Wilson/Fitz v. Rosenblum

226 December 14, 2017 No. 64
IN THE SUPREME COURT OF THE
STATE OF OREGON
J. L. WILSON
and Justen A. Rainey,
Petitioners,
v.
Ellen F. ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
S065263 (Control)
Mike FITZ
Petitioner,
v.
Ellen F. ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
S065264
En Banc
On petition to review ballot title filed September 11, 2017;
considered and under advisement on November 16, 2017.
Gregory A. Chaimov and Tim Cunningham, Davis Wright
Tremaine LLP, Portland, filed the petition and reply memo-
randum on behalf of petitioners Wilson and Rainey.
Nathan R. Rietmann, Rietmann & Rietmann, LLP, Salem,
filed the reply memorandum on behalf of petitioner Fitz.
Rolf C. Moan, Assistant Attorney General, Salem, filed
the answering memorandum on behalf of respondent. Also
on the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
LANDAU, J.
The ballot title is referred to the Attorney General for
modification.
Cite as 362 Or 226 (2017) 227
Petitioner challenged the Attorney General’s certified ballot title for Initiative
Petition 21, which increases taxes on cigarettes. Held: Because IP 21 did not
include the magnitude of the cigarette tax increase of 10 cents per cigarette, or
$2.00 per 20-cigarette pack, in the caption or “yes” vote result statement, the
ballot title did not convey the major effect of the ballot measure.
The ballot title is referred to the Attorney General for modification.
228 Wilson/Fitz v. Rosenblum
LANDAU, J.
Petitioners challenge the legal sufficiency of the
Attorney General’s certified ballot title for Initiative Petition
21 (2018). Our task in reviewing ballot title challenges is
to determine whether the ballot title substantially complies
with statutory requirements. See ORS 250.085(5) (stating
standard of review). In this case, we conclude that, in two
respects, the Attorney General’s certified ballot title does
not substantially comply with the law. We therefore refer it
to the Attorney General for modification.
Current Oregon law imposes a tax on the distri-
bution of cigarettes and tobacco products in the state. ORS
323.030. The tax is collected from distributors before retailers
purchase the products and sell them to consumers.
In the case of cigarettes, the law requires distribu-
tors to pay the tax at a rate specified in mills (thousandths
of a dollar) per cigarette. Id. The Oregon Department of
Revenue furnishes tax stamps to distributors as proof of
payment of the tax. ORS 323.160. The tax stamps then must
be affixed to each package of cigarettes before distribution.
Id. Federal law requires cigarettes to be sold in packages of
no fewer than 20, 21 CFR § 1140.16(b) (2010), and indeed
cigarettes are commonly sold in packages, or “packs,” of 20.
The total tax rate for cigarettes currently is 66.5 mills per
cigarette, or $1.33 per pack. ORS 323.030, ORS 323.031.
In the case of cigars or other tobacco products, the
tax is imposed differently. For cigars, the tax is 65 percent
of the wholesale price, but it is capped at 50 cents per cigar.
ORS 323.505(2)(a). For other tobacco products, the tax is
either a similar percentage of the wholesale price or an
amount by weight of the product. ORS 323.505(2)(b), (c).
IP 21, if enacted, would alter the foregoing tax
scheme in four ways. First, it would increase the tax on cig-
arettes by 100 mills per cigarette, or $2.00 per pack. IP 21
§§ 1, 2. Second, it would eliminate the 50-cent cap on cigar
taxes. Id. at § 4. Third, it would require that all moneys
received from the new cigarette tax be first deposited with
the state treasurer and, after the payment of any refunds for
overpayments, be credited to the Public Health Account, “to
Cite as 362 Or 226 (2017) 229
be used for the funding of local public health authorities in
all areas of the state for public health programs.” Id. at § 3.
Fourth, certain sections of the measure—specifically, those
amending the cigarette tax and the use of cigarette-tax
revenues—would apply retroactively to the distribution of
cigarettes and tobacco products on or after January 1, 2018.
Id. at § 5.
The Attorney General certified the following ballot
title for IP 21:
“Increases cigarette tax; resulting
revenue to fund public health programs;
removes cap on cigar tax.
“Result of ‘Yes’ Vote:  ‘Yes’ vote increases tax on cig-
arettes by 10 cents per cigarette; resulting revenue to fund
public health programs. Removes 50 cent cap on cigar tax.
“Result of ‘No’ Vote:  ‘No’ vote retains tax of 6.65
cents per cigarette ($1.33 per pack of 20); retains cigar tax
cap of 50 cents per cigar.
“Summary:  Current law imposes a tax of 6.65 cents
per cigarette ($1.33 per pack of 20). Of that tax, 3/4 of a
cent per cigarette supports community mental-health-
program services for those with mental/emotional distur-
bances, those receiving psychiatric care in hospitals, those
receiving services for drug, alcohol abuse/dependency. Of
remainder, 89.65% goes to general fund, 10.35% go to cit-
ies, counties, Department of Transportation. Current law
also imposes tax of 65% of wholesale cigar price, capped
at 50 cents per cigar. Proposed measure increases tax by
10 cents per cigarette (raising tax to $3.33 per pack of 20)
for sales on or after January 1, 2018. Resulting revenue to
fund public health programs. Eliminates 50 cent cigar tax
cap. Other provisions.
Petitioners Wilson and Rainey challenge the cap-
tion and the “yes” vote result statement. Petitioner Fitz chal-
lenges the caption, the “yes” and “no” vote result statements,
and the summary.
We begin with arguments about the caption. ORS
250.035(2)(a) provides that a ballot title must contain “[a]
caption of not more than 15 words that reasonably identifies
the subject matter of the state measure.” A caption satisfies
230 Wilson/Fitz v. Rosenblum
that standard if it describes the “actual major effect” of the
measure or, if there is more than one major effect, all the
major effects that can be described within the word limit.
Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011).
Petitioners Wilson and Rainey contend that the
caption fails to comport with that standard in that it refers
only to the fact that IP 21 would “increase” cigarette taxa-
tion, without stating the magnitude of that increase. The
Attorney General responds that stating that IP 21 would
“increase” the cigarette tax “accurately describes its effect.”
Whether a reference to a specific quantity or mag-
nitude in a caption is required will depend on the nature of
the measure and the complexity of the underlying law. In
Straube v. Myers, 340 Or 253, 259-60, 132 P3d 658 (2006),
for example, this court concluded that a caption stating that
a measure would have the effect of “raising” taxes substan-
tially complied with statutory requirements because “the
tax increases set out in the measure are complex and thus
difficult to compress accurately” to fit the word limit imposed
by law.
In that regard, we note that, in other cases, this
court has approved ballot titles concerning proposed
increases in cigarette taxes that did spell out the magni-
tude of the increase. See, e.g., Girard/Edelman v. Myers, 334
Or 114, 116, 45 P3d 934 (2002) (“Increases cigarette tax 60
cents per pack”). There appears to be nothing so complex
about the tax measure at issue in IP 21 that the magnitude
of the increase in the cigarette tax could not be specified
without running afoul of word limits.
Moreover—and more important—that a caption
is technically correct does not necessarily mean it accu-
rately conveys the major effect of a measure. See Parrish v.
Rosenblum, 362 Or 96, 104, 403 P3d 786 (2017) (depending
on how a ballot title caption is framed, otherwise accurate
information has the potential to be misleading). That is cer-
tainly true when material facts are omitted, and magnitude
can be such a material fact. For example, saying that a car
has “a number of miles on it” may be accurate, but that does
not accurately disclose the true state of the vehicle if the
Cite as 362 Or 226 (2017) 231
number happens to be 500,000. In this case, although it is
accurate to say that enactment of IP 21 would “increase” cig-
arette taxes, that bare statement does not begin to convey
the fact that its major effect would be to increase the tax by
a truly significant amount—more than 150 percent.1
In a related vein, petitioners Wilson and Rainey,
along with petitioner Fitz, contend that the caption’s refer-
ence to the amount of the tax increase should be expressed
in terms of an amount per pack, not an amount per ciga-
rette. They note that cigarettes are sold in packs of 20, not
individually. They also observe that the legislature, the
chief petitioners, and the media commonly refer to the ciga-
rette tax as a tax “per pack.” The Attorney General responds
that, “although cigarettes may be most commonly sold in
packs of 20, nothing in current law * * * requires cigarette
sellers to do [so].” Moreover, the Attorney General argues,
the measure itself states the tax increase per cigarette, not
per pack.
It is true that, strictly speaking, IP 21 refers to a
tax increase per cigarette. But parroting the precise words
of a measure is not always adequate to communicate its
major effect. In Peterson v. Myers (S49308), 334 Or 48, 44
P3d 586 (2002), for instance, the ballot measure at issue
would have imposed a limit on the number of years individ-
uals could serve in various judicial offices. The ballot title
caption described the measure as imposing “term limits”
for those judicial offices. The petitioners who challenged the
caption argued that it was not correct, in that the measure
imposed limits on the maximum number of years a per-
son could serve, not a limit on the number of terms. This
court rejected the argument, explaining that “the phrase
‘term limits’ is one of common parlance that voters readily
will understand to indicate that the proposed measure, if
adopted, will set a durational limit” on service in a judicial
office. Id. at 52.
1
That the magnitude of the proposed increase is material is borne out by
media coverage about IP 21. E.g., Gordon R. Friedman, Proposed ballot mea-
sure would increase cigarette taxes $2 a pack, The Oregonian (April 26, 2017),
http://www.oregonlive.com/politics/index.ssf/2017/04/new_ballot_measure_
would_incea.html; Proposed ballot measure would boost Oregon cigarette tax by
$2, KATU-TV (April 26, 2017), http://katu.com/news/politics/proposed-ballot-
measure-would-boost-oregon-cigarette-tax-by-2.
232 Wilson/Fitz v. Rosenblum
So also in this case, describing the proposed ciga-
rette tax increase on a per-pack basis conforms to common
parlance. Indeed, as we have noted, cigarettes may not
lawfully be sold in less than packs of 20. In that regard, it
bears noting that other provisions of the Oregon statutes
pertaining to cigarette taxation refer to affixing proof of
payment of the tax on each “package.” ORS 323.160. And
the Department of Revenue’s own website summarizing
the state’s cigarette tax laws states that “Oregon’s ciga-
rette tax rate is $1.32 per stamp for a pack of 20 cigarettes.”
http://www.oregon.gov/DOR/programs/businesses/Pages/
cigarette-overview.aspx (accessed Dec 6, 2017).
Petitioners Wilson, Rainey, and Fitz also argue
that the caption is deficient in that it fails to state that IP
21 would apply retroactively. Citing this court’s decision in
Kain v. Myers (S49089), 333 Or 446, 41 P3d 416 (2002), they
argue that retroactivity of a measure is an actual, major
effect and that it would be easy for the caption simply to
state that the measure “applies retroactively.” The Attorney
General replies that Kain is distinguishable and that, given
the limited word-count permitted in a ballot title caption,
retroactivity is not a sufficiently significant effect to war-
rant displacing other matters currently in the caption.
We agree with the Attorney General. Petitioners
are mistaken that conveying the retroactive effect of IP 21
would be as simple as adding the words “applies retroac-
tively.” The fact is that the entire measure would not apply
retroactively. Only parts of it would—specifically, the parts
that concern the increase in tobacco tax and the use of the
revenues that result. Other provisions concerning taxation
of cigars and other tobacco products would not be applied
retroactively. Under the circumstances, explaining accu-
rately which portions of the measure would apply retroac-
tively would be difficult to convey within the word-count
limits imposed by law. See Straube, 340 Or at 260 (“[T]he
tax increases set out in the measure are complex and thus
difficult to compress accurately to fit the 15-word limit.”).
For that reason, Kain is distinguishable. At issue in
that case was a proposed measure that would have required
redrafting of measures declared by the courts to be invalid
Cite as 362 Or 226 (2017) 233
on a variety of “technical” grounds. The measure would
have applied retroactively to “all court decisions” issued on
or after a specified date. The Attorney General’s certified
ballot title did not mention that the measure would apply
retroactively. On review before this court, the Attorney
General conceded that the caption needed to convey that the
measure would apply retroactively. This court accepted the
concession because the measure would apply to “all court
decisions” and was inextricably tied to all of the measure’s
other provisions. 333 Or at 448-49. That cannot be said of
the partial retroactivity of IP 21.
Petitioner Fitz further contends that the caption
does not substantially comply with the law in that it fails
to state that a major effect of the measure would be to raise
taxes on both cigarettes and cigars. The Attorney General
responds that, in fact, the measure would not necessarily
increase taxes on cigars.
The Attorney General is correct. If enacted, IP 21
might or might not result in an increase in tax on cigars. As
we have noted, if enacted, IP 21 would eliminate a $0.50 cap
on the taxation of cigars. It would not, however, alter the cur-
rent tax on cigars of 65 percent of the wholesale price. That
means that, unless the wholesale price of cigars exceeded a
certain price point ($0.78), there would be no increase in the
tax on those cigars at all.
Finally, petitioner Fitz argues that the caption is
misleading because it “fails to inform voters how revenue
from the cigar tax increase will be utilized.” Fitz goes fur-
ther and asserts that, as written, the caption is misleading
in that it states that revenue from the cigar tax increase will
be used to fund public health programs, when the majority
of those revenues will go to the General Fund. The Attorney
General observes in response that the caption mentions only
the increase in cigarette taxes and the uses of the revenue
raised from those taxes.
Again, the Attorney General has the better of the
argument. To begin with, petitioner Fitz’s argument is
predicated on the misapprehension that IP 21 would result
in a cigar-tax increase. As we have explained, that is not
234 Wilson/Fitz v. Rosenblum
necessarily the case. Aside from that, the measure specifies
how revenues derived from increasing the cigarette tax will
be used. It actually does not say anything about what hap-
pens to revenues derived from cigar taxes. Accordingly, the
caption is not misleading in mentioning only limitations on
the uses of revenue from cigarette taxes.
We turn to arguments about the legal sufficiency
of the “yes” and “no” vote result statements. ORS 250.035
(2)(b)-(c) requires a ballot title’s “yes” and “no” vote result
statements to describe the “result,” in no more than 25
words, of voting “yes” or “no” on a proposed measure.
Petitioners Wilson, Rainey, and Fitz all complain
that the “yes” vote result statement fails to comply with
that requirement because it does not identify the magnitude
of the cigarette tax increase and does not do so in terms
of an amount per pack of cigarettes. In light of our deci-
sion with respect to the caption, petitioners’ contentions are
well-taken.
Petitioner Fitz asserts that the “yes” vote result
statement should inform voters that the majority of the rev-
enue from the cigar tax increase is allocated to the General
Fund. Our disposition of petitioner’s similar argument with
respect to the caption suffices to explain why the same argu-
ment fails here.
Petitioners Wilson and Rainey argue that the “yes”
vote result statement should inform voters that the increase
in the cigarette tax is retroactive. Our discussion of the
argument with respect to the caption disposes of the same
contention with regard to the “yes” vote result statement.
That leaves the ballot title summary. ORS 250.035
(2)(d) requires a summary to provide a “concise and impar-
tial statement” of up to 125 words “summarizing the state
measure and its major effect.”
Petitioner Fitz argues that the summary is deficient
in “its failure to provide voters with sufficient information to
alert voters to the fact that IP 21 will reduce revenue for cit-
ies, counties, and others that rely on revenue from Oregon’s
existing cigarette tax.” The reduction in revenue, he argues,
will result from the fact that an increase in the price of
Cite as 362 Or 226 (2017) 235
cigarettes will decrease the demand for them. The Attorney
General responds that it is not appropriate for a summary
to engage in speculation about the possible economic conse-
quences of enacting a measure.
We agree with the Attorney General. A ballot title
must state an “actual effect” and may not “speculate about the
possible effects” of enactment. Nearman/Miller v. Rosenblum,
358 Or 818, 822, 371 P3d 1186 (2016). In this case, peti-
tioner Fitz speculates that increasing the price of cigarettes
will depress demand. But that is not necessarily the case,
and involves unproven assumptions about the price elastic-
ity of demand for cigarettes. We conclude that the summary
appropriately does not comment on the possible economic
effects of the proposed tax increase.
The ballot title is referred to the Attorney General
for modification.