Sager v. Keisling

Citation999 P.2d 1235,167 Or. App. 405
PartiesJames SAGER and John Chase, Appellants, v. Phil KEISLING and Walter Huss, Respondents.
Decision Date24 May 2000
CourtCourt of Appeals of Oregon

Margaret S. Olney, Portland, argued the cause and filed the brief for appellants.

David Schuman, Deputy Attorney General, argued the cause for respondent Phil Keisling. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Terrance McCauley, Estacada, argued the cause for respondent Walter Huss. On the brief was James E. Leuenberger, Portland.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

LANDAU, P.J.

In this case, plaintiffs contend that proposed initiative Measure 2000-12 contains two or more constitutional amendments that must be voted on separately under Article XVII, section 1, of the Oregon Constitution. In the alternative, they contend that the measure constitutes a revision of the constitution, which may not be effected by initiative. Secretary of State Phil Keisling (Secretary) concluded that the measure contains only one constitutional amendment and is not a constitutional revision. The trial court agreed. We conclude that Measure 2000-12 does contain two or more constitutional amendments and consequently do not address whether the measure amounts to a constitutional revision. We therefore reverse.

Measure 2000-12 is similar to the measure that we addressed in Dale v. Keisling, 167 Or.App. 394, 999 P.2d 1229, (2000), in that, if enacted, it would eliminate most existing forms of taxation and replace them with a single "gross receipts" tax. But it is not identical to the measure at issue in Dale, so we must describe its contents and its effects to determine independently the extent to which it contains more than two constitutional amendments.

Measure 2000-12 is organized into five "paragraphs." The first paragraph would amend the constitution by creating a new article, to be known as Article IX-A, which would consist of ten separate sections. The remaining paragraphs contain mostly administrative and implementation provisions. Section 1 provides:

"Revenue to be generated only as provided by this article. Single tax. The single tax, a gross receipts (flat) tax, shall be the primary means of generating state and local government and district revenue. No tax on real or personal property, income, fee, or other assessment, sales tax, or separately stated tax, or revenue generating mechanism shall exist in the state, except as otherwise expressly provided by this article."

(Boldface in original.) Section 2 sets the tax rate at "2.5% of gross volume of receipts generated and received." The section further provides that the rate may be increased only by a majority vote of the people, with a majority of the counties casting a majority vote. Section 3 sets forth certain exemptions from the gross receipts tax, including financial institution deposits, interest on deposits, contributions to nonprofit organizations, social security and retirement payments, loan principal payments, insurance claims benefits, and gifts. Section 4 describes who is required to pay the gross receipts tax. It specifies that landlords receiving rents, financial institutions and other lenders receiving interest and fees on loans or other services, insurance companies receiving premiums, brokers receiving commissions, businesses receiving consideration for goods or services, persons selling property, and barter participants all must pay the tax on the gross volume of consideration received. Section 5 provides that the enactment of the measure does not prevent revenue from being derived from, among other things, state or district user charges, tuition, federal revenue sharing, the common school fund, workers' compensation insurance, unemployment insurance, timber sales from public lands, fines, penalties, and forfeitures, provided that user charges do not exceed the cost of providing public services. Section 6 establishes a formula for the distribution of revenues generated by the gross receipts tax. It requires the State Treasurer to distribute revenue to the state itself and to any "district jurisdiction thereof" in an amount "equal to the average of the last three years revenue receipts received from taxes, fees, and assessments or other revenue mechanisms prohibited by this article," subject to permissible adjustments for changes in population, school enrollment, and the like. It further provides that the people may, upon a majority vote, dedicate a certain percentage of the revenues to highway, bridge, and road construction or dedicate a percentage of the revenues to reducing tuition for resident students at state universities. Section 6 also spells out what happens in the event of a revenue shortfall. In that event, the legislature would be permitted to refer to the people a tax rate increase. If the people do not approve the increase, Section 6 would require state and local legislative authorities to reduce their budgets to match revenues available,

"provided that police, fire protection, highways, schools, state security, and corrections are declared to be essential services that shall not be subject to budget reduction unless and until government revenue is less than the combined budgets of such services, in which case all budgets shall be proportionately reduced to match revenues."

Section 7 prohibits the state or any local authority from incurring any indebtedness. Section 8 provides that, when federal law requires the imposition of a state tax or fee as a condition for receiving a federal benefit, the legislature is authorized to refer the acceptance of the benefit and the imposition of the tax to the people, provided that the acceptance includes a memorial to Congress seeking a waiver or repeal of the condition. Section 9 authorizes the legislature to enact remedies for failure to pay the gross receipts tax. Section 10 provides that the new Article IX-A may be amended only by a vote of the people, subject to a double-majority requirement, that is, by a majority of the votes cast in a majority of the counties.

Chief petitioner Walter Huss filed Measure 2000-12 with the Secretary, who then issued a notice seeking public input to assist in the review of the measure for compliance with constitutional requirements. Plaintiffs submitted comments in which they suggested that the measure contained more than two constitutional amendments or amounted to a constitutional revision. The Secretary disagreed and approved the form of the measure.

Plaintiffs then initiated this action for judicial review of an order in other than a contested case, ORS 183.484, and of the Secretary's decision under ORS 246.910. They named as defendants the Secretary and Huss. Plaintiffs moved for summary judgment. The Secretary did likewise, and Huss joined the Secretary's motion. The trial court denied plaintiffs' motion, granted the Secretary's, and entered judgment declaring that Measure 2000-12 contains only one constitutional amendment and does not amount to a constitutional revision. On appeal, plaintiffs argue that the trial court erred in concluding that the measure contains only one constitutional amendment and that it does not amount to a constitutional revision.

As we explained in Dale, whether a proposed initiative measure contains more than two amendments to the constitution under Article XVII, section 1, is determined by reference to a three-part inquiry. First, we inquire whether the enactment of the measure would effect two or more "changes" to the constitution. Second, we ask whether those changes would be "substantive" in nature. Third, we ask whether those changes are "closely related." 167 Or.App. at 398-99, 999 P.2d at 1232-33.

We begin with whether the enactment of Measure 2000-12 would effect two or more changes to the constitution. The parties disagree about the scope of the changes that the enactment of the measure would require, but they agree that it would require multiple changes to the existing constitution.

If enacted, Measure 2000-12 would require at least the following...

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3 cases
  • Californians for an Open Primary v. McPherson, S126780.
    • United States
    • United States State Supreme Court (California)
    • 25 Mayo 2006
    ...Pa. 72, 731 A.2d 1261, 1269-1270 (Bergdoll); Dale v. Keisling (2000) 167 Or.App. 394, 999 P.2d 1229, 1232-1235; Sager v. Keisling (2000) 167 Or.App. 405, 999 P.2d 1235, 1238-1239; IWP, supra, 133 Idaho 55, 982 P.2d 358, 363; Pennsylvania Prison Soc. v. Commonwealth (2001) 565 Pa. 526, 776 A......
  • Dale v. Keisling
    • United States
    • Court of Appeals of Oregon
    • 24 Mayo 2000
  • Sager v. Bradbury, S47621.
    • United States
    • Supreme Court of Oregon
    • 1 Septiembre 2000
    ...P.3d 944 330 Or. 567 Sager v. Bradbury. No. S47621. Supreme Court of Oregon. September 1, 2000. Appeal from No. A105913, 167 Or.App. 405, 999 P.2d 1235 (Huss's Petition for review is dismissed. The petition for review is moot; the court on its own motion dismisses it. ...

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