No. 8	               February 13, 2014	771

           IN THE SUPREME COURT OF THE
                 STATE OF OREGON

                     Elspeth McCANN,
                          Petitioner,
                               v.
                    Ellen ROSENBLUM,
                     Attorney General,
                      State of Oregon,
                         Respondent.
                   (SC S061850 (Control))
                       Dan HARMON,
                          Petitioner,
                               v.
                    Ellen ROSENBLUM,
                     Attorney General,
                      State of Oregon,
                         Respondent.
                        (SC S061851)

   En Banc
   On petitions to review ballot title filed November 27, 2013,
considered and under advisement on January 22, 2014.
   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.
   Jeff J. Payne, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. With him on
the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
   LINDER, J.
   Ballot title referred to Attorney General for modification.
772	                                   McCann/Harmon v. Rosenblum

    Initiative Petition 33 (2014) would change Oregon’s corporate minimum tax
by eliminating the current cap on the minimum tax by requiring corporations
with sales over $100 million to pay a minimum tax of $100,000 plus 2 percent of
the excess of Oregon sales over $100 million. Initiative Petition also would reduce
by half the minimum tax for corporations with between $500,000 and $9,999,999
in Oregon sales. Finally, it would eliminate the tax on profits for corporations
with less than $10 million in Oregon sales, allowing those corporations to pay
only the reduced minimum tax. Petitioners challenged the caption, the “yes” and
“no” result statements, and the summary in the certified ballot title. Held: (1) The
caption must be 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 modified to clarify that the measure, in increasing the minimum tax for
corporations with Oregon sales of over $100 million requires payment of $100,000
in addition to two percent of the excess of Oregon sales over $100 million.
    The ballot title is referred to the Attorney General for modification.
Cite as 354 Or 771 (2014)	773

	         LINDER, J.
	         Petitioners McCann and Harmon seek review of the
Attorney General’s certified ballot title for Initiative Petition
33 (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.
	        Initiative Petition 33 (IP 33) is identical in all rel-
evant substantive respects to Initiative Petition 30 (2014)
(IP 30). We recently reviewed the ballot title for IP 30 in
McCann v. Rosenblum, 354 Or 701, ___ P3d ___ (2014), and
summarized the changes that IP 30 would make to Oregon
tax law:
    	 “IP 30 makes three important changes to Oregon tax
    law. First, it exempts corporations with less than $10 mil-
    lion in Oregon sales from having to pay any tax on their
    profits. Second, it reduces by half the minimum tax for cor-
    porations with more than $500,000 but less than $10 mil-
    lion in Oregon sales. The result of those first two changes is
    to reduce the excise taxes paid by corporations 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 corpora-
    tions that owe a minimum tax.”
Id. at 706. That summary accurately describes the changes
that IP 33 would make as well. The one notable difference
between the two initiatives involves the third change identi-
fied above—i.e., that IP 30 would remove the cap on the min-
imum tax and thereby substantially increase the minimum
tax liability for the “highest-grossing corporations,” which,
for IP 30, were those with $50 million or more in sales. IP 33
would do the same thing, but does so for corporations with
$100 million or more in sales. Other than that difference,
the changes that the two initiative petitions would make to
Oregon law are the same.
	       The Attorney General’s certified ballot title for
IP 33 largely mirrors her ballot title for IP 30. Indeed, the
caption and the “yes” and “no” vote result statements are
774	                          McCann/Harmon v. Rosenblum

word-for-word the same. Petitioner McCann raises the same
challenges to those parts of the ballot title for IP 33 that she
raised for IP 30’s ballot title; the Attorney General makes the
same responses to those challenges. In McCann, we deter-
mined the caption and the results statements in the ballot title
for IP 30 failed to substantially comply with the requirements
of ORS 250.035(2)(d). 354 Or at 706-07 (describing inadequacy
of caption) and 707-08 (describing inadequacy of yes and no
results statements). For the same reasons, we likewise con-
clude that the caption and results statements in the ballot title
for IP 33 fail to substantially comply with the statute.
	        Our analysis of the summary, however, differs in
part. In McCann, we concluded that the following sentence in
the summary that the Attorney General prepared for IP 30
was inadequate:
   “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.”
Id. at 708-10. The defect that we identified was the use of
the word “modifies,” which suggested that the business min-
imum tax may change “in either of two directions, upward
or downward,” when in fact, “IP 30 will increase the mini-
mum tax for all corporations with Oregon sales exceeding
$50 million.” Id. at 710 (emphasis in original). Because the
term “modifies” gave voters too little information about how
IP 30 would affect corporations in the highest minimum
tax bracket, we referred it, along with the caption and the
“yes” vote and “no” vote results statements, to the Attorney
General for modification.
	         Although McCann appears to raise that same chal-
lenge to the summary for IP 33, the summary here does not con-
tain the same problematic use of the word “modifies.” Instead,
the analogous sentence in the summary for IP 33 reads:
   “Measure increases minimum tax for corporations with
   Oregon sales over $100,000,000 by requiring payment of
   2% of the excess of Oregon sales over $100,000,000.”
The Attorney General’s use of the word “increases” in the
summary for IP 33, rather than the word “modifies” as she
Cite as 354 Or 771 (2014)	775

used in the summary for IP 30, resolves the problem that we
identified in McCann.
	        But that same sentence in the summary for IP 33
introduces an issue that was not posed by the summary for
IP 30. In particular, petitioner Harmon argues that “the
summary describes the proposed tax in a way that suggests
that the tax would only be 2% of the excess over $100 mil-
lion,” instead of explaining that corporations with Oregon
sales over $100 million would pay the minimum tax of
$100,000 as well. The Attorney General responds that IP 33
does not change the current $100,000 tax liability for those
corporations, and it was therefore unnecessary to “detail that
change.” The Attorney General instead opted to describe
only the amount by which the corporate tax liability would
increase—i.e., two percent of the excess of Oregon sales over
$100 million.
	        We agree with petitioner Harmon, however, that the
summary is inadequate. A comparison with the analo-
gous statement for IP 30, quoted above, is telling. There,
the Attorney General opted to advise voters that, for cor-
porations with Oregon sales over $50 million, the measure
would require a minimum tax payment “of $50,000 plus 2%
of the excess of Oregon sales over $50 million.” Here, in con-
trast, the summary states only that IP 33 would require a
minimum tax payment “of 2% of the excess of Oregon sales
over $100,000,000,” without similarly advising voters that
the tax owed would include the current tax of $100,000. In
that respect, the summary in the ballot title for IP 33 gives
voters less information than they need to understand ade-
quately the change that the measure would make.1
	       Ballot title referred to Attorney General for
modification.
	1
         Petitioner Harmon raised an additional challenge to the summary in the
ballot title for IP 30, arguing that it did not adequately identify the type of tax
(i.e., profits tax) that the measure would eliminate. McCann, 354 Or at 710. We
rejected that argument after concluding that the Attorney General’s reference
to “tax on taxable income” provided sufficient context to adequately convey to
voters the type of tax to which the summary referred. Petitioner Harmon does
not renew that challenge to the summary for IP 33, but petitioner McCann does.
For the reasons that we rejected that argument in McCann, we likewise reject it
here without further discussion. See id. at 710 (explaining reasons for rejecting
argument).
