Parrish v. Ellen Rosenblum
S065300
| Or. | Oct 25, 2017Background
- In 2017 the Oregon Legislature passed HB 2391, creating a Health System Fund and imposing temporary assessments on insurers, managed care organizations, the Public Employees’ Benefit Board, and certain hospitals; it also authorized insurers to raise premiums by 1.5%.
- Petitioners filed Referendum Petition 301 (RP 301) to refer specified sections of HB 2391 to the people; RP 301 includes the assessment provisions (sections 3(2), 5(2), 9(2), 27(2)(2)) and the insurer premium‑increase authorization (section 8(2)).
- A joint legislative committee prepared a ballot title for RP 301 (no ordinary word limits apply) containing a caption, “yes” and “no” result statements, and a summary.
- Petitioners challenged every part of the ballot title under ORS 250.035(2), arguing the caption, result statements, and summary are misleading, underinclusive or speculative (notably about the hospital assessment timing and whether the measures are "taxes").
- The Oregon Supreme Court reviewed the ballot title for substantial compliance with ORS 250.035(2) and SB 229’s standard and concluded that each part required modification, referring the title to the Attorney General for revision.
Issues
| Issue | Petitioners' Argument | Rosenblum's Argument | Held |
|---|---|---|---|
| Whether caption reasonably identifies subject matter | Caption obscures immediate effect (new temporary assessments) by emphasizing funded programs; omits insurer premium‑increase authority; should say "tax" | Caption correctly states that assessments will fund existing budgeted programs; "assessments" drawn from measure is adequate | Caption does not substantially comply; must be revised to prominently and accurately state that RP 301 would impose new temporary assessments and include insurer rate‑increase authority |
| Whether "yes" result statement describes immediate, significant effects | Fails to clearly and prominently state direct effect (imposition of assessments and insurer authority to raise premiums) | Substantial compliance because it references funding and assessments | Does not substantially comply; must be modified to explain immediate direct results (assessments and premium‑increase authority) |
| Whether "no" result statement improperly states that hospital assessment would still occur but be delayed | The statement is speculative about operability of section 28 and whether it would "resuscitate" the hospital assessment and thus misleads voters | The statement reflects a real legal outcome: if section 28 becomes operative it would authorize the hospital assessment on an alternate timeline | The court will not resolve unclear preenactment legal questions; the statement is speculative and must be revised to avoid asserting the delayed imposition as a definitive result |
| Whether summary improperly presents speculative hospital assessment timing and should use term "tax" | Last sentences repeat the same speculative theory about hospital assessment timing; also urges use of "tax" instead of "assessments" | "Assessments" is the term used in the measure; using measure language is acceptable and not misleading | Summary must be modified to remove speculative statements about hospital assessment timing; use of "assessments" (not "tax") is acceptable and retained |
Key Cases Cited
- Whitsett v. Kroger, 348 Or 243 (discusses determining subject matter by examining measure text and effect)
- Kain/Waller v. Myers, 337 Or 36 (caption must describe effect of measure in context of existing law)
- Kendoll v. Rosenblum, 358 Or 282 (caption must be clear and not unnecessarily difficult to understand)
- McCormick v. Kroger/Devlin, 347 Or 293 (caption that implies an existing tax rather than new revenue is misleading)
- Caruthers v. Myers, 343 Or 162 (using terms drawn from a measure can mislead if measure defines terms atypically)
- Dale v. Kulongoski, 322 Or 240 (accepting measure language for ballot title where term is commonly understood)
- Blosser/Romain v. Rosenblum, 358 Or 295 (general wording in caption may be acceptable over unnecessary specificity)
- McCann/Harmon v. Rosenblum, 354 Or 701 ("yes"/"no" statements should describe most significant and immediate effects)
- Conroy v. Rosenblum, 358 Or 807 (court should not speculate about unclear legal effects when reviewing ballot titles)