Parrish v. Ellen Rosenblum

96 October 25, 2017 No. 57

IN THE SUPREME COURT OF THE
STATE OF OREGON

Julie PARRISH,
Sal Esquivel,
and Cedric Hayden,
Petitioners,
v.
Ellen F. ROSENBLUM,
Attorney General,
State of Oregon,
Respondent.
(SC S065300)

En Banc
On petition to review ballot title filed September 27, 2017;*
considered and under advisement on October 13, 2017.
Eric C. Winters, Wilsonville, filed the petition and reply
for petitioners.
Carson L. Whitehead, Assistant Attorney General,
Salem, filed the answering memorandum for respondent.
With him on the answering memorandum were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter
PC, Portland, filed the memorandum for amicus curiae
Melissa Unger.
BALMER, C. J.
The ballot title is referred to the Attorney General for
modification. Pursuant to ORAP 1.20(5) and notwith-
standing ORAP 9.25, ORAP 11.30(10), ORAP 16.25(1), and
ORAP 16.60(1), the State Court Administrator shall issue
the appellate judgment at 4:00 p.m. on October 26, 2017,

______________
* Ballot title for Referendum Petition 301 (2018), prepared by the Joint
Legislative Committee for RP 301 on September 20, 2017.
Cite as 362 Or 96 (2017) 97

unless a petition for reconsideration is both filed and physi-
cally received by the Office of the State Court Administrator
by that time. Any timely petition for reconsideration will
stay issuance of the appellate judgment until the court acts
on such petition.
Case Summary: Petitioners challenged all parts of the ballot title prepared
by a joint legislative committee for Referendum Petition (RP) 301 (2018). RP 301
incorporated certain sections of a more extensive bill enacted during the 2017
legislative session, House Bill (HB) 2391. The sections in RP 301 would impose
temporary assessments on insurers, managed care organizations, the Public
Employees’ Benefit Board, and certain hospitals; and would permit insurers to
increase premium rates. The assessments, as originally included in HB 2391,
would provide funding for a new reinsurance program and the Oregon Health
Plan. Held: The caption, the result statements, and the summary do not substan-
tially comply with ORS 250.035(2).
The ballot title is referred to the Attorney General for modification. Pursuant
to ORAP 1.20(5) and notwithstanding ORAP 9.25, ORAP 11.30(10), ORAP
16.25(1), and ORAP 16.60(1), the State Court Administrator shall issue the
appellate judgment at 4:00 p.m. on October 26, 2017, unless a petition for recon-
sideration is both filed and physically received by the Office of the State Court
Administrator by that time. Any timely petition for reconsideration will stay issu-
ance of the appellate judgment until the court acts on such petition.
98 Parrish v. Rosenblum

BALMER, C. J.

Petitioners seek review of the ballot title prepared
for Referendum Petition (RP) 301 (2018). They contend that
the caption, the “yes” and “no” result statements, and the
summary do not comply with requirements set out in ORS
250.035(2). We review the ballot title to determine whether it
substantially complies with those requirements. See Senate
Bill (SB) 229 (2017), § 58(4) (setting out that standard).1 For
the reasons explained below, we agree with some of petition-
ers’ contentions, but disagree with others. We conclude that
each part of the ballot title requires modification, and we
refer it to the Attorney General for that purpose. See id. at
§ 58(6) (explaining modification referral process).

I. BACKGROUND

We begin by providing some background and a
summary of RP 301. During the 2017 session, the legisla-
ture passed House Bill (HB) 2391.2 Among other things,
that bill created a new Health System Fund, which would
pay the cost of administering a new Oregon Reinsurance
Program, provide additional funding for medical assistance
and health services to low-income individuals and families
under ORS chapter 414, and make other payments. HB
2391, § 2; ORS ch 414.3 The bill then imposed temporary,
two-year assessments on insurance premiums or premium
equivalents received by insurers (section 5(2)), managed
care organizations (section 9(2)), and the Public Employees’
Benefit Board (section 3(2)), that would be paid into the
State Treasury and credited to the fund. See id. at §§ 3 -
5, 7, 11 - 13 (imposing assessments, directing payments

1
  SB 229 will appear in the 2017 session laws as Oregon Laws 2017, chap-
ter 749. Oregon Laws 2017, Regular Session, Tables, Senate and House Bills
Enacted, A-1.
2
 HB 2391 will appear in the 2017 session laws as Oregon Laws 2017,
chapter 538. Oregon Laws 2017, Regular Session, Tables, Senate and House Bills
Enacted, A-3.
3
  The stated purpose of the new Oregon Reinsurance Program is to stabilize
rates and premiums for individual health benefit plans, and to provide greater
certainty to consumers. HB 2391 §§ 17-25. The funding under ORS chapter 414 is
for the Oregon Health Plan.
Cite as 362 Or 96 (2017) 99

and credits, and establishing timelines).4 The bill further
provided, in section 8(2), that insurers may increase their
premium rates by 1.5 percent on policies subject to the tem-
porary assessment on insurers. Also, in section 27(2)(2),
the bill imposed a temporary assessment on the net reve-
nue of certain hospitals, to be paid to the Oregon Health
Authority. Id. at §§ 27 - 28 (imposing assessment, directing
payment, and setting out related amendments); § 29 (remov-
ing assessment at later date); §§ 44, 51 (setting out opera-
tive and effective dates).5 The Governor signed the bill on
July 3, 2017, and it was scheduled to go into effect, with
some delayed operative dates, on October 6, 2017.
Two days after the Governor signed HB 2391, peti-
tioners filed with the Secretary of State a referendum peti-
tion, which the Secretary numbered as RP 301 and which is
set out as an Appendix to this opinion. RP 301 would refer to
the people for a vote certain sections of HB 2391—sections
3(2) and (4); 5(2) and (4); 9(2) and (5); and 27(2)(2)—that
impose the temporary assessments described above, as well
as section 8(2), which permits insurers to increase their
premium rates.6 See generally Or Const, Art IV, § 1(3)(a) -
(b) (describing people’s referendum power and process). The
timelines for a potential referendum vote, and the related
ballot title process, are governed by a different bill enacted
during the 2017 session, SB 229. That bill provides that, if
any part or all of HB 2391 is referred to the people, then a
special election will be held on January 23, 2018. SB 229,
§ 55(1)(a)(A). Under applicable constitutional provisions,
petitioners were required to gather and submit a suffi-
cient number of signatures before October 6. See Or Const,
4
  HB 2391 defines a “premium equivalent” as a claim for reimbursement
of the cost of a health care item or service provided to an eligible employee or
family member, plus administrative costs and excluding certain items. HB 2391,
§ 3(1)(b).
5
  Those funds reimburse hospitals for the cost of providing care to Oregon
Health Plan recipients, pay for services provided in the Oregon Health Plan, and
pay administrative costs. Or Laws 2003, ch 736, § 9.
6
  Due to this referendum effort, the sections of HB 2391 contained in RP 301
have not yet gone into effect. HB 2391 contained numerous other provisions not at
issue here—some described above—that took effect on October 6, 2017. HB 2391,
§ 51. Several of those provisions have delayed operative dates. HB 2391, §§ 43-46.
See also Or Const, Art IV, § 1(4)(d) (referendum on part of an act does not delay
remainder of act from becoming effective).
100 Parrish v. Rosenblum

Art IV, § 1(3)(a) (referendum power may be exercised as to
acts not effective earlier than 90 days after end of session);
§ 1(4)(a) (setting out 30-day signature verification timeline
for Secretary of State). The Secretary of State has confirmed
that petitioners submitted a sufficient number of valid sig-
natures and that RP 301 therefore will be on the ballot at a
special election in January, as Measure 101 (2018).7
After RP 301 was filed, a joint legislative commit-
tee prepared a ballot title and filed it with the Secretary of
State. See SB 229, § 55(3) (establishing process). The ordi-
nary word limits for ballot titles do not apply; however, the
content requirements for each element of a ballot title for
a state measure—set out in ORS 250.035(2) and discussed
further below—do apply. Id. at §§ 55(3), 58(1). We review the
ballot title for substantial compliance with those require-
ments. Id. at § 58(4). If we determine that modification is
required, then we may refer the ballot title to the Attorney
General for modification. Id. at § 58(6).
The joint legislative committee prepared the follow-
ing ballot title for RP 301:
“PROVIDES FUNDS CURRENTLY BUDGETED TO PAY
FOR HEALTH CARE FOR LOW-INCOME INDIVIDUALS
AND FAMILIES AND FOR STABILIZING HEALTH
INSURANCE PREMIUMS, USING TEMPORARY
ASSESSMENTS ON INSURANCE COMPANIES, SOME
HOSPITALS AND OTHER PROVIDERS OF HEALTH
INSURANCE OR HEALTH CARE COVERAGE.
“RESULT OF ‘YES’ VOTE: ‘Yes’ vote provides funds that
are currently budgeted to pay for health care for low-
income individuals and families and individuals with dis-
abilities and to stabilize premiums charged by insurance
companies for health insurance purchased by individuals
and families. Approves temporary assessments on insur-
ance companies, some hospitals, the Public Employees’
Benefit Board and managed care organizations to pro-
vide the funds. Specifies that insurance companies may
not increase rates on health insurance premiums by more

7
  See Oregon Secretary of State, January 2018 Special Election Announcement
(Oct 16, 2017), http://www.oregon.gov/newsroom/Pages/NewsDetail.aspx?newsid
=2358 (accessed Oct 23, 2017).
Cite as 362 Or 96 (2017) 101

than 1.5 percent as a result of the assessment. Provides
that the hospital assessment may not begin without the
approval of a federal agency.

“RESULT OF ‘NO’ VOTE: ‘No’ vote underfunds budgeted
costs for providing health care to low-income individuals
and families and individuals with disabilities and for sta-
bilizing premiums charged by insurance companies for
health insurance purchased by individuals and families.
Rejects temporary assessments on insurance companies,
the Public Employees’ Benefit Board and managed care
organizations. Delays until the later of January 1, 2018,
or the date of approval by a federal agency, the temporary
assessment on some hospitals.

“SUMMARY: This measure asks voters to approve or
reject five parts of House Bill 2391, enacted by the 2017
Oregon Legislature to address certain health care funding
issues. House Bill 2391 provided funding to pay costs for
providing health care to low-income adults, children, fam-
ilies and individuals with disabilities, and to stabilize pre-
miums charged by insurance companies for health insur-
ance purchased by individuals and families. House Bill
2391 provided the funding through a 1.5 percent assess-
ment on premiums and premium equivalents (defined)
of health insurance companies, the Public Employees’
Benefit Board and managed care organizations for a two-
year period, and an additional 0.7 percent assessment on
the net revenue of some hospitals that begins on October 6,
2017, and ends on July 1, 2019. This measure asks voters
to approve or reject the assessments on insurance compa-
nies, the Public Employees’ Benefit Board and managed
care organizations and only the portion of the hospital
assessment that is in effect from October 6, 2017, through
the later of January 1, 2018, or the date a federal agency
approves other changes to the assessment made by House
Bill 2391. The measure does not ask voters to approve or
reject the portions of the hospital assessment that are in
effect beginning on the later of January 1, 2018, or the
date of federal agency approval.”

Petitioners object to all parts of the ballot title. In response,
the Attorney General and amicus Unger contend that the
ballot title substantially complies with statutory require-
ments. We address their contentions below.
102 Parrish v. Rosenblum

II. ANALYSIS

A.  Caption

We begin with the caption, which must “reasonably
identif[y] the subject matter” of RP 301. ORS 250.035(2)(a).
Petitioners contend that the caption fails to satisfy that
standard in several ways. First, the caption does not reason-
ably identify the temporary assessments imposed in sections
3(2), 5(2), 9(2), and 27(2)(2) of HB 2391 (now contained in
RP 301), nor the authority for insurers to increase premi-
ums in section 8(2). Second, the caption is a long, run-on
sentence that obscures those “direct subjects” of RP 301 by
inappropriately magnifying and focusing on “secondary and
speculative” effects—that is, programs that “may be funded”
under HB 2391 (emphasis petitioners’). Third, to more accu-
rately describe the temporary assessments, the caption
should use the word “tax.” Petitioners contend that the cap-
tion is “fundamentally flawed and should be discarded.” The
Attorney General and amicus Unger respond that the cap-
tion appropriately explains that the revenue from the tem-
porary assessments will fund certain programs budgeted in
HB 2391, and they also disagree with petitioners’ remaining
contentions.

The “subject matter” of a proposed measure, ORS
250.035(2)(a), refers to its “actual major effect” or, “if the
measure has more than one major effect, all such effects”
within any applicable word limit. Whitsett v. Kroger, 348 Or
243, 247, 230 P3d 545 (2010). “To determine the subject mat-
ter of a proposed measure, we first examine its words and
the changes, if any, that the proposed measure would enact
in the context of existing law.” Kain/Waller v. Myers, 337 Or
36, 41, 93 P3d 62 (2004). As explained, the ballot title for
RP 301 has no applicable word limit, but its caption none-
theless must state or describe the subject matter accurately,
“in terms that will not confuse or mislead potential petition
signers and voters.” Greene v. Kulongoski, 322 Or 169, 175,
903 P2d 366 (1995). For the reasons explained below, we
agree with petitioners that the ballot title caption for RP
301 does not substantially comply with ORS 250.035(2)(a),
in two ways.
Cite as 362 Or 96 (2017) 103

We begin with the text of RP 301. That measure
is not a referendum on HB 2391 in its entirety, but instead
includes only certain sections of the bill. The major, immedi-
ate effect based on the text alone—that is, the new law that
RP 301 would enact—is the imposition of new, temporary
assessments (sections 3(2), 5(2), 9(2), and 27(2)(2)), and the
related grant of authority to insurers to increase insurance
premiums (section 8(2)). The temporary assessments are
generally described in the second part of the caption.
When considered in the context of existing law,
another major effect is apparent: Once approved, the new
temporary assessments would work together with the other
provisions of HB 2391, such that the incoming revenue would
be directed to the Health System Fund or the Oregon Health
Authority to pay for—as described in the caption—“health
care for low-income individuals and families,” and “stabiliz-
ing health insurance premiums.” Indeed, it appears that,
without most of the temporary assessments, the Health
System Fund would lose the revenue sources created in HB
2391.8 We disagree with petitioners that those effects on the
intended operation of HB 2391 are merely “speculative.” To
the contrary, those substantial effects are intertwined with
the new assessments and are appropriately included in the
caption. See generally Kain/Waller, 337 Or at 41-44 (mea-
sure that would impose broad property tax cap had effect of
significantly altering existing tax structure; caption must
describe that effect); cf. Caruthers v. Myers, 343 Or 162, 166
P3d 514 (2007) (approving caption that described only pro-
posed new tax exemption but not predicted effect on existing
tax revenues and funded programs; measure concerned lim-
ited tax exemption for only certain property owners, without
any structural tax implications).
Underlying petitioners’ arguments, however, is the
proposition that the caption obscures the immediate, major
effect that flows directly from the text of RP 301: imposi-
tion of new temporary assessments. As written, the caption
8
  A different part of HB 2391, not at issue here, provides some conditional
initial funding for the Health System Fund. HB 2391, § 42. The record suggests,
however, that all anticipated incoming revenue for the fund would derive from
the temporary assessments on insurers, managed care organizations, and the
Public Employees’ Benefit Board.
104 Parrish v. Rosenblum

first emphasizes with some detail the programs designed
to benefit from “currently budgeted” revenue generated by
the assessments and then states, in a secondary manner,
that those programs would be funded by “using” the assess-
ments. That framing has the potential of misleading vot-
ers, by suggesting that the assessments already exist. See
McCormick v. Kroger/Devlin, 347 Or 293, 299, 220 P3d 412
(2009) (caption that stated that a proposed tax increase
would “maintain[ ]” budgeted funds for particular govern-
mental services did not accurately convey that referendum
would provide additional new revenue); Fred Meyer, Inc. v.
Roberts, 308 Or 169, 174, 777 P2d 406 (1989) (caption did not
reasonably identify measure’s subject, because it may have
led voters to think that they were simply being asked to con-
firm existing law).

Also, as petitioners suggest, the caption as written
may confuse or mislead voters, by including a lengthy—and
difficult to read—description of programs funded in HB
2391 before describing the new temporary assessments that
would fund them. We agree that the immediate, direct effect
of RP 301 must be more prominently, and also accurately,
explained. The caption therefore must be modified, so that
it clearly conveys to voters that RP 301 would impose new
temporary assessments that would fund certain programs.
See generally Kendoll v. Rosenblum, 358 Or 282, 289, 364
P3d 678 (2015) (referring caption that was “unnecessarily
difficult to understand” and, therefore, did not “sufficiently
explain the subject matter”).

Petitioners also contend that the subject matter of
RP 301 includes not only the temporary assessments, but also
the authority granted to insurers in section 8(2) to increase
their premium rates on policies subject to the assessments
on insurers. The caption, however, does not mention that
aspect of the subject matter at all; instead, it refers to only
the assessments. As noted above, we agree with petitioners
that the authority to increase premiums set out in section
8(2) is also a major effect of RP 301. Particularly given that
no word limit applies to the caption, it must be modified to
reasonably identify that additional subject matter set out in
section 8(2). See Kendoll, 358 Or at 288-89 (2015) (caption
Cite as 362 Or 96 (2017) 105

should highlight, for potential voters, “significant compo-
nent of the subject matter” reflected in express text enacting
change to current law); Towers v. Myers, 341 Or 357, 361,
142 P3d 1040 (2006) (caption that described only one of sev-
eral changes that proposed measure would make to existing
law was impermissibly underinclusive).
Petitioners also argue that the caption’s general
description of the temporary assessments—”temporary
assessments on insurance companies, some hospitals and
other providers of health insurance or health care cover-
age”—does not reasonably identify the types and amounts
of the assessments, and who must pay them. Petitioners
are correct that sections 3(2), 5(2), 9(2), and 27(2)(2) of HB
2391, as set out in RP 301, more specifically identify cer-
tain entities as subject to new temporary assessments des-
ignated at particular rates.9 A ballot title caption, however,
need not convey that level of specificity, so long as the subject
matter is accurately conveyed in an understandable way.
We conclude that the more general description of the tempo-
rary assessments in the caption substantially complies with
the “subject matter” requirement of ORS 250.035(2)(a). See
Blosser/Romain v. Rosenblum (IP 45), 358 Or 295, 300-01,
365 P3d 525 (2015) (approving general wording in caption
and rejecting argument for more specific wording, more
appropriately used in other parts of ballot title); McCann/
Harmon v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014)
(“[a]t times, it may be necessary to describe [measure’s]
effects generally”).
Finally, petitioners argue that the caption’s use of
the term “temporary assessments” does not sufficiently con-
vey the subject matter of RP 301 because, in essence, the
assessments are actually “taxes.” As petitioners put it, an
9
  Those sections impose the following assessments:
•  Public Employees’ Benefit Board, 1.5 percent of gross amount of premium
equivalents received during calendar quarter (section 3(2));
•  Insurers, 1.5 percent of gross amount of premiums earned during cal-
endar quarter, derived from health benefit plans delivered or issued for
delivery in Oregon (section 5(2));
•  Managed care organizations, 1.5 percent of gross amount of premium
equivalents received during calendar quarter (section 9(2)); and
•  Certain hospitals, 0.7 percent on net revenue (section 27(2)(2)).
106 Parrish v. Rosenblum

“assessment” based on a percentage of net revenue (or on
insurance premium earnings or equivalents) “is a tax in
every normative sense of the word,” and the revenue-rais-
ing mechanism set out in the identified provisions possesses
“the essential features” of levying a tax. Petitioners add that,
before funds generated by the assessments can be “use[d]”
to provide funding for various purposes described in the
caption, they first must be collected, and the “means of col-
lecting them in RP 301 are taxes.” They also argue that use
of the word “assessments” alone has little value and, without
the additional or substitute term “tax,” will mislead voters.
The Attorney General and amicus Unger disagree
with those arguments, as do we. RP 301 itself characterizes
the payments required under sections 3(2), 5(2), (9)(2), and
27(2)(2) as “assessment[s],” not “taxes.” See RP 301 (incor-
porating HB 2391, sections 3(4), 5(4), and 9(5), all provid-
ing that “[t]he assessment imposed under this section is in
addition to and not in lieu of any tax, surcharge or other
assessment imposed on [the same type of entity]” (emphasis
added); and incorporating section 27(2)(2), which imposes
additional “assessment” on certain hospitals). And, in the
context of the ballot title, it is apparent that the purpose
of the temporary assessments is to provide funding for cer-
tain programs. It follows that use of the term “assessments,”
drawn from RP 301 itself, would not confuse or mislead vot-
ers, and does not fall short of the substantial compliance
standard. See Dale v. Kulongoski, 322 Or 240, 242-43, 905
P2d 844 (1995) (approving caption that incorporated com-
monly understood term that was drawn from measure’s
text, “bills for raising revenue”; rejecting argument that
“bills enacting taxes” should be used, instead); Bernard v.
Keisling, 317 Or 591, 596-97, 858 P2d 1309 (1993) (approv-
ing caption’s use of term “fee,” drawn from measure’s text,
instead of “tax”); cf. McCann v. Rosenblum, 355 Or 256,
261-62, 323 P3d 955 (2014) (approving caption’s use of “tax”
in lieu of measure’s wording, “fee,” when meaning of “fee”
would raise substantial questions). Stated differently, this is
not a situation in which the use of technical, legal, or unique
wording drawn from the measure’s text results in a caption
that is impermissibly misleading or confusing. Cf. Caruthers
v. Myers, 344 Or 596, 600, 189 P3d 1 (2008) (using words of
Cite as 362 Or 96 (2017) 107

proposed measure itself in caption to describe subject matter
does not always result in “accurate and neutral” description);
Tauman v. Myers, 343 Or 299, 302-04, 170 P3d 556 (2007)
(term drawn directly from proposed measure can impermis-
sibly confuse voters, when measure defines term differently
from commonly understood meaning). In that respect, the
caption substantially complies with ORS 250.035(2)(a).
B.  “Yes” Result Statement
Petitioners next challenge the “yes” result state-
ment, generally arguing that it has “similar flaws” as the
caption. See ORS 250.035(2)(b) (“yes” result statement must
set out “[a] simple and understandable statement * * * that
describes the result” if a proposed measure is approved);
McCann/Harmon, 354 Or at 707 (“yes” result statement
“should describe the most significant and immediate effects
of the ballot initiative for the general public” (internal quo-
tation marks omitted)). As discussed above, we agree that
the “yes” result statement does not substantially comply
with ORS 250.035(2)(b) because it must more prominently,
and also accurately, explain the immediate, direct result of
voting “yes” on RP 301—imposition of the new temporary
assessments and insurer authority to increase premiums.
We therefore refer the “yes” result statement to the Attorney
General for modification.
C.  “No” Result Statement
Next, petitioners challenge the “no” result state-
ment, first raising the same argument as with the “yes”
result statement. See ORS 250.035(2)(c) (“no” result state-
ment must be “[a] simple and understandable statement * * *
that describes the result” if a proposed measure is rejected).
We agree, as explained regarding the caption and the “yes”
result statement, that the “no” result statement does not
substantially comply with ORS 250.035(2)(c) and must be
modified accordingly.
Petitioners also argue that the final sentence of the
“no” result statement impermissibly includes “speculative
operational dates” for the temporary assessment on hospi-
tals, set out in section 27(2)(2) of HB 2391 and RP 301. That
sentence provides:
108 Parrish v. Rosenblum

“Delays until the later of January 1, 2018, or the date of
approval by a federal agency, the temporary assessment on
some hospitals.”
That sentence conveys that, if the voters reject RP 301,
with the effect of removing section 27(2)(2) from HB 2391,
then the temporary assessment on hospitals still would be
imposed, but would be delayed until the later of two alter-
native dates.
Petitioners’ argument arises from a dispute about
the legal significance of the fact that all or part of a different
section of HB 2391—section 28—was not incorporated into
RP 301, along with section 27(2)(2). We first explain that
issue, to provide context for petitioners’ argument that the
final sentence of the “no” result statement is impermissi-
bly speculative and therefore does not substantially comply
with ORS 250.035(2)(c).
Section 27(2)(2) of HB 2391, contained in RP 301,
would impose a temporary assessment on each hospital in
the state, with certain hospitals excluded. Under HB 2391
as originally written and absent this referendum effort, that
section would have become effective on October 6, 2017. HB
2391, § 51. Section 28 of HB 2391 repeats the full text of
section 27, but then amends some of its provisions, including
section 27(2)(2). That amendment, however, does not change
the text that imposed the temporary assessment on hospi-
tals; instead, it changes the text describing the categories
of hospitals that are excluded from those assessments. HB
2391, § 28(2)(2).10 As to operability, the amendments to sec-
tion 27, set out in section 28, are conditioned on whether the
10
  Section 27(2)(2) of HB 2391 provides, in part:
“* * * [A]n assessment of 0.7 percent is imposed on the net revenue of each
hospital in this state that is not a waivered hospital.”
Section 28(2)(2) amends that provision as follows (deleted text in [brackets/
italics]; new text in {braces/boldface}):
“* * * [A]n assessment of 0.7 percent is imposed on the net revenue of each
hospital in this state that is not a [waivered hospital]{type A hospital or
type B hospital}.”
“Type A” and “type B” hospitals are small, rural hospitals; “type A” hospitals
are more than 30 miles from another acute inpatient care facility, whereas “type
B” hospitals are 30 miles or less from such a facility. See HB 2391, §§ 26(5)-(6)
(referring to existing statutory definitions); ORS 442.470(5)(a)(A), (B) (setting
out definitions).
Cite as 362 Or 96 (2017) 109

Centers for Medicare and Medicaid Services (CMS) of the
federal Department of Health and Human Services takes a
certain action that pertains to the updated categories identi-
fied in section 28(2)(2). If CMS takes that action, then all of
section 28 becomes operative on the later of either January 1,
2018, or the date that CMS acts. HB 2391, § 44(1)(a).11
Finally, another section of HB 2391 that is not contained in
RP 301—section 29(2)—amends both sections 27(2)(2) and
28(2)(2), to remove the temporary assessment on hospitals
entirely. Section 29 becomes operative on July 1, 2019. HB
2391, § 44(1)(c).
Thus, as HB 2391 was originally enacted by the
legislature, the temporary assessment on hospitals set out
in section 27(2)(2), with the original exclusion provision,
would have gone into effect on October 6, 2017. That tem-
porary assessment was intended to continue until July 1,
2019, when section 29 becomes operative and eliminates the
assessment. However, the categories of hospitals excluded
from the temporary assessment might change at an earlier
date, if CMS takes the identified predicate action that trig-
gers the operability of section 28(2)(2). That earlier date
would be the later of January 1, 2018, or the date that CMS
takes action.

A “waivered hospital” is one that is either type A or type B, or one that provides
only psychiatric care, or others that have obtained waivers from a longstanding
hospital assessment that is different from the temporary assessment at issue
in RP 301. Or Laws 2003, ch 736, § 1(5), as amended by Or Laws 2009, ch 792,
§ 34(5).
11
  HB 2391, § 44(1) provides, in part:
“If the [CMS] permits the state to impose the assessment under section 2,
chapter 736, Oregon Laws 2003, on type A hospitals and type B hospitals and
to exclude from the assessment public hospitals other than health district
hospitals:
“(a)  * * * [T]he amendments to sections 1, 2 and 9, chapter 736, Oregon
Laws 2003, by sections 26, 28 and 34 of this 2017 Act become operative on the
later of:
“(A)  January 1, 2018; or
“(B)  The date of the approval by the [CMS].”
The temporary assessment on hospitals imposed in section 27(2)(2) of HB 2391
is a supplement to a previously enacted assessment originally set out in Oregon
Laws 2003, chapter 736, section 2. See HB 2391, § 27 (setting out subsequent
history of Oregon Laws 2003, chapter 736, section 2). The pending, conditional
CMS action—described in the just-quoted section of HB 2391—relates to that
previously enacted assessment.
110 Parrish v. Rosenblum

The last sentence of the “no” result statement is
based on the following theory, if the voters reject RP 301
and thus remove section 27(2)(2) from HB 2391: (1) No
part of section 28 is included in RP 301; (2) section 28(2)(2)
therefore would go into effect, even if RP 301 is rejected,
so long as CMS takes action; (3) that section sets out and
incorporates, as previously enacted law, the temporary
assessment on hospitals imposed in section 27(2)(2); there-
fore, (4) even without section 27(2)(2), that assessment still
would be permitted under section 28(2)(2); but (5) it would
begin according to the conditional and alternative time-
lines provided for section 28(2)(2) (the later of January 1,
2018, or the date that CMS takes action), instead of the
timeline for section 27(2)(2) (originally, October 6, 2017;
now dependent on RP 301). Petitioners argue that that the-
ory is speculative and may be incorrect; more expressly,
if section 27(2)(2) is removed from HB 2391 by virtue of
a “no” vote on RP 301, section 28(2)(2) might not operate
to “resuscitate[ ]” the temporary assessment on hospitals.
The Attorney General counters that the theory reflected
in the “no” result statement is not speculative, and she
states that, once section 28 becomes operative, the tempo-
rary hospital assessment “authorized” and “imposed” in
that section will “supersede” the assessment authorized in
section 27. Amicus Unger similarly contends that the “no”
statement describes “an actual result” that will occur if RP
301 is rejected.
This court has explained that, when reviewing a
ballot title, it is not the court’s task to “definitively inter-
pret the proposed measure” and, “[w]hen the legal effect of
a measure is unclear, we will not speculate about it.” Conroy
v. Rosenblum, 358 Or 807, 815, 371 P3d 1180 (2016), mod-
ified ballot title referred, 359 Or 601, 380 P3d 299 (2016);
see also Wolf v. Myers, 343 Or 494, 500, 173 P3d 812 (2007)
(when parties reasonably dispute meaning of provision in
proposed measure, that dispute may lead to disagreement
about result). Applying those principles here, we agree with
petitioners that the “no” result statement should not convey,
as a definitive statement, that the temporary assessment on
hospitals still will be imposed, but delayed based on federal
agency action. Whether or not that temporary assessment
Cite as 362 Or 96 (2017) 111

would continue to be imposed if section 27(2)(2) is rejected
by the voters is a legal question that relates to the amenda-
tory wording of section 28(2)(2) of HB 2391 in light of RP
301—a question more appropriately left to a later day, if RP
301 is rejected. See generally State ex rel Caleb v. Beesley, 326
Or 83, 88, 949 P2d 724 (1997) (absent clear indication to the
contrary, a statute incorporated within an amendatory act
is deemed neither repealed nor reenacted merely by being
so incorporated); State v. McGinnis, 56 Or 163, 165, 108 P
132 (1910) (restated wording in an amendatory act is con-
sidered part of the original statute, whereas only the new
additions are regarded as a new enactment); see also Rooney
v. Kulongoski (Elections Division #13), 322 Or 15, 41, 902
P2d 1143 (1995) (not court’s role to engage in abstract exer-
cise of preenactment interpretation; proponents and oppo-
nents remain free to emphasize purported effects or point
to possible ambiguities). The “no” result statement therefore
must be modified so that it does not convey that, if RP 301 is
rejected, the temporary assessment on hospitals still would
be imposed, but delayed.
D.  Summary
Petitioners raise two challenges to the summary,
which must contain a “concise and impartial statement * * *
summarizing the * * * measure and its major effect.” ORS
250.035(2)(d). First, they argue that, as with the “no” result
statement, the last two sentences of the summary imper-
missibly set out the same speculative theory about the tem-
porary assessment on hospitals.12 As described above, we
agree that those parts of the summary do not substantially
comply with ORS 250.035(2)(d), and the summary must be
modified accordingly.

12
  Those two sentences provide:
“This measure asks voters to approve or reject the assessments on insur-
ance companies, the Public Employee’s Benefit Board and managed care
organizations and only the portion of the hospital assessment that is in effect
from October 6, 2017, through the later of January 1, 2018 or the date a federal
agency approves other changes to the assessment made by House Bill 2391.
The measure does not ask voters to approve or reject the portions of the hospital
assessment that are in effect beginning on the later of January 1, 2018, or the
date of federal agency approval.”
(Emphasis added.)
112 Parrish v. Rosenblum

Petitioners also argue, as they did with the cap-
tion, that the summary should include the term “tax,” either
in place of or supplementing the term “assessments.” We
rejected that argument in our discussion of the caption and
do so here, as well.13
III. CONCLUSION
In sum, we conclude that all parts of the ballot
title for RP 301 must be modified, and, pursuant to SB 229,
§ 58(6), we refer it to the Attorney General for modification.
The ballot title is referred to the Attorney General
for modification. Pursuant to ORAP 1.20(5) and notwith-
standing ORAP 9.25, ORAP 11.30(10), ORAP 16.25(1), and
ORAP 16.60(1), the State Court Administrator shall issue
the appellate judgment at 4:00 p.m. on October 26, 2017,
unless a petition for reconsideration is both filed and physi-
cally received by the Office of the State Court Administrator
by that time. Any timely petition for reconsideration will
stay issuance of the appellate judgment until the court acts
on such petition.

13
 Petitioners also note that, in conjunction with their proposal to provide
more detail to the caption, which had included adding the terms “premium equiv-
alents” and “managed care organizations,” the summary should define those
terms. Because we rejected petitioners’ argument that the caption required that
degree of specificity, we do not address their related request pertaining to the
summary.
Cite as 362 Or 96 (2017) 113

APPENDIX—REFERENDUM PETITION 301 (2018)
79th OREGON LEGISLATIVE ASSEMBLY—
2017 Regular Session
Enrolled
House Bill 2391
Introduced and printed pursuant to House Rule 12.00.
Presession filed (at the request of House Interim
Committee on Health Care)
AN ACT
Relating to access to health care; creating new provisions;
amending ORS 291.055, 731.292, 731.509 and 731.840 and
sections 1, 2, 3, 5, 7, 9, 10, 12, 13 and 14, chapter 736, Oregon
Laws 2003, and section 2, chapter 26, Oregon Laws 2016;
repealing section 15, chapter 389, Oregon Laws 2015; pre-
scribing an effective date; and providing for revenue raising
that require approval by a three-fifths majority.
House Bill 2391 was passed by the Oregon Legislative
Assembly containing 51 sections. This text was filed as a
referendum on the corresponding portions of HB 2391 pur-
suant to Article IV, Section 1(3) of the Oregon Constitution.
Be It Enacted by the People of the State of Oregon:
SECTION 3.
(2)  No later than 45 days following the end of a calendar
quarter, the Public Employees’ Benefit Board shall pay an
assessment at the rate of 1.5 percent on the gross amount of
premium equivalents received during the calendar quarter.
(4)  The assessment imposed under this section is in addi-
tion to and not in lieu of any tax, surcharge, or other assess-
ment imposed on the board.
SECTION 5.
(2)  No later than 45 days following the end of a calendar
quarter, an insurer shall pay an assessment at the rate of
1.5 percent of the gross amount of premiums earned by the
insurer during that calendar quarter that were derived
114 Parrish v. Rosenblum

from health benefit plans delivered or issued for delivery in
Oregon.
(4)  The assessment imposed under this section is in addi-
tion to and not in lieu of any tax, surcharge, or other assess-
ment imposed on an insurer.
SECTION 8.
(2)  Notwithstanding any provision of contract or statute,
including ORS 743B.013 and 743.022, insurers may increase
their premium rate on policies or certificate that are subject
to the assessment under section 5 of this 2017 Act by 1.5 per-
cent. If an insurer increases its rates under this subsection,
the insurer may include in its billings for health benefit plans
a notice, as prescribed by the Department to Consumer and
Business Services, explaining that the increase is due to the
assessment under section 5, of this 2017 Act.
SECTION 9.
(2)  No later than 45 days following the end of a calendar
quarter, a managed care organization shall pay an assess-
ment at a rate of 1.5 percent of the gross amount of premium
equivalents received during that calendar quarter.
(5)  The assessment imposed under this section is in addi-
tion to and not in lieu of any tax, surcharge, or other assess-
ment imposed on a managed care organization.
SECTION 27. Section 2, chapter 736, Oregon Laws
2003, as amended by section 1, chapter 780, Oregon Laws
2007, section 51, chapter 828, Oregon Laws 2009, section
17, chapter 867, Oregon Laws 2009, section 2, chapter 608,
Oregon Laws 2013, and section 1, chapter 16, Oregon Laws
2015, is amended to read:
Sec. 2.(2)  In addition to the assessment imposed by sub-
section (1) of this section, an assessment of 0.7 percent is
imposed on the net revenue of each hospital in this state
that is not a waivered hospital.