Gary M. CARLSON, Petitioner, υ. Hardy MYERS, Attorney General of the State of Oregon, Respondent, and Robert D. DAVIS, Elli Work and Matt Devore, Intervenors.
SC S44806 (Initiative No. 58); SC S44808 (Initiative No. 59); SC S44818 (Initiative No. 60); SC S44830 (Initiative No. 64); SC S44909 (Initiative No. 67)
Supreme Court of Oregon
Argued and submitted March 4, ballot titles certified June 18, 1998
959 P.2d 31
(Cases consolidated for argument and opinion)
Philip Schradle, Assistant Attorney General, Salem, argued the cause on behalf of respondent. With him on the answering memoranda were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
James S. Coon, of Swanson, Thomas & Coon, Portland, argued the cause and filed memoranda on behalf of intervenors.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Kulongoski, and Leeson, Justices.*
KULONGOSKI, J.
Durham, J., concurred and filed an opinion.
*Graber, J., resigned March 31, 1998, and did not participate in the decision of this case.
This original proceeding consolidates five separate ballot title challenges to the Attorney General‘s certified ballot titles for proposed initiatives 58, 59, 60, 64, and 67.1 Petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General‘s draft ballot titles for each proposed measure.
Petitioner challenges the caption, result statements, and summary of each of the five certified ballot titles, arguing that the ballot titles are misleading and inaccurate and, therefore, fail to comply with the requirements of
For the reasons that follow, we hold that the ballot title certified by the Attorney General for each of the five measures substantially complies with the requirements of
Proposed Initiative 58
Proposed initiative 58, entitled the “Oregon Taxpayer Fairness Act,” would equalize corporate income and excise tax rates and personal income tax rates. It also would require that the percentage amount of excess revenues credited to corporate income and excise taxpayers be no greater than the percentage amount of excess revenues refunded to personal income taxpayers. Proposed initiative 58 would distribute any increased revenues in the 1997-99 biennium to school districts for textbooks or capital improvements. For the 1999-2001 biennium, it would distribute one-half of any increased revenues to counties for crime-prevention services and one-half to school districts for learning enhancements in the classroom.
Pursuant to
“REQUIRES EQUAL CORPORATE INCOME/EXCISE AND PERSONAL INCOME TAX RATES
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote requires state‘s corporate income/excise tax rates to equal personal income tax rates.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains state‘s corporate income/excise tax rates separate from personal income tax rates.
“SUMMARY: Current law does not link corporate income/excise tax rates to personal income tax rates. Measure requires state‘s corporate income/excise tax rates to equal state‘s personal income tax rates. Current law also establishes separate excess revenue refunds for corporate
income/excise taxpayers and personal income taxpayers when revenues received exceed certain estimates. Measure limits corporate income/excise taxpayers’ refund rate to personal income taxpayers’ refund rate for same biennium. Distributes certain increased revenues to counties for crime prevention services and to school districts.”
Proposed Initiative 59
Proposed initiative 59, entitled the “Oregon Tax Reduction and Equalization Act,” would reduce the maximum personal income tax rate from 9 percent to 8.85 percent and equalize corporate income and excise tax rates and personal income tax rates. It also would require that the percentage amount of excess revenues credited to corporate income and excise taxpayers be no greater than the percentage amount of excess revenues refunded to personal income taxpayers.
Pursuant to
“REDUCES MAXIMUM INCOME TAX RATE; EQUALIZES PERSONAL/CORPORATE TAX RATES
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote reduces maximum personal income tax rate and equalizes certain personal/corporate tax rates.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current personal income tax rate and retains separate personal/corporate tax rates.
“SUMMARY: Current state law does not link corporate income/excise tax rates to personal income tax rates. Measure reduces state‘s maximum personal income tax rate from 9% to 8.85% and requires state‘s corporate income/excise tax rates to equal state‘s personal income tax rates. Current law also establishes separate excess revenue refunds for corporate income/excise taxpayers and personal income taxpayers when revenues exceed certain estimates. Measure limits corporate income/excise taxpayers’ refund rate to personal income taxpayers’ refund rate for same biennium.”
Proposed initiative 60, entitled the “Fair Taxpayer Refunds Act,” is somewhat simpler. It would require that the percentage amount of excess revenues credited to corporate income and excise taxpayers be no greater than the percentage amount of excess revenues refunded to personal income taxpayers. Proposed initiative 60 would distribute any increased revenues to school districts for textbooks or capital improvements.
Pursuant to
“LIMITS CORPORATE TAXPAYERS’ EXCESS REVENUE (‘SURPLUS KICKER‘) REFUND RATE
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote limits corporate taxpayers’ excess revenue refund rate to personal income taxpayers’ refund rate.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains separate excess revenue refund rates for corporate taxpayers and personal income taxpayers.
“SUMMARY: Current state law establishes separate excess revenue determinations and separate excess revenue refund rates for corporate income/excise taxpayers and personal income taxpayers. Such ‘surplus kicker’ refunds are required when revenues received exceed estimates by two percent. Measure limits corporate income/excise taxpayers’ refund rate (provided as a tax credit) to personal income taxpayers’ refund rate during same biennium. Limitation first applies to ‘surplus kicker’ refunds in 1999-2001 biennium. Measure distributes any increased revenues to school districts for textbooks or capital improvements.”
Proposed Initiative 64
Proposed initiative 64, entitled the “Fair Tax Equalization Act,” would reduce the maximum personal income tax rate from 9 percent to 8.85 percent and would equalize corporate income and excise tax rates and personal income tax rates. The measure also would require that the percentage amount of excess revenues credited to corporate income and excise taxpayers be no greater than the percentage amount of
Pursuant to
“REDUCES MAXIMUM INCOME TAX RATE; EQUALIZES PERSONAL/CORPORATE TAX RATES
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote reduces maximum personal income tax rate and equalizes certain corporate/personal tax rates.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current personal income tax rates and retains separate personal/corporate tax rates.
“SUMMARY: Current state law does not link corporate income/excise tax rates to personal income tax rates. Measure reduces state‘s maximum personal income tax rate and requires state‘s corporate income/excise tax rates to equal state‘s personal income tax rates. Current law also establishes separate excess revenue refunds for corporate income/excise taxpayers and personal income taxpayers when revenues received exceed certain estimates. Measure limits corporate income/excise taxpayers’ refund rate to personal income taxpayers’ refund rate for same biennium. Distributes any increased revenues to schools.”
Proposed Initiative 67
Proposed initiative 67, entitled the “Fair Tax and Tax Relief Act,” would reduce the maximum personal income tax rate from 9 percent to 8.85 percent and would equalize corporate income and excise tax rates and personal income tax rates. The measure also would require that the percentage amount of excess revenues credited to corporate income and excise taxpayers be no greater than the percentage amount of excess revenues refunded to personal income taxpayers. Proposed initiative 67 would distribute any increased revenues as follows: one-half to counties for crime-prevention activities; one-half to school districts for learning enhancement in the classroom.
“REDUCES MAXIMUM INCOME TAX RATE; EQUALIZES PERSONAL/CORPORATE TAX RATES
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote reduces maximum personal income tax rate and equalizes certain corporate/personal tax rates.
“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current personal income tax rates and retains separate personal/corporate tax rates.
“SUMMARY: Current state law does not link corporate income/excise tax rates to personal income tax rates. Measure reduces state‘s maximum personal income tax rate and requires state‘s corporate income/excise tax rates to equal state‘s personal income tax rates. Current law also establishes separate excess revenue refunds for corporate income/excise taxpayers and personal income taxpayers when revenues received exceed certain estimates. Measure limits corporate income/excise taxpayers’ refund rate to personal income taxpayers’ refund rate for same biennium. Distributes increased revenues to schools/counties.”
As noted, petitioner challenges the caption, result statements, and summary for each of the five ballot titles certified by the Attorney General. Petitioner argues that the ballot titles are misleading and inaccurate and, therefore, fail to comply substantially with the requirements of
Finally,
Based on the foregoing analysis, we conclude that the ballot titles certified by the Attorney General for the five proposed initiatives substantially comply with the requirements of
Petitioner also contends that, “[b]ecause of the resemblance between Initiative Nos. 58, 59, 60, 64, and 67, any formally sufficient ballot titles for the measures necessarily will resemble the other ballot titles” and that those titles therefore fail to comply with
“To avoid confusion, a ballot title shall not resemble any title previously filed for a measure to be submitted at that election.”
Petitioner asserts that
In order to resolve the issues presented by petitioner‘s arguments under
In interpreting a statute, this court‘s task is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The starting point for interpreting the statute is its text and context. Id. at 610-11. Words of common usage should be given their “plain, natural and ordinary meaning.” Id. at 611. Context includes earlier versions of the same statute. Krieger v. Just, 319 Or 328, 336, 876 P2d 754 (1994).
The wording of
We reject petitioner‘s argument with regard to the certified ballot titles for proposed initiatives 60 and 67, because those certified ballot titles do not “resemble” each other, nor do they “resemble” the certified ballot title for proposed initiative 58. Because the certified ballot titles for pro-posed initiatives 60 and 67 resemble neither each other nor the certified ballot title for proposed initiative 58, the standard set by
The ballot titles for proposed initiatives 59, 64, and 67 all closely resemble each other. Indeed, the three ballot titles are nearly identical: all three captions are identical, the “yes” and “no” results statements are identical for each of the
The interpretative challenge with respect to
Alternatively, the phrase “[t]o avoid confusion” could be read as language of qualification, making conditional the ban on certification of a ballot title that resembles a previously filed ballot title. Under that interpretation, the statute would prohibit resemblance between or among ballot titles where such resemblance would cause voter confusion. The context of
“The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election.” (Emphasis added.)
In the construction of amendatory acts, such as the one under consideration here, it is presumed that material changes in the language of the statute create material changes in meaning. At the same time, it is presumed that such changes in meaning do not go further than is expressly declared or necessarily implied. Fifth Avenue Corp. v. Washington Co., 282 Or 591, 597-98, 581 P2d 50 (1978). The legislature may have meant
When the intent of the legislature is not clear after an examination of the text and context of a statute, the court next considers the legislative history of the statute in order to inform the court‘s inquiry into legislative intent. PGE, 317 Or at 611-12. Unfortunately, there is no legislative history that sheds light on the legislature‘s intent regarding
Where no legislative history exists, this court will resort to general maxims of statutory construction, PGE, 317 Or at 612, including the maxim that where no legislative history exists the court will attempt to determine how the legislature would have intended the statute be applied, had it considered the issue. Westwood Homeowners Assn., Inc. v. Lane County, 318 Or 146, 158, 864 P2d 350 (1993) (citing PGE, 317 Or at 612), adhered to as modified 318 Or 327, 866 P2d 463 (1994).
Were we to read
The correct analytical route for this court is to avoid the statutory interpretation that would produce irreconcilable conflict and, instead, to construe the statute according to the probable intention of the legislature, had it considered the issue. Westwood Homeowners Assn., 318 Or at 158; PGE, 317 Or at 612. Had the legislature actually addressed this problem, in all likelihood it would have authorized this court to certify accurate ballot titles, such as those certified by the Attorney General for proposed initiative measures 59, 64, and 67, even if those ballot titles resembled an earlier certified ballot title. We thus conclude that interpreting
We certify the Attorney General‘s ballot titles for initiatives 58, 59, 60, 64, and 67.
Ballot titles certified. This decision shall become effective in accordance with ORAP 11.30(10).
DURHAM, J., concurring.
I write separately because I agree with the majority‘s decision to certify the Attorney General‘s ballot titles in these cases, but I do not agree with all of its analysis of the interpretive problems posed by
Furthermore, in ballot title review proceedings under
The judicial review procedure in
Petitioner argues that the Attorney General‘s ballot titles for initiatives 59, 64, and 67 “resemble” the ballot title approved for initiative 58, in violation of
The majority concludes that the statutory text is ambiguous because the introductory phrase, “[t]o avoid confusion,” can be read plausibly either as a statement of pur-pose that does not qualify the balance of the sentence or as a statement of a condition that must be shown to exist before the balance of the sentence becomes operative. I do not agree that the text is ambiguous. A straightforward reading of the text indicates that the introductory phrase, “[t]o avoid confusion,” describes the purpose that the legislature had in mind in drafting the statute. That phrase in no sense qualifies the operation of the prohibition on the certification of ballot titles that resemble each other that is expressed in the balance of the sentence.
“The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election.”
The former statute expressed a qualified prohibition. It forbade the certification of a ballot title that resembled another ballot title already on file if the later ballot title probably would cause confusion. It required the Attorney General, and this court on review, to determine the probability for confusion resulting from the use of similar ballot titles, and prohibited the use of similar ballot titles only if doing so probably would create confusion. Rooney, 322 Or at 43-44.
The 1995 amendment enacted a new and substantively different policy choice. The majority commits an analytical error in refusing to acknowledge that different choice and in labeling the 1995 amendment as “ambiguous.” The 1995 amendment unconditionally prohibits the certification of a ballot title that resembles another filed ballot title. When the legislature makes a substantive alteration in a statute, this court assumes that the legislature intends to effect a change in the existing statutory policy. See Jones v. General Motors Corp., 325 Or 404, 414-15 n 6, 939 P2d 608 (1997) (noting principle);3 Fifth Avenue Corp., 282 Or at 597 (in the construction of amendatory acts, the court assumes that “material changes in the language create material changes in meaning“). The majority
The majority also does not explain what is confusing about the legislature‘s introduction of the 1995 amendment with a phrase that indicates the legislature‘s purpose, “[t]o avoid confusion.” The words that follow that phrase express a clear rule prohibiting “resemblance” between ballot titles. Nothing in the text of the introductory phrase or its placement within the statute casts a doubt on the meaning of that statutory prohibition. Under the majority‘s approach, the legislature now must be concerned that combining a clear statutory requirement with a clear statement of legislative purpose will render the resulting statute “ambiguous.” In my view, that approach imposes an unnecessary constraint on the legislative drafting process.
The majority concludes that its comparison of
A statute‘s context also includes other related statutes. PGE, 317 Or at 611. However, the majority fails to consider another aspect of the statutory context of
“A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.”
When it considers statutes in context, the court is obligated to “utilize[] rules of construction that bear directly on the interpretation of the statutory provision in context.” PGE, 317 Or at 611. As noted in PGE, we derive those rules of construction from both statutes and case law. Ibid.
“If the language is plain and unambiguous, if it can be given but one meaning, and that meaning does not lead to an impossibility or an absurdity such as the legislature could not be supposed to have intended, the court must give effect to that meaning if constitutional, even though the result may be, in the court‘s opinion, harsh, unjust or mistaken in policy[.]
“When, however, a literal application of the language produces an absurd or unreasonable result, it is the duty of the court to construe the act, if possible, so that it is a reasonable and workable law and not inconsistent with the general policy of the legislature[.]” (Citations omitted; emphasis supplied.)
This court has relied repeatedly on that statement in Fox to reject proposed statutory constructions that, although sup-ported by a literal reading of statutory text, produced unworkable results in actual application. See Johnson v. Star Machinery Co., 270 Or 694, 704-09, 530 P2d 53 (1974) (court construed statute of repose governing “negligent injury” to apply as well to a strict product liability claim); State v. Irving, 268 Or 204, 206-07, 520 P2d 354 (1974) (court rejected a literal interpretation of a criminal procedural statute because it produced a “patently unreasonable result“); Beck v. Aichele, 258 Or 245, 249, 482 P2d 184 (1971) (court rejected a proposed statutory construction that would create a monop-oly because, “[i]n light of our everyday knowledge and common sense, this interpretation is absurd“).
Another relevant rule of construction of statutes in context appears in Wright v. Blue Mt. Hospital Dist., 214 Or 141, 147, 328 P2d 314 (1958):
“[It is a] well-established rule of statutory construction that when one construction will make a statute void for conflict with the constitution, and another will render it valid, the latter will be adopted though the former at first view is otherwise the more natural interpretation of the language.”
The Attorney General contends that, on occasion, the limitations of the English language will prevent compliance with all those statutory requirements. I agree. As this case illustrates, the English language furnishes insufficient vocabulary, grammar, and other means of expression to: (1) construct ballot titles for the closely related initiatives 59, 64, and 67 that comply with
In determining the legislature‘s intention in enacting statutes governing the certification of ballot titles, we must bear in mind one irreducible minimum requirement: the drafting process must take place within the context of the English language. The legislature did not intend to require the Attorney General, in carrying out his ballot title drafting function, to comply literally with
The real question here is what to do about the conflict between the requirements in
The Attorney General‘s argument suggests that the difficulty in eliminating resemblance between ballot titles arises, not in every ballot title case, but only in those cases in which compliance with
In my view, this court‘s task in this case is to recog-nize that a literal application of
My reading of
The analytical approach of this opinion and that of the majority can lead to very different substantive outcomes. Under the majority‘s approach, the focus of analysis is the supposed ambiguity of the phrase “[t]o avoid confusion.” The majority‘s construction permits the Attorney General to escape the responsibility to comply with
I join in the certification of the Attorney General‘s ballot titles for initiatives 59, 64, and 67, because I am persuaded that the Attorney General cannot prepare more distinctive ballot titles for those measures, given the limitations of the English language that govern that task. I disagree with the majority‘s conclusion that the use of similar ballot titles here will not cause voter confusion. Indeed, unless and until the legislature revisits the problems created by
Until the legislature reconsiders
I concur.
Notes
| Initiative Number | 58 | 59 | 60 | 64 | 67 |
| Same Corporate/Personal Tax Rates | X | X | X | X | |
| Corporate Kicker Credit Percentage not greater than Personal Kicker Refund Percentage | X | X | X | X | X |
| Appropriation (see key below) | ‘97-‘99: 1 ‘99-2001: 2 | X | 1 | ‘97-‘99: 1 ‘99-2001: 3 | ‘97-‘99: 1 ‘99-2001: 4 |
| Reduction of Maximum Personal Income Tax Rate from 9% to 8.85% | X | X | X |
A separate question concerns whose potential confusion is at stake. It is easy to conclude that the legislature was concerned about the potential confusion of voters. However, in drafting
Finally, the meaning of the term “resemble” in this context is far from clear. Like beauty, it is a quality that may exist only in the eye of the beholder. Because that term calls for what can only be fairly described as a subjective determination, it invites litigation and inevitably will produce the attendant negative consequences of delay in the initiative process and an increased workload for the Department of Justice and this court. This court need not resolve what “resemble” means in this case, because the parties agree that the ballot titles for initiatives 59, 64, and 67 resemble the ballot title filed for initiative 58 within the meaning of
“Each of these common sense approaches fits some cases but not others, each has ‘exceptions’ and opposite-and-equal counterparts, and each causes more harm than it is worth if it is not cheerfully ignored whenever it is an obstacle to understanding what the legislature enacted.” Davis v. Wasco IED, 286 Or 261, 274, 593 P2d 1152 (1979) (Linde, J., concurring) (footnote omitted).
The mistaken tendency of some judges and lawyers to treat those aids to interpretation as enacted law is due in part to this court‘s announcement in 1993 in PGE that it would follow a template for statutory interpretation. But for this court‘s announced preference for a methodological approach to interpreting statutes, I would avoid citing interpretive aids in opinions as if they are binding law. They are not. Professor Sinclair makes a similar helpful observation:
“[W]e [should not] expect a general theory of statutory interpretation to be very detailed. The principle of legislative supremacy *** requires top-down, Euclidean reasoning, and with it, a resort to legislative intent where necessary for the application of underdeterminate statutes. Within that boundary, we should not expect—and nor do we find—strict limitations on method.” M.B.W. Sinclair, Statutory Reasoning, 46 Drake L Rev 299, 382 (1997).
“Do not expect anybody‘s theory of statutory interpretation, whether it is your own or somebody else‘s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.” Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, 1169 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 2d ed 1994).