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Milne v. Rosenblum

Supreme Court of Oregon, En Banc

February 13, 2014

PATRICIA MILNE, CLIFF SAIN-THOMASON, and WAYNE SIMMONS, Petitioners,
v.
ELLEN ROSENBLUM, Attorney General, State of Oregon, Respondent

On petition to review ballot title filed November 19, 2013; considered and under advisement on January 7, 2014.

Kevin L. Mannix, Kevin L. Mannix, P.C., Salem, filed the petition and reply for petitioners on review.

Judy C. Lucas, Senior Assistant Attorney General, Salem, filed the answering memorandum for respondent on review. With her on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

OPINION

Page 261

[354 Or. 809] BALDWIN, J.

Petitioners seek review of the Attorney General's certified ballot title for Initiative Petition 31 (2014). See ORS 250.085(2) (requirements for review of certified ballot titles). We review ballot titles for substantial compliance with ORS 250.035. See ORS 250.085(5) (so stating). For the reasons explained below, we refer the ballot title to the Attorney General for modification. ORS 250.085(8).

Initiative Petition 31 (" Oregon Lottery Local Control Act" ) is a proposed constitutional amendment that would dedicate 50 percent of state lottery net proceeds to a " county revenue distribution fund." Currently, the Oregon Constitution provides for the statewide expenditure of lottery proceeds for specified purposes. Ore. Const, Art XV, § 4. All net proceeds are to be used for the purposes of " creating jobs, furthering economic development, financing public education in Oregon or restoring and protecting Oregon's parks, beaches, watersheds and native fish and wildlife." Ore. Const, Art XV, § 4(3). Two provisions specifically require allocations by percentage of net proceeds for certain purposes. See Ore. Const, Art XV, § 4(4)(d) (requiring 18 percent allocation for education); Ore. Const, Art XV, § 4(8) (requiring 15 percent allocation for parks and natural resources). Additionally, by statute, percentages of net funds are allocated to other state programs related to lottery activities. See ORS 461.549(2) (one percent for gambling treatment); ORS 461.543(4) (one percent for sports lottery account); ORS 461.547(1) (two-and-a-half percent for economic development activities).

Page 262

Initiative Petition 31 would amend the Oregon Constitution to provide that " 50% of the net proceeds from the State Lottery shall be deposited in a county revenue distribution fund to be created by the Legislative Assembly." Oregon Lottery Local Control Act, § 2. The measure provides that " [t]en percent of [those] moneys must be allocated and distributed to all counties in an equal amount for each county." and " [n]inety percent of the moneys must be allocated and distributed to all counties in the same proportion for each county as the State Lottery generates gross proceeds from such county." Id. § 3(a), (b). The measure further [354 Or. 810] provides that the funds distributed to all counties shall be used for " any of the following public purposes: creating jobs; furthering economic development; financing public education; restoring and protecting parks, beaches, watersheds and native fish and wildlife; and providing public safety." Id. § 4. Thus, counties would be permitted to utilize distributed funds for the same general purposes as those that the constitution currently dictates for the state, but, unlike the state, counties would be allowed to also expend lottery funds for the purpose of providing for public safety. Moreover, unlike what the constitution currently dictates for the state, counties would not be subject to the requirement that 18 percent of the funds be allocated for educational purposes and 15 percent be allocated for parks and natural resources.[1] Under the measure, the legislature " may not establish substantive limitations" on how counties allocate distributed funds " or [impose] additional restrictions on the use of those moneys." Id. § 6.

The Attorney General certified the following ballot title:

" Amends Constitution: Fifty percent of net lottery proceeds distributed to counties, reducing amount available for state appropriations
" Result of 'Yes' Vote: 'Yes' vote requires depositing 50% of lottery net proceeds in fund for distribution to counties; reduces amount of lottery funding available for legislative appropriations.
" Result of 'No' Vote: 'No' vote retains using 100% of lottery net proceeds for legislative appropriations for specified public purposes, including: economic development, public education, protecting natural resources.
" Summary: Amends Constitution. Constitution currently mandates 100% of state lottery net proceeds be used to create jobs; further economic development; finance a public education stability fund and a school capital matching [354 Or. 811] fund; finance a parks and natural resources fund to be used for specified purposes, including restoration and protection of parks, beaches, watersheds, and native fish/wildlife. Measure requires 50% of lottery net proceeds be deposited in 'county revenue distribution fund' and distributed to counties: ten percent divided equally between counties, remainder distributed based on each county's lottery sales. Reduces net lottery proceeds available for appropriation by legislature. Counties shall ...

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