S057318, Opinion — Caruthers v. Kroger

300
Submitted on the record May 14, ballot title referred to Attorney General for
modification June 18, respondent's petition for reconsideration filed
June 23 allowed by opinion July 16, 2009
See 346 Or 520, 212 P3d 1264 (2009)
Jerry CARUTHERS
and Larry Wolf,
Petitioners,
v.
John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057318)
210 P3d882

Cite as 	301
CJS, Constitutional Law § 13.
En Banc
On petition to review ballot title.
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan
LLP, Portland, filed the petition for petitioners.
Douglas F. Zier, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on
the memorandum were John R. Kroger, Attorney General,
and Mary H. Williams, Solicitor General.
WALTERS,J.
The ballot title is referred to the Attorney General for
modification.

302 	Caruthers v. Kroger
WALTERS,J.
Petitioners challenge the ballot title for Initiative
Petition 37 (2010). See ORS 250.085(5) (describing procedure
for challenging Attorney General's certified ballot title). We
agree with one of petitioners' challenges and, therefore, refer
the ballot title to the Attorney General for modification.
Initiative 	Petition 	37 	(2010), 	if adopted, 	would
amend the Oregon Constitution to require that "no measure
which would increase or require an increase in ad valorem
property taxes in excess of$1 million may appear on the bal-
lot, except in a General Election." The proposed constitu-
tional amendment provides that "a measure shall be deemed
to increase property taxes in excess of $1 million, if the total
amount of taxes to be levied against all subject properties for
the life of the obligation, including the principle [sic] and
interest thereon, exceeds $1 million."
The Attorney General certified the following ballot
title for the proposed amendment:
"AMENDS CONSTITUTION: MEASURES INCREASING
AD VALOREM PROPERTY TAXES OVER ONE MILLION
DOLLARS ALLOWED ONLY AT GENERAL ELECTION
"RESULT OF 'YES' VOTE: 	'Yes' vote requires all
measures increasing ad valorem property taxes beyond one
million dollars over life of obligation to appear only on gen-
eral election ballot.
"RESULT OF 'NO' VOTE: 	'No' vote retains current
law allowing approval of measures increasing ad valorem
property taxes at election with fifty-percent voter partici-
pation or at general election.
"SUMMARY: 	Amends constitution. Current 'double-
majority' law allows measures increasing ad valorem prop-
erty taxes to be approved only at election where at least
fifty percent of registered voters cast ballots or at general
election in November of even-numbered year. Property tax
measures 	raise money for 	local 	government services,
including schools, law enforcement, libraries, parks, other
uses. Measure requires proposals increasing ad valorem
property taxes, where total amount of taxes expected to be
levied against all subject properties for life of obligation

Cite as 346 Or 300 	303
exceeds one million dollars, to appear only on general elec-
tion ballot; applies to renewal of existing property taxes.
Proposals for property tax increases of lower amounts still
could appear in other elections and would remain subject to
existing 'double-majority' approval requirement. 	Other
provisions."
Petitioners are electors who timely submitted writ-
ten comments to the Secretary of State concerning the con-
tent of the Attorney General's draft ballot title and who
therefore are entitled to seek review of the resulting certified
ballot title in this court. See ORS 250.085(2) (stating that
requirement). 	Petitioners 	challenge 	the 	caption 	of the
Attorney General's ballot title and assert that it does not cor-
rectly identify the subject matter of the amendment, as ORS
250.035(2)(a) requires, and instead is misleading. Petitioners
relatedly challenge the ''yes" and "no" vote result statements.
The proposed constitutional amendment applies to
measures that increase property taxes, when the taxes to be
levied against all subject properties are expected to exceed
$1 million over the life of obligation. Petitioners assert that
the caption does not make the emphasized point, viz., that
the $1 million threshold refers to the aggregate taxes that a
measure is expected to generate over the entire period of
their payments. By referring to the $1 million threshold with-
out that specification, petitioners assert, voters could con-
clude, incorrectly, that the proposed constitutional amend-
ment would apply to only measures that levy taxes of more
than $1 million in a single year. Further, petitioners argue,
the $1 million threshold is meaningless-most tax proposals
are expected to generate an aggregate of more than $1 mil-
lion; therefore, under the measure, only the rare tax proposal
could be considered other than at a general election.
This court reviews a challenge to a ballot title
caption to determine whether the caption "substantially
compl[ies]" with statutory requirements. ORS 250.085(5).
"The caption must state or describe the proposed measure's
subject matter accurately, and in terms that will not confuse
or mislead potential petition signers and voters." Kain I
Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (internal
quotation marks omitted). The caption "must identify the pro-
posed measure's subject matter in terms that will, inter alia,

inform potential petition signers and voters of the sweep of the
measure." Terhune v. Myers, 342 Or 475, 479, 154 P3d 1284
(2007). As this court noted in Rogers v. Myers, 344 Or 219, 223
n 1, 179 P3d 627 (2008), the informational function of the cap-
tion takes on particular importance in light of ORS 254.175(2),
which, since 1995, has authorized county clerks to print ballots
without displaying the summary of the certified ballot title. Or
Laws 1995, ch 534, § la.
To be accurate, a caption must not "understate or
overstate the scope of the legal changes that the proposed
measure would enact." Kain/Waller, 337 Or at 40. We rec-
ognize that that is a difficult proposition when the caption
must be limited to 15 words (excluding the words "Amends
Constitution"). ORS 250.035(2)(a). However, we agree with
petitioners that, in this instance, the caption contains either
too much or too little information and therefore is mislead-
ing. Without further explanation, the caption's reference to
"one million dollars" is likely to produce voter confusion. The
Attorney General should either eliminate the reference to the
$1 million threshold or clarify that the proposed constitu-
tional amendment would require that measures increasing
property taxes more than $1 million over the life of the obli-
gation be considered at only general elections. We therefore
refer the caption to the Attorney General for modification.
Petitioners also challenge the caption as failing to
indicate that it is the voters who are restricted by the meas-
ure and who therefore are the "true subject" of the measure.
Certainly, it is the voters who will vote on measures that are
subject to the proposed constitutional amendment, but we do
not agree that the caption for this initiative must directly
state that operative fact to satisfy the requirements of ORS
250.035(2)(a).
Petitioners' challenges to the "yes" and "no" vote
result statements in the certified ballot title are not well-
taken. Petitioners contend that those statements contain
flaws that are similar to those in the caption. However, the
"yes" and "no" statements adequately inform petition signers
and voters that the changes that the measure would impose
apply only to measures that seek to increase property taxes

Cite as 346 Or 300 (2009) 	305
beyond $1 million "over life of obligation." We also reject peti-
tioners' argument that the phrase "appear only on a general
election ballot" used in the "yes" statement is inaccurate
because the proposed amendment does not require that any
measure appear on the ballot. Petitioners' correct statement
that the initiative does not require that any measure appear
on the ballot does not render the "yes" statement inaccurate.
Sensibly read, the "yes" statement correctly informs petition
signers and voters that, when a tax measure does appear on
a ballot, it must be on a general election ballot. That reading
is correct. We therefore refer the certified ballot title to the
Attorney General for modification of the caption alone.
The ballot title is referred to the Attorney General
for modification.