FILED: March 26, 1998

ALICE DALE, ROGER GRAY, and
JAMES SAGER,

Petitioners,

v.

HARDY MYERS, Attorney General,
State of Oregon,

Respondent,

and

N. M. RYMAL,

Intervenor.

In Banc

On petition to review a ballot title.

Argued and submitted March 5, 1998.

Lynn-Marie Crider, Salem, argued the cause for petitioners and filed the petition for Alice Dale. With her on the petition was Paul B. Gamson, of Smith, Gamson, Diamond and Olney, Portland, for petitioners Roger Gray and James Sager.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Gregory W. Byrne, Portland, filed a brief for intervenor.

LEESON, J.

Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).

LEESON, J.

This is an original proceeding to review a ballot title for a proposed initiative measure that would amend the Oregon Constitution. Petitioners are electors who timely submitted written comments about the Attorney General's draft ballot title, ORS 250.067(1), and therefore are entitled to seek a different title in this court, ORS 250.085(2). They challenge the result statements and the summary of the ballot title. We review the ballot title for substantial compliance, modify the result statements and, as modified, certify the ballot title. ORS 250.085(5).

The proposed measure, which would add a new section to Article I of the Oregon Constitution, is entitled the "Taxpayer Protection Initiative" and generally provides:

"No new tax, fee, or charge shall be imposed, assessed or levied, and no existing tax, fee or charge shall be increased by the state or any local government or taxing district, unless the new tax, fee, or charge, or increase thereof is first approved by not less than two-thirds of voters voting on the question in an election held on the first Tuesday after the first Monday of November of any year."

The measure, if adopted, also would repeal some previously enacted taxes and fees.

The Attorney General certified the following ballot title for the proposed measure:

"AMENDS CONSTITUTION: REQUIRES 2/3 VOTER APPROVAL FOR
MOST NEW, INCREASED TAXES, FEES

"RESULT OF 'YES' VOTE: 'Yes' vote requires 2/3 voter approval for most new, increased, and some past, taxes, fees.

"RESULT OF 'NO' VOTE: 'No' vote rejects requiring 2/3 voter approval for most new, increased, some past, tax measures.

"SUMMARY: Amends Constitution. Law currently permits voters to pass tax measures by majority vote; not all new, increased taxes, fees must be approved by voters. Measure prohibits most new, increased taxes, fees, charges unless approved by 2/3 of those voting. Repeals some taxes, fees imposed or increased in preceding year, unless approved by 2/3 vote. Prohibits ballot, other government publications from stating how some new, increased taxes, fees would be used. Lists exemptions, including some temporary increases, renewal of public safety levies, bond measures. Other provisions."

ORS 250.035(2) requires a ballot title for a state measure to contain a caption of not more than 10 words that reasonably identifies the subject matter of the measure; simple and understandable statements of not more than 15 words each that describe the result if the measure is approved or rejected; and a concise and impartial statement of not more than 85 words summarizing the measure and its major effect.

Petitioners do not challenge the Attorney General's caption. They do contend that the "yes" and "no" result statements do not comply substantially with the requirements of ORS 250.035. According to petitioners, the Attorney General's "yes" result statement is underinclusive, because it does not explain adequately that certain taxes and fees that were increased or imposed during the year before the December 1998 effective date of the proposed measure would be repealed. Furthermore, petitioners contend, voters will be confused by the assertion that two-thirds voter approval is required for "some past, taxes, fees." They suggest that the phrase, "applies retroactively," is more accurate than "some past, taxes, fees."

The Attorney General's "yes" result statement does not explain adequately that some taxes and fees would be repealed if the proposed measure is approved. Consequently, the "yes" result statement fails to comply substantially with the requirements of ORS 250.035(2). We certify instead the following "yes" result statement:

RESULT OF "YES" VOTE: "Yes" vote requires 2/3 majority to approve most tax, fee increases; repeals certain taxes, fees.

Petitioners also object to the "no" result statement, contending that it suggests that the proposed measure creates a supermajority rule applicable to tax measures that already require voter approval and that the proposed measure applies only to taxes and not to fees. We conclude that the "no" result statement's reference to "tax measures" fails to comply substantially with ORS 250.035(2). We certify the following "no" result statement:

RESULT OF "NO" VOTE: "No" vote retains current rules for approving, increasing taxes, fees; maintains previously approved taxes, fees.

Finally, petitioners contend that the Attorney General's summary fails to comply substantially with the statutory requirements, because it fails to explain that it is a vote of the people that is required to approve the taxes, fees, and charges to which the measure applies and because the summary sometimes uses the phrase "taxes, fees" and other times uses "taxes, fees, charges." However, read as a whole, the Attorney General's summary makes clear that "those voting" refers to voters and not to the legislature or some other elected or appointed body. Moreover, in the light of the 85-word limitation that applies to a ballot title summary, reference to "taxes, fees" substantially complies with the statutory requirements.

Pursuant to ORS 250.085(5), we certify the following ballot title to the Secretary of State:

AMENDS CONSTITUTION: REQUIRES 2/3 VOTER APPROVAL FOR
MOST NEW, INCREASED TAXES, FEES

RESULT OF "YES" VOTE: "Yes" vote requires 2/3 majority to approve most tax, fee increases; repeals certain taxes, fees.

RESULT OF "NO" VOTE: "No" vote retains current rules for approving, increasing taxes, fees; maintains previously approved taxes, fees.

SUMMARY: Amends Constitution. Law currently permits voters to pass tax measures by majority vote; not all new, increased taxes, fees must be approved by voters. Measure prohibits most new, increased taxes, fees, charges unless approved by 2/3 of those voting. Repeals some taxes, fees imposed or increased in preceding year, unless approved by 2/3 vote. Prohibits ballot, other government publications from stating how some new, increased taxes, fees would be used. Lists exemptions, including some temporary increases, renewal of public safety levies, bond measures. Other provisions.

Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).