No. 4	                       January 30, 2014	701

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                        Elspeth McCANN,
                             Petitioner,
                                  v.
                       Ellen ROSENBLUM,
                 Attorney General, State of Oregon,
                            Respondent.
                       SC S061799 (Control)
                          Dan HARMON,
                             Petitioner,
                                  v.
                       Ellen ROSENBLUM,
                 Attorney General, State of Oregon,
                            Respondent.
                            SC S061801

    En Banc
   On petitions to review ballot title filed November 7, 2013,
considered and under advisement on December 17, 2013.
   Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter,
PC, Portland, filed the petition for review and reply for peti-
tioner McCann.
   Jill Gibson Odell, Gibson Law Firm, LLC, Portland, filed
the petition for review for petitioner Harmon.
    Judy C. Lucas, Senior Assistant Attorney General, Salem,
filed the answering memorandum for respondent.
    KISTLER, J.
    Ballot title referred to Attorney General for modification.
    Initiative Petition 30 (2014) would change Oregon’s corporate minimum tax
by eliminating the current cap on the minimum tax and by reducing by half the
minimum tax for corporations with between $500,000 and $9,999,999 in Oregon
sales. It would also eliminate the tax on profits for corporations with less than
$10,000,000 in Oregon sales, allowing those corporations to pay only the reduced
minimum tax. Petitioners challenged the caption, the “yes” and “no” result state-
ments, and the summary in the certified ballot title. Held: (1) The caption must be
702	                                  McCann / Harmon v. Rosenblum

modified to convey more of the ballot title’s significant effects; (2) the “yes” result
vote statement must be modified to reflect the exemption from the profits tax
for corporations with less than $10,000,000 in Oregon sales; (3) the “no” result
vote statement must be modified to disclose that one effect of voting “no” on the
measure would be that corporations with less than $10,000,000 in Oregon sales
would remain subject to a tax on their profits; and (4) the summary must be mod-
ified to clarify that minimum taxes will increase for corporations with more than
$50 million in Oregon sales.
    The ballot title is referred to the Attorney General for modification.
Cite as 354 Or 701 (2014)	703

	          KISTLER, J.
	         Petitioners McCann and Harmon seek review of the
Attorney General’s certified ballot title for Initiative Petition
30 (2014). See ORS 250.085(2) (specifying requirements for
seeking review of certified ballot titles). We review ballot
titles for substantial compliance with ORS 250.035(2). See
ORS 250.085(5) (stating standard of review). For the rea-
sons explained below, we refer the ballot title to the Attorney
General for modification.
	        In Oregon, corporations must pay the higher of
either a tax on their “taxable income” or a business min-
imum tax. See ORS 317.061 (imposing a tax on taxable
income); ORS 317.090 (listing a schedule of taxes based on
Oregon sales that, at a minimum, a corporation must pay).
The term “taxable income” is a defined phrase, which essen-
tially refers to a corporation’s profits. See ORS 317.010(10)
(defining “taxable income”); Green/Harmon v. Kroger, 351
Or 641, 644, 274 P3d 180 (2012) (describing an excise tax on
taxable income as a profits tax).1 The minimum tax is based
on a corporation’s total Oregon sales and sets the minimum
amount of tax that a corporation must pay for the privilege
of doing business in this state. See ORS 317.090.
	        Except for S corporations, the minimum tax that
a corporation owes will vary depending on the corpora-
tion’s total Oregon sales. ORS 317.090(2).2 For example, a
corporation with $50 million or more in Oregon sales but
less than $75 million owes a minimum tax of $50,000. ORS
317.090(2)(a)(J). A corporation with $75 million or more but
less than $100 million in Oregon sales owes a minimum tax
of $75,000. ORS 317.090(2)(a)(K). Finally, a corporation
with $100 million or more in Oregon sales owes a mini-
mum tax of $100,000. ORS 317.090(2)(a)(L). Because the
top bracket for minimum taxes applies to corporations with
$100 million or more in Oregon sales, it effectively caps the
minimum taxes that corporations owe. No matter how much

	1
       For convenience, we refer to a tax on “taxable income” as a “profits tax.”
	2
       The minimum tax for S corporations is $150 without regard to the amount
of their Oregon sales. ORS 317.090(2)(b). For other corporations, their total
Oregon sales will place them in one of 12 brackets, each of which results in a
different specified minimum tax liability. ORS 317.090(2)(a)(A) - (L).
704	                              McCann / Harmon v. Rosenblum

a corporation’s Oregon sales exceed $100 million, the corpo-
ration will never owe more than a $100,000 minimum tax.
	         Initiative Petition 30 (IP 30), if adopted, would
change two aspects of the minimum tax. First, it would
eliminate the current cap on minimum taxes by providing
that, if a corporation has more than $50 million in Oregon
sales, it would owe a minimum tax of $50,000 plus two
percent of all Oregon sales in excess of $50 million.3 IP 30
would thus increase the minimum tax for all corporations
with more than $50 million in Oregon sales. Second, IP 30
would reduce by half the minimum tax for corporations with
Oregon sales between $500,000 and $9,999,999.
	        IP 30 also would eliminate any tax on profits for
corporations with less than $10 million in Oregon sales. If
IP 30 were adopted, those corporations would pay only a
reduced minimum tax, no matter how much they earned in
profits on Oregon sales and even if they would have paid a
greater tax on their profits under current law.
	         The Attorney General certified the following ballot
title:
       “Modifies annual minimum tax for some corpora-
        tions, depending on the amount of corporation’s
                         Oregon sales
   “Result of ‘Yes’ Vote:  ‘Yes’ vote will decrease annual
   minimum tax for some corporations, increase annual min-
   imum tax for some corporations, depending on amount of
   corporation’s sales in Oregon.
   “Result of ‘No’ Vote:  ‘No’ vote retains current law, does
   not change amounts of minimum tax for corporations that
   are based on amount of corporation’s sales made in Oregon.
   “Summary:  Currently, each corporation or affiliated
   group of corporations filing a tax return under ORS
   317.710 must pay an annual minimum tax; minimum
   tax amount increases based on the level of the corpora-
   tion’s sales in Oregon. Measure decreases the minimum
   tax for corporations with Oregon sales between $500,000
	3
     Currently, a corporation with $60 million in Oregon sales would owe a
minimum tax of $50,000. See ORS 317.090(2)(a)(J). Under IP 30, the same cor-
poration would owe a minimum tax of $250,000 ($50,000 plus two percent of
$10 million).
Cite as 354 Or 701 (2014)	705

   and $9,999,999. Measure modifies minimum tax for cor-
   porations with Oregon sales over $50 million by requiring
   payment of $50,000 plus 2% of the excess of Oregon sales
   over $50 million. Eliminates current cap of $100,000 on
   tax. Corporations with taxable income less than $10 mil-
   lion shall pay minimum tax on sales rather than tax on
   taxable income. Amendment applies to tax years beginning
   on/after January 1, 2015. Other provisions.”
	         Petitioner McCann challenges the caption, the “yes”
and “no” vote result statements, and the summary.4 We
begin with McCann’s challenge to the caption. She argues
that the caption does not reasonably identify the subject
matter, because it omits significant information, such as
the elimination of the minimum-tax cap and the exemption
from the profits tax for lower-grossing corporations. She also
contends that, in the caption as well as throughout, the bal-
lot title uses misleading language. According to McCann,
the word “modifies” is underinclusive and impermissibly
vague. In her view, the initiative does more than modify:
it increases tax burdens for corporations with more than
$50 million in Oregon sales and decreases those burdens
for corporations with less than $10 million in Oregon sales.
Furthermore, she argues, the term “some corporations” is
misleading, because it implies that tax burdens will vary
according to the type of corporation.
	         In response, the Attorney General agrees that the
caption omits some information but contends that the omit-
ted information is not significant. In the Attorney General’s
view, the ballot title’s caption must inform voters of the “main
subject” of the initiative, not subsidiary details. Subsidiary
details, the Attorney General reasons, include whether IP 30
increases or decreases the minimum tax, removes a cap on
that tax, and exempts corporations with lower Oregon sales
from paying a tax on their profits. The Attorney General also
argues that “modifies” is not misleading or vague, because
it puts voters on notice of IP 30’s “main subject,” which is to
change minimum tax burdens for some corporations.
	       ORS 250.035(2)(a) provides that a ballot title must
contain a “caption of not more than 15 words that reasonably
	4
     Petitioner Harmon challenges only the summary.
706	                         McCann / Harmon v. Rosenblum

identifies the subject matter of the state measure.” The “sub-
ject matter” of a ballot title 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) (citation
omitted). To identify the “actual major effect” of a measure,
we 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). When the Attorney
General chooses to describe a measure by listing the changes
that the proposed measure would enact, some changes may
be of “sufficient significance” that they must be included in
the description. See Brady/Berman v. Kroger, 347 Or 518,
523, 225 P3d 36 (2009) (so concluding); see also Greenberg
v. Myers, 340 Or 65, 69, 127 P3d 1192 (2006) (“What the
Attorney General cannot do is select and identify in a cap-
tion only one out of multiple subjects and thus understate
the scope of the proposed measure’s subject matter.”)
	       IP 30 makes three important changes to Oregon
tax law. First, it exempts corporations with less than
$10 million in Oregon sales from having to pay any tax on
their profits. Second, it reduces by half the minimum tax
for corporations with more than $500,000 but less than
$10 million in Oregon sales. The result of those first two
changes is to reduce the excise taxes paid by corpora-
tions with under $10 million in Oregon sales. Third, IP 30
removes the cap on the minimum tax, thereby substantially
increasing minimum tax liability for the highest-grossing
corporations.
	        As noted, the certified caption provides: “Modifies
annual minimum tax for some corporations, depending on
the amount of corporation’s Oregon sales.” That text describes
only one general aspect (modification) of one change (alter-
ing minimum tax liabilities) that IP 30 would make. Not
only does the caption omit a significant change that the
measure would effect (eliminating profits taxes for lower-
grossing corporations), but by referring only to minimum
taxes, the caption incorrectly implies that no other types of
taxes would be affected. Moreover, even if the changes to the
minimum tax were the only effect of the measure, the unex-
plained use of the word “modifies” fails to communicate how
Cite as 354 Or 701 (2014)	707

IP 30 would change minimum taxes. Will the measure raise
taxes or lower them? The difference is significant.
	        We recognize that trying to describe all the major
effects of a multifaceted, complex measure in 15 words can
be difficult, and sometimes not possible. At times, it may
be necessary to describe those effects generally. See Kain
v. Myers, 336 Or 116, 121, 79 P3d 864 (2003). However, the
caption still must “reasonably identify” the subject matter
of the measure. ORS 250.035(2)(a). The caption could have
complied with that requirement by adding more detail about
the ways in which IP 30 would change corporate taxes, as
in “Eliminates corporate minimum-tax cap; reduces excise
taxes on corporations with Oregon sales under $10,000,000.”
Another approach might be to focus on the direction (increase
or decrease) that taxes will change, as in “Increases mini-
mum tax for higher-grossing corporations; decreases excise
taxes for lower-grossing corporations.”
	        Neither of those possible approaches is, of course,
perfect. The 15-word limit will often require trade-offs
between detail and breadth. But, even in such limited space,
more specific words can convey IP 30’s “major effects” more
completely than the Attorney General’s version. A ballot-
title caption written in terms so broad that they convey only
one highly generalized aspect of a ballot title’s multiple,
important effects does not substantially comply with ORS
250.035(2) and must be modified.
	        McCann also challenges the result statements. ORS
250.035(2)(b) and (c) provide that ballot titles must contain
a “simple and understandable statement of not more than
25 words that describes the result if the measure is” approved
or rejected. Generally, a ballot title’s result statements must
adequately describe the effects of voting one way or another.
As this court has observed, the “yes” vote result statement
should describe “the most significant and immediate” effects
of the ballot initiative for “the general public.” Novick/Crew
v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). Similarly, a
“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.” Id. at 577
                    ]
(emphasis in original).
708	                        McCann / Harmon v. Rosenblum

	        The Attorney General certified the following “yes”
vote result statement: “ ‘Yes’ vote will decrease annual min-
imum tax for some corporations, increase annual minimum
tax for some corporations, depending on amount of corpo-
ration’s sales in Oregon.” McCann argues that the “yes”
vote result statement suffers from the same defects as the
caption. The “yes” vote result statement is an improvement
on the caption in that it specifies how minimum taxes will
change. But it neglects to disclose at least one other import-
ant effect: IP 30 would exempt corporations with Oregon
sales less than $10 million from the profits tax. Accordingly,
and especially because the result statements may use
10 more words than the caption, the “yes” vote result state-
ment should include that “most significant and immediate”
change to the profits tax.
	        The Attorney General certified the following “no”
vote result statement: “  ‘No’ vote retains current law, does
not change amounts of minimum tax for corporations that
are based on amount of corporation’s sales made in Oregon.”
Although this statement accurately describes that a “no”
vote will not change minimum tax liabilities, it neglects to
identify what else about the current law—namely, the prof-
its tax—would be retained if voters did not adopt IP 30. We
conclude that, to “address[  the substance of the current
                              ]
law” and “summarize[ ] the current law accurately,” the “no”
vote result statement should disclose that one effect of vot-
ing “no” on the measure is that corporations with less than
$10 million in Oregon sales will continue to be subject to a
profits tax, namely a tax on the corporation’s taxable income.
	        We turn finally to petitioners’ challenges to the
summary. ORS 250.035(2)(d) requires that the ballot title
contain a “concise and impartial statement of not more than
125 words summarizing the state measure and its major
effect.” The purpose of a ballot title’s summary is to give
voters enough information to understand what will happen
if the initiative is adopted. See Whitsett v. Kroger, 348 Or
243, 252, 230 P3d 545 (2010) (so describing the purpose).
For convenience, we again set out the summary for IP 30:
   	 “Currently, each corporation or affiliated group of cor-
   porations filing a tax return under ORS 317.710 must pay
Cite as 354 Or 701 (2014)	709

   an annual minimum tax; minimum tax amount increases
   based on the level of the corporation’s sales in Oregon.
   Measure decreases the minimum tax for corporations with
   Oregon sales between $500,000 and $9,999,999. Measure
   modifies minimum tax for corporations with Oregon sales
   over $50 million by requiring payment of $50,000 plus 2%
   of the excess of Oregon sales over $50 million. Eliminates
   current cap of $100,000 on tax. Corporations with tax-
   able income less than $10 million shall pay minimum tax
   on sales rather than tax on taxable income. Amendment
   applies to tax years beginning on/after January 1, 2015.
   Other provisions.”

	        Reiterating her arguments about the caption and
result statements, McCann claims that the summary omits
significant information and uses misleading words. She
does not specify, however, which words in the summary are
misleading. Rather, she asserts that the summary “contains
the flaws discussed” in reference to the caption and result
statements, where she argued that the word “modifies” was
misleading. Similarly, petitioner Harmon contends that the
summary uses the word “tax” in a misleading way. The sum-
mary states that corporations with Oregon sales less than
$10 million will pay the annual minimum tax instead of a
“tax” on “taxable income.” In Harmon’s view, the initiative
should specify to which “tax” it is referring, because, like the
word “income” in Green/Harmon, the word “tax” may refer
to several different types of taxes. See Green/Harmon, 351
Or at 648 (holding that the phrase “corporate income” in cer-
tified ballot title, without more, was misleading because vot-
ers will not know if it referred to gross income, net income,
or capital gains, among other types of income).
	        The Attorney General responds that McCann’s
arguments about the summary fail for the same reason that
they failed when offered against the caption and result state-
ments. In response to Harmon, the Attorney General rejects
his reading of Green/Harmon. In the Attorney General’s
view, Green/Harmon stands only for the limited proposition
that, when a ballot title refers to “income,” it must specify
the type of income to which it refers. Consequently, because
IP 30 does not mention “income,” it cannot be misleading in
the sense that Green/Harmon recognized.
710	                        McCann / Harmon v. Rosenblum

	        We conclude that the summary, unlike the cap-
tion and result statements, does not neglect to describe the
major effects that IP 30 will have on current law. It dis-
closes the removal of the “current cap of $100,000,” describes
that taxes will “decrease[  for some corporations based on
                            ]”
Oregon sales, and explains that “[c]orporations with taxable
income less than $10 million shall pay [the] minimum tax”
rather than the “tax on taxable income” or profits tax. We
also conclude that the word “tax” in that context is not mis-
leading, because it is used as part of a phrase, “tax on tax-
able income,” which provides enough context, as required by
Green/Harmon, to convey adequately what type of tax it is.
	        We agree, however, that the summary’s use of the
word “modifies” is inadequate because it does not give voters
“enough information to understand what will happen” to the
minimum tax for corporations with more than $50 million
in Oregon sales if IP 30 is adopted. The summary describes
precisely what effect IP 30 will have on the minimum tax
for lower-grossing corporations: “Measure decreases the
minimum tax for corporations with Oregon sales between
$500,000 and $9,999,999.” (Emphasis added.) But the sum-
mary merely states that IP 30 “modifies” the minimum tax
“for corporations with Oregon sales over $50 million.” The
word “modifies” suggests that the business minimum tax
may change in either of two possible directions: upward or
downward. As explained above, however, IP 30 will increase
the minimum tax for all corporations with Oregon sales
exceeding $50 million. For that reason, “modifies” unnec-
essarily offers too little information about how IP 30 will
affect corporations in the highest minimum tax bracket.
Accordingly, we refer the caption, the “yes” vote result state-
ment, the “no” vote result statement, and the summary to
the Attorney General for modification.
	         Ballot title referred to Attorney General for modi-
fication.
