Wilson/Fitz v. Rosenblum, S065263

Initiative Petition 21 (IP 21) would raise the cigarette tax by 100 mills per cigarette ($2.00 per pack of 20), remove a $0.50 per-cigar tax cap, direct new cigarette-tax revenue (after refunds) to the Public Health Account for local public health authorities, and make certain tax- and revenue-use provisions apply retroactively to distributions on or after Jan 1, 2018.
Oregon currently taxes cigarettes by mills per cigarette (total 66.5 mills per cigarette = $1.33 per 20-pack); cigars taxed at 65% of wholesale price capped at $0.50 per cigar.
The Attorney General certified a ballot title with a caption, 25-word yes/no result statements, and a 125-word summary; the caption read: "Increases cigarette tax; resulting revenue to fund public health programs; removes cap on cigar tax."
Petitioners (Wilson, Rainey, Fitz) challenged parts of the caption, the yes/no result statements, and the summary as legally insufficient or misleading (primarily for omitting magnitude of the tax increase, failing to state per-pack amount, and omitting retroactivity and revenue effects).
The Supreme Court reviews whether a certified ballot title "substantially complies" with statutory requirements and must refer the title back for modification if it does not.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Caption must state magnitude of cigarette-tax increase	Caption stating only "increases" conceals major effect; magnitude is material and should be specified	"Increase" accurately describes effect; complexity may preclude specifying magnitude	Court: Caption must show magnitude (per-pack preferred); bare "increases" is insufficient
Caption should state increase per pack vs per cigarette	Voters commonly understand per-pack and cigarettes are sold in packs of 20; per-pack framing more informative	Measure and statute specify tax per cigarette; not required to rephrase	Court: Caption may and should present major effect per pack to conform to common parlance
Caption should note retroactive application	Measure applies retroactively to certain provisions; omission is material	Partial retroactivity is not easily summarized within 15-word caption; not as central as other effects	Court: Partial retroactivity need not be reflected in the caption because accurately explaining which parts are retroactive cannot be done within the word limit
Summary should note potential reduced local revenues due to decreased demand	Increased price will likely reduce cigarette demand and thus reduce revenue for cities/counties relying on prior tax allocations	Summary must state actual effects; it cannot speculate about economic consequences like demand elasticity	Court: Summary should not speculate; omission of speculative decreased revenue is proper

Lavey v. Kroger, 350 Or 559 (2011) (caption must describe actual major effect(s) within 15-word limit)
Straube v. Myers, 340 Or 253 (2006) (complex tax measures may justify non-quantified captions)
Girard/Edelman v. Myers, 334 Or 114 (2002) (approved caption that specified per-pack cigarette tax increase)
Peterson v. Myers, 334 Or 48 (2002) (ballot language may use common parlance to convey major effect)
Kain v. Myers, 333 Or 446 (2002) (retroactivity was a required caption element when integral to measure)
Nearman/Miller v. Rosenblum, 358 Or 818 (2016) (summary must state actual effects and must not speculate)
Parrish v. Rosenblum, 362 Or 96 (2017) (accurate phrasing can still be misleading if it omits material facts)