Novick v. Myers, (SC S47228).
| Decision Date | 20 April 2000 |
| Docket Number | (SC S47228). |
| Citation | 330 Or. 254,998 P.2d 1262 |
| Parties | Steven NOVICK, Petitioner, v. Hardy MYERS, Attorney General, State of Oregon, Respondent. |
| Court | Oregon Supreme Court |
Steven Novick, Portland, pro se, argued the cause and filed the petition. Holly A. Vance, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before CARSON, Chief Justice, and GILLETTE, DURHAM, KULONGOSKI, and LEESON, Justices.1
This is a ballot title review proceeding under ORS 250.085(2). The Attorney General certified a ballot title, which we quote below, for Initiative Petition 113 (2000). Petitioner is an elector who timely submitted written comments regarding the Attorney General's draft ballot title and who, therefore, is entitled to seek review under ORS 250.085(2). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035 (1997).2 ORS 250.085(5). For the reasons that follow, we modify the Attorney General's ballot title.
If approved, Initiative Petition 113 would add the following provision to the Oregon Constitution:
For that proposed constitutional amendment, the Attorney General certified the following ballot title:
ORS 250.035 (1997) requires that a ballot title for an initiative amendment to the Oregon Constitution satisfy the following criteria, among others. The ballot title caption must contain not more than 10 words, not including the words "Amends Constitution," that "reasonably identif[y] the subject matter" of the proposed constitutional amendment. ORS 250.035(2)(a) (1997). The "yes" vote result statement must contain a "simple and understandable statement of not more than 15 words that describes the result" if the voters approve the proposed constitutional amendment. ORS 250.035(2)(b) (1997). The "no" vote result statement must contain a "simple and understandable statement of not more than 15 words that describes the result" if the voters reject the proposed constitutional amendment. ORS 250.035(2)(c) (1997). Finally, the summary must contain a "concise and impartial statement of not more than 85 words summarizing the measure and its major effect." ORS 250.035(2)(d) (1997).
Petitioner asserts that each segment of the Attorney General's ballot title suffers from a similar defect. He contends that the ballot title is misleading because it suggests, incorrectly, that the measure simply protects undefined voter-approved "tax breaks" for "lower class," "lower income," and "middle class" taxpayers.4 According to petitioner, the measure in fact protects tax breaks for those groups only if either of two other conditions also exists. First, the tax break measure also must purport to benefit "other" taxpayers, including but not limited to "upper" class taxpayers. Second, and in the alternative, a measure that limits or prohibits a tax break for a "class" of taxpayers, which petitioner defines to include but not be limited to "upper class" or "higher income" taxpayers, also must purport to supersede or invalidate a measure giving a tax break to "lower income and/or middle class taxpayers." Petitioner argues that the Attorney General's failure to disclose the fact that the measure effectively protects tax breaks for upper class taxpayers is a fundamental error. He contends that the Attorney General's ballot title fails to disclose the true subject of the measure because it incorrectly portrays the measure merely as a plebiscite on protecting tax breaks for lower and middle class taxpayers.
The Attorney General acknowledges that the measure protects voter approved tax breaks for lower and middle class taxpayers if they also benefit "other taxpayers." However, the Attorney General contends that the phrase "other taxpayers" in the measure is ambiguous in this context and does not justify singling out "upper class" taxpayers as the benefitted class, as petitioner suggests. The Attorney General also argues that other ambiguities in the measure, such as the meaning of the undefined phrase "tax break," and applicable statutory word limits prevent explaining in a neutral manner the beneficial effect of the measure on wealthier taxpayers.
This court recently observed that the drafter of a measure may not incorporate "politically inflated terms or phrases in the text of the measure in order to advance its passage." Earls v. Myers, 330 Or. 171, 999 P.2d 1134 (2000). We also have stated that the court will not hesitate to look beyond the words of a measure if the words obfuscate the subject, chief purpose, summary, or major effect of the measure. Bernard v. Keisling, 317 Or. 591, 596-97, 858 P.2d 1309 (1993).
With those principles in mind, we turn first to the question whether the Attorney General's caption adequately identifies the subject matter of the measure. We determine whether a caption states the subject matter of a proposed initiative measure by examining the text of the measure itself. Dirks v. Myers, 329 Or. 608, 614, 993 P.2d 808 (2000).
The measure contains two sentences. We analyze each sentence separately. The first sentence addresses a particular subject: a "voter approved tax break." The sentence purports to preserve or protect that kind of tax break, for the benefit of lower and middle class taxpayers, "because" the tax break also benefits other taxpayers. The dictionary provides the following pertinent definitions of the word "because"
"SINCE: for the reason that: on account of the cause that—used to introduce dependent clauses * * * on account of being * * *."
Webster's Third New Int'l Dictionary, 194 (unabridged ed. 1993). Those definitions indicate that, in this context, the word "because" means "for the reason that" or "on account of the cause that." The first sentence of the measure protects a tax break for lower and middle class taxpayers for the reason or on account of the cause that the tax break also benefits other taxpayers. The protection of tax breaks for lower and middle class taxpayers that that sentence describes takes effect only if, or on condition that, "the tax break also benefits other taxpayers."
That raises an important question: Who are the "other taxpayers" to whom the first sentence refers? Petitioner contends that that phrase refers to "upper class" taxpayers. The Attorney General acknowledges that that is a plausible reading, but argues that the phrase "other taxpayers" also could include other classes or subgroups of taxpayers that fall outside the "lower" and "middle" classes, such as "upper middle" class taxpayers.
Petitioner also argues that "other taxpayers" refers to higher income or wealthier taxpayers. We need not address that question here because the first sentence of the measure uses no explicit reference to a taxpayer's income or wealth. The second sentence of the measure does refer to an income-related classification, viz., "lower income and/or middle class taxpayers." (Emphasis added.) For purposes of our review of the ballot title, we focus on the references in the measure to a taxpayer's "class," because the measure consistently classifies taxpayers by their class in each of the sentences in the measure.
The phrase "other taxpayers," standing alone, is somewhat imprecise, but we can discern its meaning. The measure uses that phrase to identify, by descriptive contrast, those taxpayers who are not "lower class" or "middle class" taxpayers. In view of the three-part classification of taxpayers that the first sentence creates, the phrase "other taxpayers" refers to taxpayers who, in a comparative sense, fall into a higher class than those to whom the other more definite class labels apply. The foregoing analysis of the first sentence of the measure indicates that that sentence preserves a tax break that benefits lower and middle class taxpayers if the tax break also benefits upper class taxpayers.
The second sentence of the measure has a different function. The second sentence purports to protect the efficacy of one kind of measure, i.e., a measure that gives a tax break to lower income and/or middle class taxpayers, from invalidation by a measure that purports to limit or prohibit "certain tax breaks for a class of taxpayers."
Several features of the second sentence are significant. The term "measure" appears twice in the second sentence. However, no term or phrase qualifies or limits the term "measure" to include only a measure that the voters approve. Therefore, in contrast with the phrasing that appears in the first sentence of the measure, i...
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