Bernstein Bros. v. Department of Revenue

CAMPBELL, J.,

dissenting.

The majority states that the purpose of section 9 was to chill the exercise of the power of referendum and that had the legislature accomplished that purpose, it would have no hesitancy in striking down the statute. 294 Or 621. I believe that the legislature did accomplish its purpose, and the statute must be struck down. The plain fact of the matter is that no one tried to invoke a referendum. It is possible that the presence of section 9 is the reason.

As the majority noted at 294 Or 616, the right to invoke a referendum is guaranteed by our Oregon Constitution, and the legislature may do nothing to limit this right. By enacting section 9, the legislature clearly intended to discourage the exercise of this right. This section created an inhibition on the exercise of the right that cannot be tolerated. There can be no penalty attached to the exercise of this right. The possibility that the temporary tax would change into a permanent tax is a threat of a penalty that would discourage an opponent from attempting to invoke a referendum. This is clearly unconstitutional.

The majority makes a distinction between referring “this act” and “this act, or any part thereof.” They evidently decide that the legislature drafted section 9 so inartfully that it should have been obvious to everyone that a person could escape the application of section 9 by referring only sections 1 through 8. It is significant that the Attorney General, representing the Department of Revenue, did not make this argument. In fact, the first time this *627interpretation of section 9 was advanced was during oral argument by a member of this court.

It is unreasonable to expect that an opponent of the temporary tax should have somehow understood and believed in this interpretation so strongly that he would have been willing to refer only sections 1 through 8. A reasonable attorney could not have advised a client that if opponents chose to refer only sections 1 through 8, they would avoid a permanent tax increase in the event that the referral was unsuccessful in defeating these sections. Under no stretch of the imagination could a reasonable attorney have advised a client that this would assure that section 9 would not become operative. Without such assurance, of course, the legislative scheme would have exactly the inhibiting effect that the majority agrees the legislature intended and that it also agrees would be unconstitutional.

To the contrary, we need only imagine what this court would have said if the argument now advanced by the majority had been presented on the part of taxpayers who had unsuccessfully referred sections 1-8 to the voters. Suppose the opponents had consulted a lawyer who conceived an ingenious scheme to circumvent the obvious legislative design of HB 3090. Suppose counsel advised the opponents to circulate petitions to refer only sections 1-8 of the act (temporary tax increase which would be the only operative sections if the law remained unreferred), on the ground that such petitions would not refer “this Act” within the meaning of section 9 of HB 3090. Suppose that thereafter the statute survived a vote of the people, and taxpayers now appeared before this court challenging the effect, because the act was never referred to the people. It is easy to imagine how the attorney general would respond if taxpayers sought to defeat the tax by the sophistry of which he is now made the innocent beneficiary. It is no more difficult to imagine how this court would respond to the very argument that it now presses upon the state. We would give the argument short shrift.

The issue, after all, is not what the term “act” means in the constitution but how the term was meant in section 9 of HB 3090. And the specific constitutional issue *628is whether section 9 imposed an impermissible threat of adverse consequences to inhibit the constitutional right of referral. The majority acknowledges that it was the purpose of section 9 “to chill the exercise of the power of referendum,” but it suggests that the legislature failed in its purpose because a loophole remained open to opponents of the measure, had they only been as ingenious as the majority in discovering it. But can the majority seriously believe that, because it now has discovered this loophole, unrecognized by counsel for the opponents, by the attorney general, or by the tax court, section 9 failed to accomplish its “chilling” purpose?

To repeat, no reasonable attorney could have advised opponents to proceed with a referral of sections 1-8 with the assurance that failure would avoid the consequence of section 9 by virtue of the interpretation now for the first time made by the majority. A reasonable attorney would consider that legislative intent would be a crucial element in the interpretation of section 9.

The clear intent of this act was that if someone challenged the temporary tax and lost, the temporary tax would have changed into a permanent tax. A reasonable attorney would have realized that the words “this act” could have been interpreted to mean “the major parts of this act.”

In other words, a reasonable attorney, who by definition is not necessarily blessed with perfect twenty-twenty foresight, might logically conclude that a court could find sections 1 through 8 were the “guts” or “major parts of this act” because they provided for the temporary tax and that section 9 was merely an ancillary mechanical provision to be triggered only in the event that the temporary tax was approved. An opponent, with or without legal advice, would be required to weigh the advantages of possibly defeating the temporary tax against the disadvantages of possibly being subjected to a permanent tax. The weighing process itself is a “chilling effect” which might be the equivalent of a dip into Glacier Bay in the middle of January.

The majority opinion seems to be based upon the premise that the opponents of the temporary tax under a *629self-preservation theory would seek out and find the procedure that would subject them to the least risk. But, what about the opponents who by design or accident refer the entire act? Does not the Oregon Constitution give the foolhardy a right to refer the entire act? The majority opinion has not addressed these questions. The plaintiffs lawyer, on oral argument in this court, was correct when he called section 9 “the hammer clause.”

This legislative scheme worked. The legislature set out to make sure there was no referendum on this temporary tax by attaching a penalty to the exercise of the right of referendum. I would strike the act.

Linde, J. and Roberts J. join in this opinion.