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 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,

______________

* 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 physically 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 substantially 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 reconsideration is both filed and physically 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.
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 petitioners’ 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 legislature 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, chapter 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 temporary assessment on insurers. Also, in section 27(2)(2), 

the bill imposed a temporary assessment on the net revenue 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 (removing assessment at later date); §§ 44, 51 (setting out operative 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, petitioners filed with the Secretary of State a referendum petition, 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 sufficient 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 signatures 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 committee prepared a ballot title and filed it with the Secretary of 

State. See SB 229, § 55(3) (establishing process). The ordinary 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 requirements. 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 following 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 lowincome individuals and families and individuals with disabilities and to stabilize premiums charged by insurance 

companies for health insurance purchased by individuals 

and families. Approves temporary assessments on insurance companies, some hospitals, the Public Employees’ 

Benefit Board and managed care organizations to provide 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 stabilizing 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, families and individuals with disabilities, and to stabilize premiums charged by insurance companies for health insurance purchased by individuals and families. House Bill 

2391 provided the funding through a 1.5 percent assessment on premiums and premium equivalents (defined) 

of health insurance companies, the Public Employees’ 

Benefit Board and managed care organizations for a twoyear 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 companies, 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 requirements. 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 reasonably 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 premiums 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 accurately describe the temporary assessments, the caption 

should use the word “tax.” Petitioners contend that the caption is “fundamentally flawed and should be discarded.” The 

Attorney General and amicus Unger respond that the caption appropriately explains that the revenue from the temporary 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 matter 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 nonetheless 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, immediate 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 “stabilizing 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 (measure 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 proposed new tax exemption but not predicted effect on existing 

tax revenues and funded programs; measure concerned limited 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: imposition 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 assessments. That framing has the potential of misleading voters, 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 governmental 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 confirm 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 component 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 several 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 coverage”—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 certain entities as subject to new temporary assessments designated 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 temporary 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 convey 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 calendar 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-raising 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 collecting 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 (incorporating HB 2391, sections 3(4), 5(4), and 9(5), all providing 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 certain programs. It follows that use of the term “assessments,” 

drawn from RP 301 itself, would not confuse or mislead voters, 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 commonly 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) (approving 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 impermissibly 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 statement, 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 quotation 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 statement, first raising the same argument as with the “yes” 

result statement. See ORS 250.035(2)(c) (“no” result statement 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 hospitals, 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 alternative 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 impermissibly 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 hospitals; 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 section 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 identified 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 temporary 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 triggers 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); therefore, (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 timelines 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 theory 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 temporary 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 interpret 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), modified 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 amendatory 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 considered 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 exercise of preenactment interpretation; proponents and opponents 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 impermissibly set out the same speculative theory about the temporary 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 insurance 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 caption, 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 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 reconsideration is both filed and physically 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 equivalents” 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; prescribing 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 pursuant 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 addition to and not in lieu of any tax, surcharge, or other assessment 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 addition to and not in lieu of any tax, surcharge, or other assessment 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 percent. 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 assessment 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 addition to and not in lieu of any tax, surcharge, or other assessment 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 subsection (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.