
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.
