bright line here.” Particularly troubling to Cadei were differences between the summary prepared for the measure and more detailed information provided in court documents prepared by Deputy Attorney General Jennifer Rockwell in response to concerns raised by McAlister, an attorney with the Florida-based Liberty Counsel. As an example, Cadei pointed out that the title and summary currently states that the measure could eliminate domestic partner rights regarding medical decisions and health benefits, though court documents indicate that the measure might only directly affect the right to intervene in a partner’s emergency medical decisions and to share health benefits of a partner who is a government worker. The judge also ordered both sides to return to court on Sept. 1 with the revisions, unless they can rework any remaining disagreements on their own and allow the measure to go forward. In California, the attorney general must review potential ballot initiatives and give them a brief title and a 100-word summary. That step is done before the measure is circulated to registered voters for signatures — a requirement for getting on the ballot. A version of the attorney general’s summary also appears on ballots if the initiative ends up meeting all the qualifications to go before voters. Proponents Larry Bowler, Ed Hernandez and Randy Thomasson had argued through the conservative Orlando-based Liberty Counsel that Lockyer’s office had rewritten the measure and re-titled it as a result of “personal bias.” Proponents do concede that the measure is also designed to eliminate “marriage rights” granted in legislation to registered same-sex partners. Joining the attorney general’s side as intervenors were Margaret Prinzing of Remcho, Johansen & Purcell and Jennifer Pizer of Lambda Legal. Challenges to attorney general summations involving measures having to do with health insurance and welfare reform were heard in Sacramento County Superior Court in the early 1990s. As a result, the title and summaries of two measures, propositions 165 and 166, were rewritten. In 1996, the 3rd District Court of Appeal sided with then-Attorney General Dan Lungren in his decision not to include the words “affirmative action” in his title and summary of Prop 209. Just recently, the California Supreme Court ordered a November ballot measure, Prop 77, back on the ballot, despite differences between the measure that proponents circulated and the version that was approved by Lockyer’s office for title and summary.

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