
 Filed:  April 6, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN NOVICK,
	Petitioner,
	v.
HARDY MYERS,Attorney General	for the State of Oregon,
	Respondent.
(SC S47229)
	En Banc
	On petition to review ballot title.
	Argued and submitted March 16, 2000.
	Steven Novick, Portland, petitioner pro se, argued the cause
and filed the petition.
	Kaye E. McDonald, Assistant Attorney General, Salem, argued
the cause and filed the answering memorandum for respondent. 
With her on the memorandum were Hardy Myers, Attorney General,
and Michael D. Reynolds, Solicitor General.
	GILLETTE, J.
	Ballot title certified.  This decision shall become
effective in accordance with ORAP 11.30(10).
	Leeson, J., specially concurred and filed an opinion in
which Van Hoomissen, J., joined.
GILLETTE, J.
This is a ballot title review proceeding concerning the
Attorney General's certified ballot title for a proposed
initiative measure, denominated Initiative Petition 114 (2000). 
Petitioner is an elector who timely submitted written comments
concerning the content of the Attorney General's draft ballot
title and who therefore is entitled to seek review in this court. 
See ORS 250.085(2) (setting that requirement).  We review the
Attorney General's certified ballot title to determine whether it
substantially complies with the requirements of ORS 250.035
(1997).  See ORS 250.085(5) (setting out standard of review). 
For the reasons that follow, we conclude that it does.
The proposed measure would amend the Oregon
Constitution by adding the following section to Article IX:
"Notwithstanding any other measure passed in the
same election, a proportional, voter-approved tax cut,
including an increase in an allowed deduction or
subtraction from income, shall not be invalidated
because it benefits middle class or above taxpayers."

The Attorney General certified the following ballot title for the
proposed measure:
"AMENDS CONSTITUTION: PROHIBITS INVALIDATING PROPORTIONAL VOTER-APPROVED TAX CUTS FOR SPECIFIED REASONS
"RESULT OF 'YES' VOTE: 'Yes' vote prohibits
invalidating proportional, voter-approved tax cuts
because middle-, upper-class taxpayers benefit.


"RESULT OF 'NO' VOTE: 'No' vote leaves
constitution without provision prohibiting invalidation
of certain proportional, voter-approved tax cuts.
"SUMMARY:  Amends constitution.  The constitution
now says nothing about the invalidation of
proportional, voter-approved tax cuts.  The measure
would prohibit invalidating any proportional, voter-approved tax cut, including an increase in an allowed
deduction or subtraction from income, because it
benefits taxpayers in the middle class or above.  The
measure would apply notwithstanding any other measure
passed in the same election.  The measure does not
define 'proportional, voter-approved tax cut.'"

As applied to the present proceeding, (1) ORS 250.035
(1997) requires that a ballot title contain a caption of not more
than 10 words that "reasonably identifies the subject matter" of
the proposed measure, ORS 250.035(2)(a) (1997), a "yes" result
statement containing a "simple and understandable statement of
not more than 15 words that describes the result if the state
measure is approved," ORS 250.035(2)(b) (1997), a "no" result
statement containing a "simple and understandable statement of
not more than 15 words that describes the result if the state
measure is rejected," ORS 250.035(2)(c) (1997), and a summary
that is a "concise and impartial statement of not more than 85
words summarizing the state measure and its major effect," ORS
250.035(2)(d) (1997).
Petitioner challenges the caption, the "yes" result
statement, and the summary of the Attorney General's certified
ballot title.  Ordinarily, we would analyze each of those
challenges separately, because of the different statutory
criteria applicable to each.  In this case, however, petitioner's
challenge to each is based on a single premise.  We therefore
discuss that premise, rather than the separate components of the
ballot title.
Petitioner argues that the proposed measure "purports
to protect 'proportional' tax cuts -- but it also states that
such 'proportional' tax cuts include 'an increase in an allowed
deduction or subtraction from income.'"  Petitioner then notes
that "[a]n increase in a deduction or subtraction * * * can yield
a tax cut which is not proportional at all, by any standard."  It
follows, petitioner reasons, that, "to accurately describe the
measure, [the ballot title] should focus on the specific types of
tax cuts which the measure actually identifies, rather than the
adjective 'proportional,' which the measure employs in misleading
fashion."
"Proportional" means "being in proportion:
corresponding in size, degree, or intensity" or "having the same
or a constant ratio."  Webster's Third New Int'l Dictionary, 1819
(unabridged ed 1993).  It is true, as petitioner asserts, that
many imaginable forms of "deduction[s] or subtraction[s] from
income" might not prove to be "proportional," i.e., to have "the
same or a constant ratio" or to "correspond[] in size, degree, or
intensity" among various taxpayers.  But that part of
petitioner's premise will not carry the weight of the rest of his
argument.
The proposed measure does not purport to speak to all
forms of deductions or subtractions from income; if it did, then
it would have used a conjunction, "and," rather than using the
word "including" (the present participial form of the verb
"include"), in the subordinate clause in the sentence in
question.  "Include" means "to place, list, or rate as a part or
component of a whole or of a larger group, class, or aggregate." 
Webster's Third New Int'l Dictionary at 1143.  When placed in the
subordinate clause, "including" indicates that those things
listed fit the description in the independent clause that
precedes the subordinate clause -- in this case, "proportional"
voter-approved tax cuts.  It follows that the proposed measure
refers only to those deductions or subtractions from income that
fit the description in the independent clause, i.e., those that
truly are "proportional."  
The foregoing demonstrates that petitioner's challenge
to the Attorney General's certified ballot title is premised on
an assumption concerning the sweep of the proposed measure that
we do not find supportable under its plain wording.  Petitioner's
argument therefore fails.  We certify the following ballot title
to the Secretary of State for Initiative Petition 114:
AMENDS CONSTITUTION: PROHIBITS INVALIDATING PROPORTIONAL VOTER-APPROVED TAX CUTS FOR SPECIFIED REASONS
RESULT OF "YES" VOTE: "Yes" vote prohibits
invalidating proportional, voter-approved tax cuts
because middle-, upper-class taxpayers benefit.


RESULT OF "NO" VOTE: "No" vote leaves constitution
without provision prohibiting invalidation of certain
proportional, voter-approved tax cuts.
SUMMARY: Amends constitution.  The constitution
now says nothing about the invalidation of
proportional, voter-approved tax cuts.  The measure
would prohibit invalidating any proportional, voter-approved tax cut, including an increase in an allowed
deduction or subtraction from income, because it
benefits taxpayers in the middle class or above.  The
measure would apply notwithstanding any other measure
passed in the same election.  The measure does not
define "proportional, voter-approved tax cut."

Ballot title certified.  This decision shall become
effective in accordance with ORAP 11.30(10).
	LEESON, J., specially concurring.
	I agree with the majority that the Attorney General's
certified ballot title complies substantially with the
requirements of ORS 250.035 (1997).  I disagree with the majority
that it is appropriate for this court, in this proceeding, to
engage in the interpretive exercise that it does to come to that
conclusion.  Accordingly, I concur only in the result.
	The text of the measure at issue consists of one
sentence:
"Notwithstanding any other measure passed in the
same election, a proportional, voter-approved tax cut,
including an increase in an allowed deduction or
subtraction from income, shall not be invalidated
because it benefits middle class or above taxpayers." 

Petitioner contends that, although the measure purports to
protect "proportional" tax cuts, it also states that
"proportional" tax cuts include deductions or subtractions from
income.  According to petitioner, under any reasonable definition
of the word "proportional," deductions and subtractions never are
proportional, so the wording of the proposed measure is
misleading.  That is, voters will not necessarily understand that
increases in deductions or subtractions from income do not yield
"proportional" tax cuts.  He argues that
	"most voters are not CPAs, or tax policy devotees. 
Many sane, intelligent voters could read this language
and assume that increases in deductions or subtractions
from income do, in fact, yield 'proportional' tax
cuts."

	The Attorney General responds that petitioner's
argument "requires a disputable interpretation of the proposed
measure's meaning."  In the Attorney General's opinion, the
phrase "proportional, voter-approved tax cut" in the measure may
refer "only to those 'allowed increases' that are proportional in
fact."  The Attorney General contends that his certified ballot
title has avoided giving an opinion about the meaning of the word
"proportional," or an opinion about the implications of the
syntactical structure of the measure.  Rather, he notes, he has
identified the subject of the measure as proportional voter-approved tax cuts, he has repeated the syntax that is employed in
the measure in his ballot title summary, and he has explained
that the key word, "proportional," is not defined in the measure.
	The majority resolves the debate between petitioner and
the Attorney General about the meaning of the measure.  It holds
that the Attorney General's ballot title should be certified as
written because the measure admits of only one plausible
interpretation.  Although the majority might concede that not all
voters are CPAs or tax policy devotees, it apparently believes
that they are old-fashioned grammarians who readily will
understand that the use of the word "including," the present
participial form of the verb "include," in the subordinate clause
in the measure means that "only those deductions or subtractions
from income that fit the description in the independent clause  
* * * truly are 'proportional[.]'" __Or at __ (slip op at 4). 
	In my view, petitioner has made a credible argument
that voters who are not well-schooled in English grammar could
believe that, under this proposed measure, deductions or
subtractions from income are "proportional" tax cuts.  However,
the Attorney General also has made a credible argument that the 
proposed measure can be read to mean that "proportional, voter-approved tax cut" applies only to "allowed increases" that are in
fact proportional.  Because the Attorney General's reading of the
proposed measure is reasonable, this court should certify the
Attorney General's ballot title as complying substantially with
the requirements of ORS 250.035 (1997).  
	Unfortunately, the majority not only certifies the
Attorney General's ballot title, it uses this ballot title
challenge proceeding to announce its interpretation of the
proposed measure.  In my view, it is not necessary or appropriate
for this court in this ballot title proceeding to determine what
the proposed measure means.  Interpretation, should this proposed
measure become part of the Oregon Constitution, is for another
day.  When, as here, the majority's interpretive exercise is not
necessary to conclude that the Attorney General's ballot title
complies substantially with the statutory requirements, doing so
is inappropriate.  See Rooney v. Kulongoski (Elections Division
#13), 322 Or 15, 41, 902 P2d 1143  (1995) (in ballot title
challenge cases, "our task is to see to it that the interpretive
exercise be minimal").
	Van Hoomissen, J., joins in this concurrence.




1. 	The 1999 Legislature amended ORS 250.035(2) in several
respects.  Or Laws 1999, ch 793, § 1.  However, section 3 of that
1999 enactment provides, in part:
"(1) The amendments to ORS 250.035 by section 1 of
this 1999 Act do not apply to any ballot title prepared
for:


"(a) Any initiative petition that, if filed with
the Secretary of State with the required number of
signatures of qualified electors, will be submitted to
the people at the general election held on the first
Tuesday after the first Monday in November 2000[.]"

The present proposed measure is one of those to which the 1999
act does not apply.  We therefore apply the pertinent provisions
of ORS 250.035(2) (1997).	
Return to previous location.


