*1 27, 1990 February Argued certified as modified March and submitted NELSON, Petitioner, ROBERTS, Respondent.
(SC S36844) P2d 650 *2 Gardner, Hart, Lindsay, Weigler, James N. Neil & Port- land, petitioner. cause and filed the for argued petition General, Salem, Bagg, Attorney argued
John T. Assistant Answering respondent. the cause for With him on the Memo- General, Frohnmayer, Attorney randum were Dave Vir- Linder, General, ginia L. Solicitor Salem.
UNIS, J. Fadeley, J., specially concurring opinion filed a in which Hoomissen, J., Van joined.
501 UNIS, J. by petitioner under brought original proceeding,
This a initiative 250.085, challenge ORS involves Attorney General title certified measure’s ballot Secretary State, Secretary of State. Petitioner filed with 250.067(1), con timely written comments pursuant to ORS is, earlier draft ballot title Attorney General’s cerning 250.085(2) therefore, bring proceeding. entitled to Roberts, P2d Or 1045 (5); Deras v. see 417, 420, Or (1990); Nelson hereafter ballot title to extent modify challenged We set out. title certified reads as of State follows: TAXES AND TOBACCO
“INCREASES CIGARETTE SMOKING, FUND HEALTH PROGRAMS TO “QUESTION: taxes be Shall county smoking- and dedicated to fund state and increased programs? related “EXPLANATION: cigarette tax from 280 to 400 Increases inflation, annually Cigarette increases start- pack. Tax tax from 35% to ing 1992. Increases distribution *3 go biennially to price. of taxes $25 50% of wholesale million build million Health Trust Fund. Remainder $250 plus goes Oregon to Health Fund. Fund trust interest state, counties, smoking-related 60% 40% to distributes to programs. Legally and dedicates tobacco taxes programs.” to such in a ballot title is to deter reviewing
This court’s role by a the mine whether ballot title certified with Secretary compliance” to is in the State “substantial (as (in content) and ORS 250.039 ORS 250.035 form standards).1 250.085(4); see Deras v. readability certain ORS 1 250.039, readability by comply set a standard ORS title must with Under a ballot require Secretary practicable with the the State fullest extent consistent “to the 649, 652, Roberts, impartiality, accuracy.” Reed v. 304 Or ments conciseness (1988). Readability” designated has been 748 Formula for P2d 542 “Flesch 410, Roberts, 420, Readability. Secretary v. 309 Or Deras of State as Standard of 259-260, (1990). Roberts, 250, (1990); P2d 1045 785 Deras v. 309 Or P2d 987 complies ORS 250.039. with does not raise whether the certified ballot Petitioner Moreover, considering parties propriety this court’s that have not addressed See or court. ORS of State this issue not raised either before when it was (5); 11.30(4)(a). 250.085(4) case. the issue this ORAP We will not address
Roberts,
Roberts,
supra;
649, 652,
Reed v.
304 Or
ORS components mandates three for a (1) title: a Caption which reasonably identifies the (2) measure’s subject; Question a plainly phrases which (3) purpose; measure’s chief a concise and impartial statem ent3 which summarizes the measure major and its effect. Roberts, supra, 420-421; Nelson v. 308 Or at Reed v. supra, 304 Or at If 652-653.4 a ballot title substantially com plies statutory standards, with these certify this court will 250.085(4). ballot title. ORS This is true even if this court were prefer petitioner’s proposed ballot title or one writ ten Teledyne Chang Paulus, court. Wah Petitioner claims that each of the parts three — — Caption, Question, and the substantially does not comply requirements with of ORS 250.035(1) because the ballot title does not mention ini- tiative measure’s chief subject, purpose effect, and major which he states is the “withdrawal of all tobacco tax revenue from the state General Fund.”
Petitioner contends that currently the state General Fund percent receives 79 of the revenue generated by the cigarette tax percent generated and 100 of the revenue by the 250.035(1) provides: any
“The ballot title of measure to be initiated or referred shall consist of: “(a) caption reasonably A of not more than 10 which words identifies the measure; subject of the “(b) question plainly phrases A of not more than 20 words which response question of the measure so that an affirmative to the corresponds measure; an affirmative vote on the “(c) impartial A concise and not statement of more than 85 words sum- marizing major the measure and its effect.” 3Hereinafter, “Summary” required the term will be used to refer to the 85 words *4 Roberts, supra, 250.035(1)(c). See Deras v. ORS 418 n 6. at 250.035(2) provides resemble, ORS that “the ballot title shall not so far as probably confusion, any previously to create title filed for a measure at to be submitted petitioner statutory that election.” At no time has contended that this mandate is not We, therefore, proceeding satisfied. need not concern ourselves in this with the requirements 250.035(2). 250.085(5). See of ORS bien- the 1991-1993 during that products; tax on other reve- tobacco tax Fund would receive state General nium the proposed measure rate if the percent of the current nues at 50 July electorate; beginning that approved by were cigarette all proposed measure would withdraw General Fund from the state tobacco tax revenues other also Fund.” “Oregon Health Petitioner it to new dedicate tax and tobacco of all that the withdrawal contends Fund and the dedication from the state General revenues have Health Fund would Oregon revenues to a new such tax should profound consequences fiscal of which voters informed, title is challenged but nowhere in the ballot be that General any impact hint of the revenue state there Fund.5 voters, measure, approved
The if initiative any cigarette not result in the withdrawal or removal of would Fund, peti- as or tobacco revenues from the state General by cigarette states. generated tioner Revenues however, products eventually would, depos- taxes no be longer Rather, ited in the state General Fund. such tax revenues deposit “Oregon would be dedicated for in a new Health prevention Fund” to fund smoking-and-tobacco-use programs and other health services. Nowhere in the ballot title is consequence fiscal to the state Fund General mentioned. issue, therefore, and, so, in
The is if where whether should made that which mention be revenues deposited are now in the state General Fund are to be dedi- follow, cated elsewhere. For the that hold that the reasons we fiscal the state Fund proposed measure’s effect on meas- Summary component should be mentioned in the of the title. ure’s ballot
THE BALLOT TITLE’S CAPTION CORRECTLY THE OF IDENTIFIES SUBJECT
THE MEASURE proposed initiative is an of the measure dispute portion There is no a substantial from See, e.g., currently deposited products in the state General Fund. other tobacco taxes petitioner position, dollar submitted estimates of the ORS 323.455. In his deposited longer amounts that would no in the state General Fund. ultimately certify will financial State an estimate of the See ORS 250.125. pamphlet voters’ and on the ballot.
504 cigarette products
increase in and a taxes dedica- (1) tion of from revenues derived such taxes to programs fund prevent (2) to and the smoking products, use of tobacco and programs. Caption health The pre- pared by substantially the General complies with the requirement 250.035(l)(a) of reasonably that it identify the measure’s in not more 10 than words. QUESTION
THE BALLOT TITLE’S
PLAINLY PHRASES THE
MEASURE’S CHIEF PURPOSE
A measure’s
the
purpose
chief
is
most
aim
significant
or end which the
is designed
bring
to
Reed
about.
Roberts, supra,
cigarettes programs, given and other tobacco must be to youth, especially prevent stop Cigarette to and use. and tobacco tobacco use significant using products has a adverse on the of those health and [of] exposed products those to tobacco smoke. Revenues derived from taxes tobacco on applied prevent dependency improve availability shall be to treat and and quality throughout Oregon.” of health services Initiative,” prepared sponsors, In “An Annotation of the the measure’s it is stated: purpose respond way initiative in “The of this is to an effective to the problems by smoking products Oregon. caused the use of tobacco in Revenues cigarettes products raised the sale of and other tobacco from are dedicated to use, preventing treating funding public dependency tobacco nicotine services.” Sections 2 Annotation summarizes and 3 the measure as follows: 1.4$ 2.0$ cigarettes per cigarette 2. “Section The tax is raised from cigarette. annually price adjusted This rate increases in consumer is to reflect index. products cigarettes 3. other “Section The tax on tobacco than is increased from 35% to 50%.” an chief That purpose.8 the measure’s focus taxes and the dedi- products tobacco increase fund smoking- derived from such taxes of revenues cation health serv- and other programs prevention and-tobacco-use ices. stated, pro- under it is true that previously
As from revenues derived posed measure eventually deposited no in the longer be products taxes would Fund, is not the aim or end which the but that state Rather, deposit designed bring measure is about. in a other products tax revenues cigarette and tobacco consequence bring- is a fiscal than the state General Fund or end. ing about the measure’s aim *6 Question component The the ballot substan- phrase the complies plainly the that it tially requirement with words, an measure’s chief in not more than 20 so that Question corresponds to an response affirmative affirmative vote on the measure.
THE BALLOT TITLE’S SUMMARY DOES SUBSTANTIALLY COMPLY WITH NOT REQUIREMENTS
STATUTORY Summary substantially The com- ballot title’s must ply requirement concisely impartially with the that it 250.035(1); major summarize its effect. ORS 250.085(4). major The effect of the initiative meas- i.e., purpose, ure is same as measure’s cigarette products an increase in and tobacco taxes and smoking-and-tobacco- dedication of such tax revenues to fund Summary prevention programs. use General’s The requirement concisely that it substantially complies with the impartially major the measure’s effect. summarize 250.035(1)(c) But that does end our review. ORS not concisely impartially summa requires Summary that the effect, measure, major rize the as well as its to the extent ques permitted by the 85-word limitation. The more difficult summary relates of the measure. Is Summary’s tion to the information, any any, parties supplied nor do not court we have have concerning the in which was drafted. context the measure
Summary’s summary of the measure in “substantial com 250.035(1)(c) pliance” with ORS when it not does inform products voters that and tobacco tax reve eventually nues longer deposited would no Fund? We answer “No.”
“ ‘Substantial
compliance requires compliance in
respect
essential
necessary
matters
to assure every
”
objective
reasonable
Rogers
statute.’
687, 691,
(1986),
The diversion or redirection of monies from the state important General Fund is an consequence fiscal of the meas- ure, of which the electorate should be informed. Substantial *7 compliance 250.035(1)(c) with ORS requires mention of this important fiscal consequence Summary. in the ballot title’s court, therefore,
This modifies the Gen- eral’s ballot title’s to read: 28$ 40$ per
SUMMARY: tax Increases from to pack. increases, Annual inflation starting 1992. Increases tobacco distribution tax: 35% to 50% of price. go biennially million $25 wholesale of taxes to build plus $250 million Trust Health Fund. Remainder goes Oregon trust fund to interest Health Fund. Fund dis- state, counties, tributes 60% smoking-related to 40% to for programs. and pro- Dedicates taxes such tobacco to grams. Reduces General Fund revenues. title to conclusion, following certify we
In of State: TAXES TOBACCO CIGARETTE AND INCREASES SMOKING, HEALTH PROGRAMS TO FUND increased QUESTION: cigarette and tobacco taxes be Shall comity smoking-related and to fund state and dedicated programs? general health per cigarette tax 280 to 400 SUMMARY: Increases from increases, starting in
pack. cigarette tax Annual inflation to 50% of distribution tax: 35% 1992. Increases tobacco go biennially build taxes to price. $25 million of wholesale plus million Health Trust Fund. Remainder $250 Fund dis- goes Oregon Health Fund. fund interest to trust counties, state, smoking-related 40% to for tributes 60% pro- programs. to such and health Dedicates taxes grams. Reduces General Fund revenues.
Ballot title certified as modified. 11.30(10)
Pursuant notwithstanding ORAP 9.25(1), this title effective ORAP certified ballot will become appellate when the issues. Court Admin- judgment State from judgment days shall issue the appellate istrator decision, date petition of this unless a for reconsideration physically both filed with received the Office date days State Court within seven of the Administrator timely stay A for will petition decision. reconsideration on appellate issuance of the until the court acts all judgment If timely petitions for the court denies the reconsideration. petition, appellate judgment shall issue the Administrator day for recon- judicial petition(s) next after denial sideration.
FADELEY, J., specially concurring.
I with agree majority the certified ballot must modified to inform the voters of initiative meas- ure’s tax revenues and on the state existing now uses on those which and relies programs. Among are the programs numerous state those corrections), education, justice system (including criminal aged. poor medical care effect, existing If the takes proposed measure full revenues of million biennium will be tobacco tax $126 *8 general from the state spec- diverted fund to the limited uses ified in the measure. tax gener- Additional revenues tax ated from increases the measure mandates are estimated to be much less half than as much as the loss to the general resulting fund from the diversion of tax existing reve- tax nues. The increase do replace general not the lost fund dollars. The increases are also dedicated to the limited specified uses in the measure.
This is by measure one of two initiated the same chief sponsor. measure, The other which involves revenues from taxes on is beverages, companion alcoholic of a Aughenbaugh review decided in repeats pro- That measure the same — cedure diverting existing general revenues, fund generating some, new revenues increasing “tax” rates dedi- then cating both the old revenue new streams to the limited specified uses in the initiative.
If approved by these two measures are people, combined loss of relied upon general revenues now fund would, example, equal percent current State Department budget. Corrections The amount of the loss general initiatives, fund two adopted, from the if is more than property all direct tax relief programs, including Owner Home relief, Deferral, and Renter Senior and Targeted Offsets for school the safety Office, districts in net. Legislative Fiscal Summary Corrected of Legislative Adopted Budget, 1989-91 1989). 11 (Aug. loss major portion this comes from the of existing diversion tobacco taxes. Caption Question modified ballot title do significant
not advise the general voter loss of fund revenue, let existing alone advise them that the diversion of funds general greater from the dollar amount only than from the tax increase. Instead the tax increase is mentioned. Summary
The modified ballot does advise people However, of a reduction in fund revenues. many Summary or most voters will not find the ballots, printed their nor there estimate of finan- on will be an printed cial those ballots. See ORS 254.175. But the effects Caption Question printed will be on the voter’s ballot. Id. Thus, though which, correct reference cursory under utterly in the will only appear opinion, will court’s of what this effectively advise voters fail have that informa- They should actually accomplish. would tion. *9 involves both diversion
The initiative measure an increase in tax fund and general revenues from the existing these combined The measure dedicates rates. terms general described
entirely programs, to unknown Caption related” or “health related.” only as “smoker purposes subjects. reflect these chief Question should dual Caption Question may reflect A ballot title’s Reed v. purposes subjects. or See (1988). Here, Caption the modified Question are silent on a chief or as measured significant proposal, the most fiscal of the initiative i.e., existing general the loss of tobacco tax revenues to the remains inadequate fund.1 I cannot what information for the voters. Hoomissen, J., joins special concurring
Van opinion. responsibility may accept thing 1 Acritic should to show how the criticized spirit, suggest:
better done. In that I FUND; CAPTION: DIVERTS TOBACCO TAXES FROM GENERAL INCREASES TAXES general Shall QUESTION: and tobacco taxes be diverted from programs? and increased to fund new smoker and