Oregon Advisory Opinions October 11, 1967: OAG 67-147 (October 11, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-147
Date: Oct. 11, 1967
Advisory Opinion Text
OAG 67-147.
The procedure in submitting to the electorate a proposed constitutional amendment limiting property taxes coupled with a choice between two tax plans to make up revenues lost by the amendment, raises a substantial question as to its validity under Article IV, § 1, Oregon Constitution, when, in voting for the constitutional amendment and one tax plan, a voter could enact the other tax plan to which he is opposed.
State Representative
Your request for an opinion is an outgrowth of two opinions previously written by this office, opinion No. 6316, dated June 9, 1967, and opinion No. 6349, dated September 13, 1967. In both those opinions, this office expressed some doubt as to the constitutionality of contemplated procedures for allowing the voters of the state a choice on a proposed constitutional amendment limiting property taxes, and a choice between two new tax programs to make up for the revenue lost by such a constitutional amendment.
Basically, the plans presented in the two former requests for opinion, and also the plan which you submit in connection with the request for this opinion, contemplate giving the voters a choice as to whether or not they want a constitutional amendment limiting property taxes, and if so, which of two methods (sales tax or net receipts tax) the people would choose to make up the revenues lost from such a limitation.
In the abstract, we are dealing with possible combinations of a tax limitation amendment, Tax Plan A, and Tax Plan B, and there are seven combinations which would lead to seven possible results. These are: (1) Limitation and Plan A; (2) limitation and Plan B; (3) Plan B with no limitation; (4) Plan A with no limitation; (5) limitation with no tax plan; (6) both Plan A and Plan B with a limitation; and (7) both Plan A and Plan B with no limitation.
Out of these seven possible results, by your proposed plan you are offering the people the choice among the first three results only. The voter is allowed no choice as to the other four possible results.
Your proposed plan is as follows:
"The constitutional amendment for a property tax limitation is submitted to the people at either a regular or special election. By its own terms, this constitutional amendment is not operative unless additional revenues are provided by tax A or tax B.
" Tax A is contingent upon adoption of the constitutional amendment, but is not referred for vote of the people. It carries an operative date provision similar to section 6, chapter 625, Oregon Laws 1963 (abolishing the death penalty).
" Tax B is submitted to the people as a separate question at the same election as the constitutional amendment. Tax B becomes operative regardless of the vote on the constitutional amendment. If tax B is approved by the people, tax A is repealed (either by its own terms, or by a repealer in tax B)."
You ask:
"If the measures described in this letter were referred by the 1967 special session of the Legislative Assembly to a vote of the people at a state-wide special election, would any of the objections expressed in your opinions of June 9 and September 13, 1967, remain applicable?"
The views expressed in the two prior opinions were to the effect that it was of questionable constitutional validity to require a person to express his choice upon more than one proposition combined into one question and it would also be of questionable constitutional validity if an adherent of one proposition was forced to cast a vote which would aid in passing a proposition which he specifically declared himself to be against. As a corollary to this rule, an adherent of one plan should not be forced to cast a vote which would aid in passing a plan to which he is opposed.
A simple illustration will emphasize the difficulties of the proposed plan: Two people vote in the election. The first voter wants Plan A, so he votes for the limitation and against Plan B. The second voter wants the limitation and Plan B, but does not want Plan A. He therefore votes "yes" for the limitation and "yes" for Plan B. The result is that there are two votes for the limitation, one vote for Plan B, and one vote against Plan B. The result is that the limitation is passed and Plan A is also passed, because Plan B did not get a majority of the votes. In this situation, the second voter could have killed both Plan A and the limitation by voting "no" on the limitation; however, he wanted the limitation and Plan B. The result is that by expressing his desire on the matter of the limitation, he has made operative a tax which he did not want.
In essence, a vote on the limitation is a vote on two propositions, that is, (1) shall there be a limitation, and (2) shall Tax Plan A become operative. Of course, it can be argued that since the voter can cancel out the second question of the two-pronged issue by voting for Tax Plan B, the fact remains that he cannot, with safety, vote for the limitation and for Tax Plan B without the possibility that Tax Plan A will be enacted because of his vote for the limitation, notwith
standing the fact that he has specifically voted against Tax Plan A by voting for Tax Plan B.
It is therefore my opinion that the same possible constitutional objections are present in the proposed plan as were present in those plans considered by opinions No. 6316 and No. 6349.