
	Filed: June 18, 1998
IN THE SUPREME COURT OF THE STATE OF OREGON
WALTER HUSS,





	Petitioner,





	v.





HARDY MYERS, Attorney General,



State of Oregon,





	Respondent.





(SC S45219)
	On petition to review ballot title.





	Argued and submitted May 12, 1998.





	Terrance L. McCauley, Estacada, argued the cause and filed

the petition on behalf of petitioner.





	Philip Schradle, Assistant Attorney General, Salem, argued

the cause on behalf of respondent.  With him on the answering

memorandum were Hardy Myers, Attorney General, and Michael D.

Reynolds, Solicitor General.





	Before Carson, Chief Justice, and Gillette, Van Hoomissen,

Durham, Kulongoski, and Leeson, Justices.





	KULONGOSKI, J.





	Ballot title certified.  This decision shall become

effective in accordance with ORAP 11.30(10).





	Durham, J., concurred and filed an opinion.





		KULONGOSKI, J.



		The issue in this original ballot title proceeding is

whether the Attorney General's certified ballot title for

proposed initiative 79 violates ORS 250.035(6).  Petitioner

asserts that the certified ballot title for proposed initiative

79 impermissibly resembles the previously filed ballot title for

proposed initiative 28, submitted for the same election, and that

ORS 250.035(6) requires this court to modify the ballot title for

proposed initiative 79 to eliminate that resemblance.



		The Attorney General certified the following ballot

title for proposed initiative 79:



"AMENDS CONSTITUTION: ESTABLISHES 2.2 PERCENT 'GROSS



RECEIPTS TAX;' PROHIBITS OTHER REVENUE SOURCES





"RESULT OF 'YES' VOTE:  'Yes' vote establishes 2.2

percent 'Gross Receipts Tax;' prohibits other state,

local revenue-generating sources.





"RESULT OF 'NO' VOTE:  'No' vote rejects 2.2 percent

'Gross Receipts Tax;' retains current state, local

revenue-generating sources.





"SUMMARY:  Amends Constitution.  Imposes 2.2 percent

tax on gross consideration received as:  employment

compensation, rent, business interest/dividends,

insurance premiums, commissions, proceeds from

sale/barter of property/services.  Exempts retirement,

pension, disability payments.  Exempts certain

incidental transactions, sales of goods/services for

use outside state, security sales, intergovernmental

transactions.  Prohibits other state and local taxes,

fees and assessments, with listed exceptions.  Allows

additional local 'gross receipts tax,' user charges,

fines, gifts, certain listed revenue sources. 

Abolishes government bonding authority.  Provides for

revenue distribution.  Changes school funding."
The previously certified ballot title for proposed initiative 28

provides:



"AMENDS CONSTITUTION:  ESTABLISHES GROSS RECEIPTS TAX,



PROHIBITS OTHER STATE AND LOCAL TAXES





"RESULT OF 'YES' VOTE:  'Yes' vote establishes 2.5

percent gross receipts tax on transactions; prohibits

other state, local taxes.





"RESULT OF 'NO' VOTE:  'No' vote rejects 2.5 percent

gross receipts tax on transactions; retains current

state, local taxes.





"SUMMARY:  Amends Constitution.  Eliminates all state,

local taxes, fees, assessments, bonding authority, with

listed exceptions.  Establishes 2.5 percent tax on

consideration received for sales or other exchanges of

materials, goods, services, labor, real estate,

personal property or things of value.  Exempts certain

banking transactions, gifts, certain noncommercial

transactions, pensions, insurance benefits, sales of

goods/services for use outside state.  Requires 60

percent vote, plus majority vote in majority of

counties/precincts voting, to increase tax, adopt local

tax, repeal or amend provision.  Provides for revenue

distribution."
		In Carlson v. Myers, 327 Or ___, ___, ___ P2d ___ (June

18, 1998) (slip op at 12), this court held that the term

"resemble," as used ORS 250.035(6), has its "plain, natural, and

ordinary meaning."  PGE v. Bureau of Labor and Industries, 317 Or

606, 611, 859 P2d 1143 (1993).  Specifically, "resemble" means

"to be like or similar, so as to suggest another or to give the

appearance of another."  Carlson, 327 Or at ___ (slip op at 12)

(internal quotation marks omitted).



		Assuming, without deciding, that the ballot titles at

issue here resemble one another, such resemblance is not fatal. 

As we explained in Carlson, 327 Or at ___ (slip op at 18), ORS

250.035(6) does not prohibit unconditionally all resemblance

between or among ballot titles.  Rather, the statute prohibits

resemblance between or among ballot titles if such resemblance

would cause voter confusion.  Id. at ___ (slip op at 18).  The

ballot titles under consideration here describe accurately two

proposed ballot measures dealing with the same issue:  the

establishment by initiative of a gross receipts tax as a

replacement for all other state and local revenue sources. 

Where, as here, similar ballot titles accurately reflect the

extensive similarities between two proposed initiative measures,

those accurate ballot titles do not create a risk of voter

confusion.  Gray v. Myers, 327 Or ___, ___, ___ P2d ___ (June 18,

1998) (slip op at 3). 



		Petitioner also asserts that the ballot title certified

by the Attorney General for proposed initiative 79 does not

substantially comply with the requirements of ORS 250.035 as

required by ORS 250.085(5), because the Attorney General failed

to discuss in the summary the "legislature's power to control

distribution of local gross receipts tax revenue" and the

"complete reorganization of school funding" undertaken by

proposed initiative 79.  That argument is not well taken.  As

petitioner concedes, proposed initiative 79 contains "so many

important provisions that, given ballot title word limitations,

it is impossible to cover all important effects" of the measure. 

Given the statutory word limitations, the Attorney General's

certified ballot title for proposed initiative 79 "substantially

complies" with the requirements of ORS 250.035.  ORS 250.085(5).



		We certify the Attorney General's ballot title for

proposed initiative 79.  



		Ballot title certified.  This decision shall become

effective in accordance with ORAP 11.30(10).



	DURHAM, J., concurring.	Huss v. Myers

	I concur in the majority's decision to certify the

Attorney General's ballot title for initiative 79, but not for

the reason expressed by the majority.  The majority asserts that

no voter confusion will result from the certification of similar

ballot titles for initiatives 28 and 79.(1)  I disagree.  However,

for the reasons expressed in my concurring opinion in Carlson v.

Myers, 327 Or ____, ____, ____ P2d ____ (1998) (Durham, J.,

concurring), I am satisfied that the Attorney General's ballot

title complies substantially with applicable statutory

requirements.  ORS 250.085(5).



	Due to the limitations of the English language, the

Attorney General cannot satisfy the requirements of ORS

250.035(2) to (5) and, at the same time, eliminate all

resemblance between the ballot titles for initiatives 28 and 79,

in literal compliance with the text of ORS 250.035(6).  The

Attorney General's ballot title confines the degree of

resemblance to the minimum.  The ballot title otherwise complies

with ORS 250.035(2) to (5).  Accordingly, I agree that this court

should certify it.



	I concur.






1. 	The majority assumes that measures 28 and 79 resemble

each other, within the meaning of ORS 250.035(6), but does not so

hold.  I adopt the same assumption.


Return to previous location.

