FILED: MAY 9, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

WILLIAM C. GIRARD, JR.,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

JONAH EDELMAN,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S49312 (Control); S49326)
(Consolidated for Opinion)

En Banc

On petitions to review ballot title.

Submitted on the record April 4, 2002.

James N. Gardner, of Gardner & Gardner, Attorneys, P.C., Portland, filed the petition for petitioner Girard. With him on the petition was Lynda N. Gardner.

Steven C. Berman, of Stoll Stoll Berne Lokting & Schlachter P.C., Portland, filed the petition for petitioner Edelman.

Judy C. Lucas, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

PER CURIAM

Ballot title certified.

PER CURIAM

Petitioners brought these consolidated proceedings under ORS 250.085(2), challenging the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has designated as Initiative Petition 171 (2002). Petitioners are electors who timely submitted written comments to the Secretary of State concerning the Attorney General's draft ballot title and who therefore are entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). In reviewing the Attorney General's certified ballot title, we must determine whether it substantially complies with the requirements of ORS 250.035(2). See ORS 250.085(5) (stating standard of review).

The Attorney General certified the following ballot title for Initiative Petition 171:

"INCREASES CIGARETTE TAX 60 CENTS PER PACK;
INCREASES OTHER TOBACCO PRODUCTS TAX;
FUNDS NEW PROGRAMS

"RESULT OF 'YES' VOTE: 'Yes' vote raises cigarette tax by 3 cents per cigarette, other tobacco products tax by 30 percent of wholesale prices; establishes, funds new government programs.

"RESULT OF 'NO' VOTE: 'No' vote retains current cigarette, cigar, tobacco products taxes; allocation of revenues to General Fund, cities, counties, transportation, Oregon Health Plan, Tobacco Use Reduction Account.

"SUMMARY: Current law taxes cigarettes and other tobacco products, appropriates revenues to General Fund, cities, counties, elderly and disabled transportation, Oregon Health Plan, and Tobacco Use Reduction Account. Measure increases cigarette tax from 2.9 to 5.9 cents per cigarette (from 68 cents to $1.28 per pack of 20), increases tax on other tobacco products from 65 to 95 percent of wholesale prices; repeals 50-cent cap on cigar tax. Increased taxes apply to cigarettes and tobacco products held in stock on or distributed after January 1, 2003, and must be paid on existing stock by January 20, 2003. Creates and assigns tax revenues increase to new government programs for family leave benefits, early childhood education, child daycare, tobacco use prevention; creates oversight committee. Other provisions."

Petitioner Girard challenges the "yes" result statement and the summary of the Attorney General's certified ballot title on the ground that they fail to give an accurate description that the average voter could understand. Petitioner Edelman challenges the caption, result statements, and summary, arguing that they mischaracterize the initiative. We conclude that petitioners' arguments are not well taken.

Although the Attorney General maintains that none of petitioners' arguments challenge with validity the certified ballot title's substantial compliance with the requirements of ORS 250.035(2), he acknowledges an error that petitioners did not raise:

"After filing the certified summary, however, the state has become aware that the certified summary's statement of the current per-cigarette tax is not accurate. Instead of 2.9 cents per cigarette, the amount of the cigarette tax as of January 1, 2001, is 29 mills (2.9 cents) per cigarette plus 5 mills (0.5 cents) per cigarette for a total of 34 mills (3.4 cents) per cigarette. ORS 323.030(1); Oregon Laws 1995, ch 385, section 3(1) as extended by HB 3433, section 1(1).

"Although neither petitioner raises that point in his petition, the Attorney General advises this court of that error in the interests of obtaining an impartial ballot title. If this court deems that error to take the certified ballot title out of substantial compliance, then this court should refer the certified ballot title to the Attorney General for modification of the summary in that respect."

Review by this court is limited in scope by ORS 250.085(6), which states that "the Supreme Court shall not consider arguments concerning the ballot title not presented in writing to the Secretary of State[.]" Because petitioners did not raise that error, the authority, if any, to correct the certified ballot title does not rest with this court.

We certify the following ballot title to the Secretary of State:

"INCREASES CIGARETTE TAX 60 CENTS PER PACK;
INCREASES OTHER TOBACCO PRODUCTS TAX;
FUNDS NEW PROGRAMS

"RESULT OF 'YES' VOTE: 'Yes' vote raises cigarette tax by 3 cents per cigarette, other tobacco products tax by 30 percent of wholesale prices; establishes, funds new government programs.

"RESULT OF 'NO' VOTE: 'No' vote retains current cigarette, cigar, tobacco products taxes; allocation of revenues to General Fund, cities, counties, transportation, Oregon Health Plan, Tobacco Use Reduction Account.

"SUMMARY: Current law taxes cigarettes and other tobacco products, appropriates revenues to General Fund, cities, counties, elderly and disabled transportation, Oregon Health Plan, and Tobacco Use Reduction Account. Measure increases cigarette tax from 2.9 to 5.9 cents per cigarette (from 68 cents to $1.28 per pack of 20), increases tax on other tobacco products from 65 to 95 percent of wholesale prices; repeals 50-cent cap on cigar tax. Increased taxes apply to cigarettes and tobacco products held in stock on or distributed after January 1, 2003, and must be paid on existing stock by January 20, 2003. Creates and assigns tax revenues increase to new government programs for family leave benefits, early childhood education, child daycare, tobacco use prevention; creates oversight committee. Other provisions."

Ballot title certified.