Novick v. Myers (S48605)

Filed: August 9, 2001

IN THE SUPREME COURT OF THE STATE OF OREGON

STEVEN NOVICK,

Petitioner,

v.

HARDY MYERS,
Attorney General, State of Oregon,

Respondent.

(SC S48605)

En Banc

On petition to review ballot title.

Submitted on the record July 19, 2001.

Steven Novick, in propria persona, filed the petition.

Douglas F. Zier, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

GILLETTE, J.

Ballot title referred to Attorney General for modification.

GILLETTE, J.

This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 48 (2002). The proposed measure, if adopted, would phase in a revenue sharing procedure in which 15 percent of state personal and corporate income tax revenue would be distributed "to local governments and those local service districts providing essential services."

Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5).

Petitioner challenges only the "yes" result statement in the Attorney General's ballot title. That statement provides:

"'Yes' vote requires distribution of fifteen percent of all state income tax revenue to some local governments, service districts that do not tax business income."

A "yes" result statement must set out a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." ORS 250.035(2)(b). Petitioner asserts that the Attorney General's "yes" result statement fails to comply with the requirements of ORS 250.035(2)(b), in that it suggests -- incorrectly -- that the only local governments that are eligible to receive shared tax revenues are those governments that do not themselves tax business income. In fact, as petitioner points out, several such governments will be qualified to receive shared tax revenues, but their ordinary share will be reduced by the amount that they raise through their own local taxes on personal or business income, revenue, or profits.

The Attorney General concedes that petitioner's criticism of the "yes" result statement is well taken, and we agree. We hold that the Attorney General's "yes" result statement fails to comply substantially with the requirements of ORS 250.035(2)(b). Under ORS 250.085(8), Or Laws 2001, ch 802, § 2 (House Bill 2213 (2001), section 2), the ballot title is referred to the Attorney General for modification. See Flanagan v. Myers, 332 Or 318, ___ P3d ___ (2001) (explaining procedure under 2001 legislative amendments to ORS 250.085).

Ballot title referred to Attorney General for modification.