The opinion
Filed: June 2, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
CRAIG HANNEMAN
and GREG MILLER,
Petitioners,
v.
HARDY MYERS,
Attorney General
for the State of Oregon,
Respondent.
(SC S47456)
En Banc
On petition to review ballot title.
Argued and submitted May 15, 2000.
John A. DiLorenzo, Jr., of Hagen, Dye, Hirschy & DiLorenzo,
P.C., Portland, argued the cause and filed the petition for
petitioners.
David F. Coursen, Assistant Attorney General, Salem, argued
the cause and filed the answering memorandum for respondent.
With him on the answering memorandum were Hardy Myers, Attorney
General, and Michael D. Reynolds, Solicitor General.
GILLETTE, J.
Ballot title certified as modified. This decision shall
become effective in accordance with ORAP 11.30(10).
Van Hoomissen, J., dissented and filed an opinion.
GILLETTE, J.
This ballot title review proceeding brought under ORS
250.085(2) concerns the Attorney General's certified ballot title
for Initiative Petition 163 (2000). Petitioners are electors who
timely submitted written comments to the Secretary of State
concerning the content of 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). We review
the Attorney General's certified ballot title to determine
whether it substantially complies with the requirements of ORS
250.035(2) to (6) (1997). (1) ORS 250.085(5).
The proposed measure, denominated by its proponents as
the "Timber Tax Equity and Accountability Act," would enact new
timber taxation provisions. Section I contains findings that
purport to justify the substantive sections of the measure.
Section II contains a declaration of policy. Section III, which
is the substantive part of the measure, contains seven
subsections. Of those subsections, the most important are
subsection (A) (imposing a tax of 1 cent per board foot on the
clearcutting of "immature" conifers for each year that the
conifers are less than 80 years of age); subsection (B) (imposing
an additional tax of 1 cent per board foot for each year of age
if conifers or hardwood trees are harvested at less than 80 years
of age and from within 100 feet of certain streams; subsection
(C) (exempting the first $250,000 of yearly conifer harvest
proceeds from non-riparian areas from the tax imposed by
subsection (A) and the first $25,000 of yearly conifer and
hardwood proceeds from the tax imposed by subsection (B)); and
subsection (E) (providing that the taxes imposed by subsections
(A) and (B) "shall be in addition to any taxes already charged,
property or harvest, by the Oregon Department of Revenue or by
any county"). Section IV of the proposed measure contains
definitions for the measure.
The Attorney General certified the following ballot
title for the proposed measure:
"IMPOSES TAXES ON CERTAIN TIMBER HARVESTING
PRACTICES; ESTABLISHES EXEMPTIONS, CREDITS
"RESULT OF 'YES' VOTE: 'Yes' vote taxes harvesting
trees of specified ages, locations, minimum harvest
proceeds; establishes exemptions, credits.
"RESULT OF 'NO' VOTE: 'No' vote rejects taxing
harvesting trees of specified ages, locations, minimum
proceeds, establishing exemptions, credits.
"SUMMARY: 1999 legislation phased in timber
harvest tax exemption for parcels 5000 acres or larger.
Measure taxes gross harvest proceeds above $250,000 one
cent per board foot per year of harvested tree age
under 80. Limited exemption for harvest not exceeding
40% of timber on acre. Exempts Christmas trees,
specified hardwoods. Provides tax credits for not
harvesting on parcels exceeding 20 acres with average
tree age at least 65. Additionally taxes harvesting
trees under 80 years old within 100 feet of streams.
Other provisions."
Petitioners attack all three parts of the Attorney
General's certified ballot title on various grounds. We find
their criticisms of the result statements and the summary to be
well taken.
Petitioners assert that the Attorney General's result
statements fail to comply substantially with the requirements of
ORS 250.035(2)(b) and (c) (1997) in that they are misleading in
their use of the word "proceeds" to describe what is taxed. The
pertinent part of the "yes" result statement states that the
measure "taxes * * * minimum harvest proceeds." That statement
is erroneous, petitioners assert, because it implies that the tax
imposed would be on the revenues received from harvesting trees,
rather than on the board feet harvested. Petitioners are
correct. Although the exemption in section III (C) of the
proposed measure is stated in terms of "harvest proceeds," the
tax will be imposed without regard to the amount of proceeds (if
any) that are generated by the particular harvest. We resolve
that problem with the Attorney General's "yes" result statement
by removing the phrase, "minimum harvest proceeds," from the
statement.
Petitioners assert that the "no" result statement is
deficient for the same reason that the "yes" statement is
deficient. We agree. There are two ways in which that problem
could be remedied. The first way would be to strike the words
"minimum proceeds" from the "no" result statement. The second
way would be to abandon the Attorney General's parallel
construction of the two result statements and to substitute a
statement that a "no" vote would leave in place the present
taxing scheme applicable to timber harvesting. As our discussion
of the Attorney General's summary, post , makes clear, we believe
that the latter approach would provide the voters with more
information. Accordingly, we substitute the following "no"
result statement: "'No' vote retains present system of taxation
of timber harvests."
Finally, petitioners assert that the Attorney General's
summary is deficient under ORS 250.035(2)(d) (1997), because it
fails to state that the taxes imposed by the measure would be in
addition to any other tax imposed on timber harvesting.
Petitioners argue that if the first sentence of the Attorney
General's summary -- which uses 14 words to describe a 1999
legislative act that is only tangentially relevant to the present
proposed measure -- is deleted, then there is room in the summary
to explain that the taxes that would be imposed if the measure
were to pass would be in addition to any other tax imposed on
timber harvesting. We agree that is it more important for the
summary to explain that consequence than it is to provide the
legislative background that is contained in the first sentence of
the Attorney General's summary. Accordingly, we delete the first
sentence and insert, within the body of the summary, the
following sentence: "Taxes are in addition to any other state or
county tax presently imposed." In addition, we make certain
editorial changes in the summary to eliminate the same inaccuracy
respecting "proceeds" that we have described in the "yes" and
"no" result statements.
We have considered each of petitioners' other arguments
concerning the ballot title certified by the Attorney General and
have concluded that none is well taken. We certify to the
Secretary of State the following ballot title:
IMPOSES TAXES ON CERTAIN TIMBER HARVESTING
PRACTICES; ESTABLISHES EXEMPTIONS, CREDITS
RESULT OF "YES" VOTE: "Yes" vote taxes harvesting
trees of specified ages, locations; establishes
exemptions, credits.
RESULT OF "NO" VOTE: "No" vote retains present
system of taxation of timber harvests.
SUMMARY: Measure taxes timber harvest one cent per
board foot per year of harvested tree age under 80.
Exempts first $250,000 in proceeds. Taxes are in
addition to any other state or county tax presently
imposed. Limited exemption for harvest not exceeding
40% of timber on acre. Also exempts Christmas trees,
specified hardwoods. Provides tax credits for not
harvesting on parcels exceeding 20 acres with average
tree age at least 65. Additionally taxes harvesting
trees under 80 years old within 100 feet of streams.
Other provisions.
Ballot title certified as modified. This decision
shall become effective in accordance with ORAP 11.30(10).
VAN HOOMISSEN, J., dissenting.
I respectfully dissent. In my view, the Attorney
General's certified ballot title substantially complies with the
requirements of ORS 250.035 (1997). ORS 250.085(5).
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 proposed measure is one of those to which the 1999 act does
not apply. We therefore apply the pertinent provisions of ORS
250.035 (1997).
Return to previous location .