On petitions to review ballot title filed November 27, 2013, considered and under advisement on January 22, 2014.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the petition for review and reply for petitioner McCann.
Jill Gibson Odell, Gibson Law Firm, LLC, Portland, filed the petition for review for petitioner Harmon.
Jeff J. Payne, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
[354 Or. 773] LINDER, J.
Petitioners McCann and Harmon seek review of the Attorney General's certified ballot title for Initiative Petition 33 (2014). See ORS 250.085(2) (specifying requirements for seeking review of certified ballot titles). We review ballot titles for substantial compliance with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification.
Initiative Petition 33 (IP 33) is identical in all relevant substantive respects to Initiative Petition 30 (2014) (IP 30). We recently reviewed the ballot title for IP 30 in McCann v. Rosenblum, 354 Or. 701, 320 P.3d 548, (Jan 30, 2014), and summarized the changes tat IP 30 would make to Oregon tax law:
" IP 30 makes three important changes to Oregon tax law. First, it exempts corporations with less than $10 million in Oregon sales from having to pay any tax on their profits. Second, it reduces by half the minimum tax for corporations with more than $500,000 but less than $10 million in Oregon sales. The result of those first two changes is to reduce the excise taxes paid by corporations with under $10
million in Oregon sales. Third, IP 30 removes the cap on the minimum tax, thereby substantially increasing minimum tax liability for the highest-grossing corporations that owe a minimum tax."
Id. at 706, 320 P.3d at 551. That summary accurately describes the changes that IP 33 would make as well. The one notable difference between the two initiatives involves the third change identified above -- i.e., that IP 30 would remove the cap on the minimum tax and thereby substantially increase the minimum tax liability for the " highest-grossing corporations," which, for IP 30, were those with $50 million or more in sales. IP 33 would do the same thing, but does so for corporations with $100 million or more in sales. Other than that difference, the changes that the two initiative petitions would make to Oregon law are the same.
The Attorney General's certified ballot title for IP 33 largely mirrors her ballot title for IP 30. Indeed, the caption and the " yes" and " no" vote result statements are [354 Or. 774] word-for-word the same. Petitioner McCann raises the same challenges to those parts of the ballot title for IP 33 that she raised for IP 30's ballot title; the Attorney General makes the same responses to those challenges. In McCann, we determined the caption and the results statements in the ballot title for IP 30 failed to substantially comply with the requirements of ORS 250.035(2)(d).354 Or. at 706-07, 320 P.3d 551-52 (describing inadequacy of caption) and 354 Or. at 707-09, 320 P.3d at 552-53 (describing inadequacy of yes and no results statements). For the same reasons, we likewise conclude that the caption and results statements in the ballot title for IP 33 fail to substantially comply with the statute.
Our analysis of the summary, however, differs in part. In McCann, we concluded that the following sentence in the summary that the Attorney General prepared for IP 30 was inadequate:
" Measure modifies minimum tax for corporations with Oregon sales over $50 million by requiring payment of $50,000 plus 2% of the excess of ...