J. L. WILSON and Justen A. Rainey, Petitioners,
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent. Mike FITZ Petitioner,
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.
petition to review ballot title fled September 11, 2017;
considered and under advisement on November 16, 2017.
Gregory A. Chaimov and Tim Cunningham, Davis Wright Tremaine
LLP, Portland, fled the petition and reply memorandum on
behalf of petitioners Wilson and Rainey.
R. Rietmann, Rietmann & Rietmann, LLP, Salem, fled the
reply memorandum on behalf of petitioner Fitz.
C. Moan, Assistant Attorney General, Salem, fled the
answering memorandum on behalf of respondent. Also on the
answering memorandum were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
ballot title is referred to the Attorney General for
challenge the legal sufficiency of the Attorney General's
certified ballot title for Initiative Petition 21 (2018). Our
task in reviewing ballot title challenges is to determine
whether the ballot title substantially complies with
statutory requirements. See ORS 250.085(5) (stating
standard of review). In this case, we conclude that, in two
respects, the Attorney General's certified ballot title
does not substantially comply with the law. We therefore
refer it to the Attorney General for modification.
Oregon law imposes a tax on the distribution of
cigarettes and tobacco products in the state. ORS 323.030.
The tax is collected from distributors before retailers
purchase the products and sell them to consumers.
case of cigarettes, the law requires distributors to pay
the tax at a rate specified in mills (thousandths of a
dollar) per cigarette. Id. The Oregon Department of
Revenue furnishes tax stamps to distributors as proof of
payment of the tax. ORS 323.160. The tax stamps then must be
affixed to each package of cigarettes before distribution.
Id. Federal law requires cigarettes to be sold in
packages of no fewer than 20, 21 CFR § 1140.16(b)
(2010), and indeed cigarettes are commonly sold in packages,
or "packs," of 20. The total tax rate for
cigarettes currently is 66.5 mills per cigarette, or $1.33
per pack. ORS 323.030, ORS 323.031.
case of cigars or other tobacco products, the tax is imposed
differently. For cigars, the tax is 65 percent of the
wholesale price, but it is capped at 50 cents per cigar. ORS
323.505(2)(a). For other tobacco products, the tax is either
a similar percentage of the wholesale price or an amount by
weight of the product. ORS 323.505(2)(b), (c).
if enacted, would alter the foregoing tax scheme in four
ways. First, it would increase the tax on cigarettes by
100 mills per cigarette, or $2.00 per pack. IP 21
§§ 1, 2. Second, it would eliminate the 50-cent cap
on cigar taxes. Id. at § 4. Third, it would
require that all moneys received from the new cigarette tax
be first deposited with the state treasurer and, after the
payment of any refunds for overpayments, be credited to the
Public Health Account, "to [362 Or. 228] be used for the
funding of local public health authorities in all areas of
the state for public health programs." Id. at
§ 3. Fourth, certain sections of the
measure-specifically, those amending the cigarette tax and
the use of cigarette-tax revenues-would apply retroactively
to the distribution of cigarettes and tobacco products on or
after January 1, 2018. Id. at § 5.
Attorney General certified the following ballot title for IP
"Increases cigarette tax; resulting
revenue to fund public health programs;
removes cap on cigar tax.
"Result of 'Yes' Vote:
'Yes' vote increases tax on cigarettes by 10
cents per cigarette; resulting revenue to fund public health