OFFICE OF THE SECRETARY OF STATE

DENNIS RICHARDSON SECRETARY OF STATE

LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE

ELECTIONS DIVISION

STEPHEN N. TROUT

DIRECTOR

255 CAPITOL STREET NE, SUITE 501 SALEM, OREGON 97310-0722

(503) 986-1518

I N I T I A T I V E P E T I T I O N

TO: All Interested Parties

FROM: Lydia Plukchi, Compliance Specialist

DATE: March 15, 2018

SUBJECT: Initiative Petition 2018-039 Certified Ballot Title

The Elections Division received a certified ballot title from the Attorney General on March 14, 2018, for Initiative Petition 2018-039, proposed for the November 6, 2018, General Election.

Caption

Amends Constitution: Repeals requirement that three-fifths legislative majority approve bills raising revenue

Chief Petitioners

Joseph Baessler 6025 E Burnside St Portland, OR 97215 Katherine Driessen 618 NW Glisan St., Suite 203 Portland, OR 97209

Appeal Period

Any registered voter, who submitted timely written comments on the draft ballot title and is dissatisfied with the certified ballot title issued by the Attorney General, may petition the Oregon Supreme Court to review the ballot title.

If a registered voter petitions the Supreme Court to review the ballot title, the voter must notify the Elections Division by completing and filing form SEL 324 Notice of Ballot Title Challenge. If this notice is not timely filed, the petition to the Supreme Court may be dismissed.

Appeal Due How to Submit Appeal

March 28, 2018 Refer to Oregon Rules of Appellate Procedure, Rule 11.30 or contact the Oregon Supreme Court for more information at 503.986.5555.

Notice Due How to Submit Notice Where to Submit Notice

1st business day after appeal filed with Supreme Court, 5 pm

Scan and Email irrlistnotifier.sos@state.or.us Fax 503.373.7414 Mail 255 Capitol St NE Ste 501, Salem OR 97310

More information, including the certified ballot title and the Secretary of State's determination that the proposed initiative petition is in compliance with the procedural requirements established in the Oregon Constitution for initiative petitions, is contained in the IRR Database available at www.oregonvotes.gov.

1162 Court Street NE, Salem, OR 97301-4096

Telephone: (503) 378-4402 Fax: (503) 378-3997 TTY: (800) 735-2900 www.doj.state.or.us

DEPARTMENT OF JUSTICE

APPELLATE DIVISION

March 14, 2018

Stephen N. Trout

Director, Elections Division

Office of the Secretary of State

255 Capitol St. NE, Ste. 501

Salem, OR 97310

Re: Proposed Initiative Petition — Amends Constitution: Repeals Requirement That Three-

Fifths Legislative Majority Approve Bills Raising Revenue.

DOJ File #BT-39-18; Elections Division #2018-039

Dear Mr. Trout:

We received comments on the Attorney General’s draft ballot title for Initiative Petition

39 (2018) (BT-39-18) from Secretary of State Dennis Richardson, Pat McCormick (through

counsel, Gregory A. Chaimov), and chief petitioner Katherine Driessen (through counsel, Steven

C. Berman). Secretary Richardson objects to the draft ballot title’s summary. Chief petitioner

Katherine Driessen and Pat McCormick object to all parts of the draft ballot title. In this letter,

we discusses the commenters’ objections and our response to them.

A. The caption

The ballot title must include “[a] caption of not more than 15 words that reasonably

identifies the subject matter of the state measure.” ORS 250.035(2)(a). The “subject matter” is

“the ‘actual major effect’ of a measure or, if the measure has more than one major effect, all such

effects (to the limit of the available words).” Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194

(2011). To identify the “actual major effect” of a measure, the Attorney General must consider

the “changes that the proposed measure would enact in the context of existing law.” Rasmussen

v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). The draft caption provides:

Amends Constitution: Repeals requirement that three-fifths legislative majority approve

bills raising revenue

We received comments and objections to the caption from Ms. Driessen and Mr.

McCormick.

Mr. McCormick has two objections to the caption. First, he contends that the caption

should replace the phrase “bills for raising revenue” with a phrase that “voters will understand: a

bill that imposes or increases a tax.” (McCormick Letter, 2-3). Second, Mr. McCormick

ELLEN F. ROSENBLUM Attorney General

FREDERICK M. BOSS Deputy Attorney General

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believes that the caption should clarify that the “three-fifths” majority-vote requirement is one

that applies to each chamber of legislature and not to a combined vote of both chambers.

(McCormick Letter, 3).

Ms. Driessen contends that the caption is flawed “because it does not inform readers that

the primary and major effect of [IP 39] would be to allow bills for raising revenue to pass by a

legislative majority vote in both chambers.” (Driessen Letter, 2). Ms. Driessen believes the

caption “improperly emphasizes” that IP 39 would result in a repeal of the current three-fifths

majority necessary to pass bills raising revenue. (Driessen Letter, 3).

We do not find any of the commenters’ objections to the caption to be persuasive. As for

Mr. McCormick’s assertion that the term “bills for raising revenue” should be substituted with

the more colloquial phrase, “a bill that imposes or increases a tax,” we choose to retain the

original language from Article IV, section 25. We also decline to take Mr. McCormick’s

suggestion that we specify in the caption that the three-fifths legislative majority requirement

applies to each chamber of the legislature respectively as that clarification is better addressed in

the ballot title’s summary. Regarding Ms. Driessen’s contention that the caption should state

that IP 39 would change Article 1, section 25 to require only a simple majority vote to pass bills

raising revenue, we conclude that a better statement of IP 39’s major effect is the repeal of the

current supermajority requirement for passage of revenue-raising bills.

We certify the following caption:

Amends Constitution: Repeals requirement that three-fifths legislative majority approve

bills raising revenue

B. The “yes” vote result statement

A ballot title must include “[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). The “yes”

vote result statement should identify “the most significant and immediate” effects of the

measure. Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). The draft “yes” vote

result statement provides:

Result of “Yes” Vote: “Yes” vote amends constitution; repeals

requirement that three-fifths legislative majority approve bills for raising revenue;

revenue bills may pass by majority vote.

Mr. McCormick and Ms. Driessen both object to the “yes” result statement. Mr.

McCormick objects to the fact that the “yes” and “no” result statements “are not parallel in a way

that makes the yes result statement less clear to voters that the no result statement is.”

(McCormick Letter, 3).

Ms. Driessen objects to the “yes” result statement for the same reason she objects to the

caption, i.e. an improper emphasis on the repeal of the supermajority requirement without

explanation that the amendment would require only a majority to pass bills raising revenue.

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(Driessen Letter, 3). Ms. Driessen further objects to the use of the term “revenue bills” in the

“yes” result statement because voters might construe that term to include “fees as well as bills

that reduce taxes or increase tax revenues by eliminating tax exemptions.” (Driessen Letter, 4).

We disagree with Mr. McCormick’s objection and find that the “yes” and “no” result

statements track each other in a sufficiently parallel structure. Based on Ms. Driessen’s

objection to the use of the term “revenue bills” as potentially confusing, we modify the “yes”

result statement to enhance its consistency and certify the following “yes” result statement:

Result of “Yes” Vote: “Yes” vote amends constitution; repeals

requirement that three-fifths legislative majority approve bills for raising revenue;

bills for raising revenue may pass by majority vote.

C. The “no” vote result statement

A ballot title must include “[a] simple and understandable statement of not more than 25

words that describes the result if the state measure is rejected.” ORS 250.035(2)(b). The “no”

vote result statement “should ‘address[] the substance of current law on the subject matter of the

proposed measure’ and ‘summarize [ ] the current law accurately.’” McCann v. Rosenblum, 354

Or 701, 707, 320 P3d 548 (2014) (quoting Novick/Crew, 337 Or at 577) (emphasis added in

Novick/Crew). The draft “no” vote result statement provides:

Result of “No” Vote: “No” vote retains current law requiring three-fifths

legislative majority to pass any bill brining money into the state treasury by

creating or increasing tax.

Mr. McCormick and Ms. Driessen both object to the “no” result statement. Mr.

McCormick objects to the “no” result statement for three reasons. First, he objects

because the “no” result statement, like the caption, refers to a legislative ‘majority’

instated of ‘majorities.’” (McCormick Letter, 4). Second, he objects because “the draft

no statement uses the inaccurate term ‘creates’ in place of the accurate legal terms ‘levy’

or impose.’” (McCormick Letter, 4). Third, “the no statement omits mention that the

current law IP 39 seeks to undo is a recent amendment adopted by the people.”

(McCormick Letter, 4).

Ms. Driessen objects to the “no” result statement for two reasons. First, she

asserts that the “no” result statement is flawed because it fails to inform voters “that

under current law a majority vote of both chambers of the legislature is required to

approve non-revenue raising bills.” (Driessen Letter, 4). Second, Ms. Driessen notes that

a revenue raising bill could involve a revenue increase other than a tax, such as an

assessment, and thus contends that “[t]he phrase ‘creating or increasing tax’ in the result

of no statement understates the scope of what could constitute a ‘bill for raising revenue’

under existing law.” (Driessen Letter, 4).

We do not find any of Mr. McCormick’s or Ms. Driessen’s objections to be well

taken. We disagree with Mr. McCormick’s contention that the term “creates” is

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misleading and that substituting that term with “levy” or “impose” is necessary. We also

conclude that the “no” result statement adequately summarizes existing law without

mentioning that IP 39 changes an earlier constitutional amendment.

Ms. Driessen’s objections to the “no” result statement are likewise unpersuasive.

First, the fact that a simple majority is required for non-revenue bills is not germane to

Article IV, section 25’s three-fifths supermajority requirement that applies to bills for

“raising revenue” and thus does not merit inclusion in the “no” result statement. Second,

we find it unnecessary to include in the “no” result statement the theoretical possibility

that a “bill for raising revenue” could be something other than a bill “creating or

increasing a tax” given that the Oregon Supreme Court has defined a “bill for raising

revenue” as one possessing “the essential features of a bill levying a tax.” Bobo v.

Kulongoski, 338 Or 111, 122, 107 P3d 18 (2005). We certify the following “no” result

statement:

Result of “No” Vote: “No” vote retains current law requiring three-fifths

legislative majority to pass any bill bringing money into the state treasury by

creating or increasing tax.

D. The summary

We next consider the draft summary. A ballot title must include “[a] concise and

impartial statement of not more than 125 words summarizing the state measure and its major

effect.” ORS 250.035(2)(d). “The purpose of a ballot title’s summary is to give voters enough

information to understand what will happen if the initiative is adopted.” McCann, 354 Or at 708.

The draft summary provides:

Summary: Amends Constitution. The Oregon Constitution provides that

“bills for raising revenue” require the approval of three-fifths of each house of the

legislature. The constitution does not currently define “raising revenue,” but

Oregon Courts interpret it to include bills that bring money into the state treasury

by creating or increasing a tax. Proposed measure would eliminate the three-

fifths-majority requirement for bills raising revenue, meaning that bills for raising

revenue could be passed by a majority vote in each house.

Mr. McCormick, Ms. Driessen, and Secretary Richardson object to the draft

summary. Beyond reiterating earlier objections, Mr. McCormick contends that the

summary’s second sentence is confusing because that sentence “substitutes the indefinite

pronoun ‘it’ for the term ‘raising revenue.’” (McCormick Letter, 6). The only new

objection that Ms. Driessen advances is that IP 39 should not be described as a

“proposed” measure. Finally, Secretary Richardson suggests adding the following

sentence to the summary describing common bills that raise revenue: “‘For example, this

would include tax on personal income, property, unemployment insurance, corporate

income, medical provider, gasoline, payroll, weight mile, franchise, tobacco, estate,

hotel-motel, and business license.’” (Richardson Letter, 1).

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We incorporate Mr. McCormick’s suggested edit of the summary’s second sentence to

enhance its clarity. And we agree with Secretary Richardson that examples of common bills

raising revenue would be helpful context for voters but simplify the list that the Secretary of

State suggested to make it clearer to voters. We disagree with Ms. Driessen that the use of the

word “proposed” is misleading in describing a measure that has not yet been adopted by the

voters. We certify the following summary:

Summary: Amends Constitution. The Oregon Constitution provides that

“bills for raising revenue” require the approval of three-fifths of both the House

and the Senate. The constitution does not currently define “raising revenue,” but

Oregon Courts interpret that phrase to include bills that bring money into the state

treasury by creating or increasing a tax. For example, bills that create or increase

taxes on personal income, property, corporate income, payroll, unemployment

insurance, medical providers, business licenses, and gasoline currently require a

three-fifths majority. Proposed measure would eliminate the three-fifths-majority

requirement for bills raising revenue, meaning that bills for raising revenue could

be passed by a majority vote in each house.

E. Conclusion

For the reasons set forth above, we have modified the draft ballot title and certify

the ballot title attached to this letter.

Sincerely,

/s/ Greg Rios ______________________________

Greg Rios

Senior Assistant Attorney General

gregory.a.rios@doj.state.or.us

Enclosure

Gregory Chaimov

1300 SW Fifth Avenue

Portland, OR 97201

Joseph Baessler

6025 E Burnside St.

Portland, OR 97215

Steven C. Berman

209 SW Oak Street

Suite 500

Portland, OR 97204

Katherine Driessen

618 NW Glisan St.

Suite 203

Portland, OR 97209

Dennis Richardson

900 Court St. NE, #136

Salem, OR 97310

Certified by Attorney General on March 14, 2018.

/s/ Gregory A. Rios

Senior Assistant Attorney General

BALLOT TITLE

Amends Constitution: Repeals requirement that three-fifths legislative majority

approve bills raising revenue

Result of “Yes” Vote: “Yes” vote amends constitution: repeals

requirement that three-fifths legislative majority approve bills for raising revenue; bills

for raising revenue may pass by majority vote.

Result of “No” Vote: “No” vote retains current law requiring three-fifths

legislative majority to pass any bill bringing money into the state treasury by creating or

increasing tax.

Summary: Amends Constitution. The Oregon Constitution provides that

“bills for raising revenue” require the approval of three-fifths of both the House and the

Senate. The constitution does not currently define “raising revenue,” but Oregon Courts

interpret that phrase to include bills that bring money into the state treasury by creating or

increasing a tax. For example, bills that create or increase taxes on personal income,

property, corporate income, payroll, unemployment insurance, medical providers,

business licenses, and gasoline currently require a three-fifths majority. Proposed

measure would eliminate the three-fifths-majority requirement for bills raising revenue,

meaning that bills for raising revenue could be passed by a majority vote in each house.