Huss v. Kulongoski

GILLETTE, J.

This is an original proceeding to review a ballot title for a proposed initiative measure that would amend the Oregon Constitution. Petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General’s draft ballot title, pursuant to ORS 250.067(1). Accordingly, he is entitled to seek a different title in this court, pursuant to ORS 250.085(2).

The proposed measure would add a new Article to the Oregon Constitution. That Article would replace Oregon’s present system of personal and corporate income and property taxes, fees, assessments, and other revenue-generating mechanisms with what the proposed measure styles as a “Single Tax.” Various provisions in the proposed new Article define the “Single Tax,” describe the way in which it is to be collected, prescribe the formula under which it is to be distributed to various taxing entities, and even set out an emergency procedure under which the tax temporarily may be augmented. The Attorney General certified the following ballot title for the measure:

“AMENDS CONSTITUTION: REPLACES CURRENT TAXES WITH 2 PERCENT ‘SINGLE TAX’ ON TRANSACTIONS

“RESULT OF YES’ VOTE: Yes’ vote eliminates current state and local taxes; establishes 2 percent tax on most transactions.

“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current state, local taxes; does not adopt 2 percent tax on transactions.

“SUMMARY: Amends Constitution. Eliminates all state, local taxes, fees, assessments, bonding authority, with listed exceptions. Substitutes 2 percent tax on consideration for sales, loans, other exchanges of materials, goods, services, rentals, labor, real estate, personal property or things of value. Exempts financial institution deposits and withdrawals, loan principal payments, gifts, certain noncommercial transactions, sales of securities, pensions, insurance benefits, sales of goods and services for use outside state. Requires 60 percent vote to increase tax, adopt local tax, repeal or amend provision. Provides for revenue distribution.”

Petitioner, who is the chief sponsor of the proposed measure, challenges all parts of the Attorney General’s ballot title as inadequate. We address each part of the ballot title in turn.

ORS 250.035(2)(a) requires a ballot title for a state measure to contain “[a] caption of not more than 10 words that reasonably identifies the subject matter of the state measure.” This court reviews challenges to ballot titles only to decide whether the Attorney General’s certified ballot title is in “substantial compliance” with the statutory requirements. ORS 250.085(5).

Petitioner contends that the certified Caption is misleading and that it should read “Amends Constitution: Replaces All Current Taxes With 2 Percent Gross Receipts Tax.”

All of petitioner’s arguments turn on his insistence that the Attorney General erred in refusing to call the “Single Tax” a “gross receipts tax.”¹ It may be that, if petitioner’s contention were well taken, it would demonstrate that the Attorney General’s ballot title does not comply substantially with the requirements of law. We need not decide that question, however, because petitioner’s argument is not well taken. The problems with petitioner’s suggestion are that it ignores the central term of the proposed measure and that it would be misleading, because the proposed measure imposes a tax that is different in some respects from a “gross receipts tax.”

First, the proposed measure explicitly refers to the taxation scheme in the measure as the “Single Tax.” Section 2 of the proposed measure provides:

“One form of tax, known as the Single Tax, shall be the primary means of generating state and local government revenue, and no * * * other revenue generating mechanism shall exist in the state, except as otherwise expressly provided by this article.”

Notwithstanding the centrality of the term, “Single Tax,” to the proposed measure, petitioner now proposes to substitute for that term another term — “gross receipts tax” — that does not appear haec verba anywhere in the proposed measure.

It is true, as appears to be implicit in petitioner’s argument, that a slavish devotion by the Attorney General to the words of the measure is not appropriate, at least where use of those words would do nothing to advance the understanding of the voters as to the purpose of the measure. But there is no reason to assume that using the words of the measure would mislead the voters in this case. The term, “Single Tax,” which is sui generis, is fleshed out in the rest of the ballot title, enabling a voter to know what idea is central to the proposed measure.

On the other hand, and as petitioner himself acknowledges, the term that petitioner prefers — “gross receipts tax” — while defined by a statute, is not commonly understood. Use of that term, particularly in the Caption, has a significant potential to mislead.

We say “mislead,” because it appears to us that describing what would be created by the proposed measure simply as a “gross receipts tax” would not be completely accurate. A “gross receipts tax” is defined by section 6 of Article II of the Multistate Tax Compact² as follows:

“ ‘Gross receipts tax’ means a tax, other than a sales tax, which is imposed on or measured by the gross volume of business, in terms of gross receipts or in other terms, and in the determination of which no deduction is allowed which would constitute the tax an income tax.”

One part of the proposed measure before us does not fit within the foregoing definition: The proposed measure would tax an employer for wages paid to an employee. That is an exception to the general approach of the proposed measure that requires the seller of goods or services to pay the tax on the gross volume of consideration received. That is not, under the definition that petitioner himself espouses, a “gross receipts tax,” and to characterize it as such would be misleading.

In sum, we hold that the use by the Attorney General of the term “Single Tax” in the Caption substantially complies with the requirements of ORS 250.035(2)(a). The Attorney General did not err in choosing to use that actual term from the measure in the Caption. We turn to a discussion of the ‘Yes” and “No” Result Statements.

ORS 250.035(2)(b) and (c) require each ballot title for a proposed measure to contain simple and understandable statements of not more than 15 words each that describe the potential result if the proposed measure is approved and if it is rejected. ORS 250.035(3) requires, to the extent practicable, that the language of the Statements parallel each other. Again, this court reviews the Statements only for substantial compliance with those statutory provisions.

Petitioner’s contention that the Statements should be altered is based on the same arguments that he advanced against the Attorney General’s Caption. We reject them for the reasons already set out.

We hold that the Attorney General’s certified ‘Yes” and “No” Result Statements substantially comply with the requirements of ORS 250.035(2)(b) and (c), and with ORS 250.035(3).

ORS 250.035(2)(d) provides that a ballot title must contain “[a] concise and impartial statement of not more than 85 words summarizing the measure and its major effect.” Petitioner makes a number of editorial suggestions in order to change the Summary to describe the tax to be imposed by the proposed measure as a “gross receipts tax” and then to add descriptive terms distinguishing a “gross receipts tax” from a “sales tax.” We reject petitioner’s suggested changes in the Summary for one reason: We are not persuaded by his argument that the term “gross receipts tax” is one that must be used in this ballot title. Without that premise, the balance of petitioner’s argument falls.

We hold that, with respect to the argument presented, the certified Summary reasonably summarizes the major effects of the proposed measure. Consequently, it substantially complies with the requirements of ORS 250.035(2)(d).

We certify the Attorney General’s ballot title to the Secretary of State without modification.³

Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10).

1 Intervenor’s brief supports petitioner’s position.

2 The Multistate Tax Compact has been adopted by the Oregon legislature. ORS 305.655. We therefore accept, for the purposes of discussion, petitioner’s adoption of the definitions from that Act as pertinent to our decision in the present case.

3 The dissent asserts that we are certifying an “inaccurate” ballot title. As is pertinent here, the scope of our review of a ballot title is limited by ORS 250.085(6) to arguments presented to the Secretary of State. The arguments that the dissent find persuasive were not presented to the Secretary of State; we are foreclosed from considering them.