Parrish v. Rosenblum

• Decision Date: 25 October 2017
• Docket Number: SC S065300
• Citation: 403 P.3d 786,362 Or. 96
• Parties: Julie PARRISH, Sal Esquivel, and Cedric Hayden, Petitioners, v. Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.
• Court: Oregon Supreme Court

362 Or. 96

403 P.3d 786

Julie PARRISH, Sal Esquivel, and Cedric Hayden, Petitioners,

v.Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.

SC S065300

Supreme Court of Oregon, En Banc.

October 25, 2017

Eric C. Winters, Wilsonville, filed the petition and reply for petitioners.

Carson L. Whitehead, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter P.C., Portland, filed the memorandum for amicus curiae Melissa Unger.

BALMER, C. J.

Petitioners seek review of the ballot title prepared for Referendum Petition (R.P.) 301 (2018). They contend that the caption, the "yes" and "no" result statements, and the summary do not comply with requirements set out in ORS 250.035(2). We review the ballot title to determine whether it substantially complies with those requirements. SeeSenate Bill (S.B.) 229 (2017), § 58(4) (setting out that standard).¹ For the reasons explained below, we agree with some of petitioners' contentions, but disagree with others. We conclude that each part of the ballot title requires modification, and we refer it to the Attorney General for that purpose. See id.at § 58(6) (explaining modification referral process).

I. BACKGROUND

We begin by providing some background and a summary of R.P. 301. During the 2017 session, the legislature passed House Bill (H.B.) 2391.² Among other things, that bill created a new Health System Fund, which would pay the cost of administering a new Oregon Reinsurance Program, provide additional funding for medical assistance and health services to low-income individuals and families under ORS chapter 414, and make other payments. H.B. 2391, § 2; ORS ch. 414.³ The bill then imposed temporary, two-year assessments on insurance premiums or premium equivalents received by insurers (section 5(2)), managed care organizations (section 9(2)), and the Public Employees' Benefit Board (section 3(2)), that would be paid into the State Treasury and credited to the fund. See id.at §§ 3–5, 7, 11–13 (imposing assessments, directing payments and credits, and establishing timelines).⁴ The bill further provided, in section 8(2), that insurers may increase their premium rates by 1.5 percent on policies subject to the temporary assessment on insurers. Also, in section 27(2)(2), the bill imposed a temporary assessment on the net revenue of certain hospitals, to be paid to the Oregon Health Authority. Id.at §§ 27–28 (imposing assessment, directing payment, and setting out related amendments); § 29 (removing assessment at later date); §§ 44, 51 (setting out operative and effective dates).⁵ The Governor signed the bill on July 3, 2017, and it was scheduled to go into effect, with some delayed operative dates, on October 6, 2017.

Two days after the Governor signed H.B. 2391, petitioners filed with the Secretary of State a referendum petition, which the Secretary numbered as R.P. 301 and which is set out as an Appendix to this opinion. R.P. 301 would refer to the people for a vote certain sections of H.B. 2391—sections 3(2) and (4); 5(2) and (4); 9(2) and (5); and 27(2)(2)—that impose the temporary assessments described above, as well as section 8(2), which permits insurers to increase their premium rates.⁶ See generally Or. Const., Art. IV, § 1 (3)(a)-(b) (describing people's referendum power and process). The timelines for a potential referendum vote, and the related ballot title process, are governed by a different bill enacted during the 2017 session, S.B. 229. That bill provides that, if any part or all of H.B. 2391 is referred to the people, then a special election will be held on January 23, 2018. S.B. 229, § 55(1)(a)(A). Under applicable constitutional provisions, petitioners were required to gather and submit a sufficient number of signatures before October 6. See Or. Const., Art. IV, § 1 (3)(a) (referendum power may be exercised as to acts not effective earlier than 90 days after end of session); § 1(4)(a) (setting out 30-day signature verification timeline for Secretary of State). The Secretary of State has confirmed that petitioners submitted a sufficient number of valid signatures and that R.P. 301 therefore will be on the ballot at a special election in January, as Measure 101 (2018).⁷

After R.P. 301 was filed, a joint legislative committee prepared a ballot title and filed it with the Secretary of State. SeeS.B. 229, § 55(3) (establishing process). The ordinary word limits for ballot titles do not apply; however, the content requirements for each element of a ballot title for a state measure—set out in ORS 250.035(2) and discussed further below—do apply. Id.at §§ 55(3), 58(1). We review the ballot title for substantial compliance with those requirements. Id.at § 58(4). If we determine that modification is required, then we may refer the ballot title to the Attorney General for modification. Id.at § 58(6).

The joint legislative committee prepared the following ballot title for R.P. 301:

"PROVIDES FUNDS CURRENTLY BUDGETED TO PAY FOR HEALTH CARE FOR LOW-INCOME INDIVIDUALS AND FAMILIES AND FOR STABILIZING HEALTH INSURANCE PREMIUMS, USING TEMPORARY ASSESSMENTS ON INSURANCE COMPANIES, SOME HOSPITALS AND OTHER PROVIDERS OF HEALTH INSURANCE OR HEALTH CARE COVERAGE.

"RESULT OF 'YES' VOTE: 'Yes' vote provides funds that are currently budgeted to pay for health care for low-income individuals and families and individuals with disabilities and to stabilize premiums charged by insurance companies for health insurance purchased by individuals and families. Approves temporary assessments on insurance companies, some hospitals, the Public Employees' Benefit Board and managed care organizations to provide the funds. Specifies that insurance companies may not increase rates on health insurance premiums by more than 1.5 percent as a result of the assessment. Provides that the hospital assessment may not begin without the approval of a federal agency.

"RESULT OF 'NO' VOTE: 'No' vote underfunds budgeted costs for providing health care to low-income individuals and families and individuals with disabilities and for stabilizing premiums charged by insurance companies for health insurance purchased by individuals and families. Rejects temporary assessments on insurance companies, the Public Employees' Benefit Board and managed care organizations. Delays until the later of January 1, 2018, or the date of approval by a federal agency, the temporary assessment on some hospitals.

"SUMMARY: This measure asks voters to approve or reject five parts of House Bill 2391, enacted by the 2017 Oregon Legislature to address certain health care funding issues. House Bill 2391 provided funding to pay costs for providing health care to low-income adults, children, families and individuals with disabilities, and to stabilize premiums charged by insurance companies for health insurance purchased by individuals and families. House Bill 2391 provided the funding through a 1.5 percent assessment on premiums and premium equivalents (defined) of health insurance companies, the Public Employees' Benefit Board and managed care organizations for a two-year period, and an additional 0.7 percent assessment on the net revenue of some hospitals that begins on October 6, 2017, and ends on July 1, 2019. This measure asks voters to approve or reject the assessments on insurance companies, the Public Employees' Benefit Board and managed care organizations and only the portion of the hospital assessment that is in effect from October 6, 2017, through the later of January 1, 2018, or the date a federal agency approves other changes to the assessment made by House Bill 2391. The measure does not ask voters to approve or reject the portions of the hospital assessment that are in effect beginning on the later of January 1, 2018, or the date of federal agency approval."

Petitioners object to all parts of the ballot title. In response, the Attorney General and amicusUnger contend that the ballot title substantially complies with statutory requirements. We address their contentions below.

II. ANALYSIS

A. Caption

We begin with the caption, which must "reasonably identif[y] the subject matter" of R.P. 301. ORS 250.035(2)(a). Petitioners contend that the caption fails to satisfy that standard in several ways. First, the caption does not reasonably identify the temporary assessments imposed in sections 3(2), 5(2), 9(2), and 27(2)(2) of H.B. 2391 (now contained in R.P. 301), nor the authority for insurers to increase premiums in section 8(2).

Second, the caption is a long, run-on sentence that obscures those "direct subjects" of R.P. 301 by inappropriately magnifying and focusing on "secondary and speculative" effects—that is, programs that "maybe funded" under H.B. 2391 (emphasis petitioners'). Third, to more accurately describe the temporary assessments, the caption should use the word "tax." Petitioners contend that the caption is "fundamentally flawed and should be discarded." The Attorney General and amicusUnger respond that the caption appropriately explains that the revenue from the temporary assessments will fund certain programs budgeted in H.B. 2391, and they also disagree with petitioners' remaining contentions.

The "subject matter" of a proposed measure, ORS 250.035(2)(a), refers to its "actual major effect" or, "if the measure has more than one major effect, all such effects" within any applicable word limit. Whitsett v. Kroger , 348 Or. 243, 247, 230 P.3d 545 (2010). "To determine the subject matter of a proposed measure, we first examine its words and the changes, if any, that the proposed measure would enact in the context of existing law." Kain/Waller v. Myers , 337 Or. 36, 41, 93 P.3d 62 (2004). As explained, the ballot title for R.P. 301 has no applicable word limit, but its caption nonetheless must state or describe the subject matter...