October 17, 2003

(Updated) Breaking News: Federal Court Issues Injunction Against Misleading Ballot Title In Upcoming PUD Election

Note: This post has been updated. Any and all updates appear at the end of the original post.

[Note: I hardly ever make myself watch the local television news broadcasts, so it's entirely possible this aired somewhere this evening. But I haven't yet come across it on the Web, except for this post to the Portland IMC, which is where I came across it. So, it at least appears to be breaking news, unless it was on television earlier and I missed it.]

Remember the mysterious "three percent warning" that appears in relation to Measure No. 26-52, which would authorize a People's Utility District (if formed), to institute a one-time levy of $.003 per $1000 assessed value? You know, the one that claims, "This measure may cause property taxes to increase more than three percent." You know, the one that's been picked up by anti-PUD front groups in an effort to scare voters away from forming a People's Utility District under the false impression that their property taxes could somehow skyrocket? I believe I might have mentioned it recently.

Well, as it turns out, that warning is required by law:

Because Measure 26-52 authorizes a one-year local option tax, it is subject to Oregon law requiring any measure authorizing the imposition of a local option tax, no matter how small, to include the three percent warning. ... Thus, even if a measure authorizes a tax that will raise property taxes by far less than one percent, the statute mandates that the three percent warning be added to the title.

And just where did I get that little piece of information? Why, from the Federal court order (pdf) issued late today granting PUD supporters partial injunctive relief against this misleading language.

The order describes the problem in a fairly straightforward manner:

Plaintiffs correctly contend that the three percent warning is inaccurate in the context of Measure 26-52. For example, the title notes that a house with an assessed value of $150,000 would incur a one-time obligation of an additional 45 cents in taxes. That statement is factually correct. However, the three percent warning leads voters to believe that their property taxes might increase more than three percent if Measure 26-52 passed. For a house valued at $150,000, three percent of the assessed value is $4,500. Read in this manner, the three percent warning overstates the potential effect of Measure 26-52 by a factor of 10,000 (45 cents is one ten-thousandth of $4,500).

The three percent warning also overstates the potential effect of Measure 26-52 if the warning is read to mean that Measure 26-52 may increase an owner's current property taxes by three percent. The average property owner in Multnomah County pays $21 per $1,000 of assessed valuation per year. At that rate, a house valued at $150,000 would pay $3,150 in property taxes annually. A three percent increase of that amount is $94.50. In this example, although Measure 26-52 would cause only an increase in property taxes of 45 cents for a house valued at $150,000, the three percent warning misleads voters to believe that the measure may cause taxes to increase more than $94.50. Under this reading, the three percent warning overestimates the potential burden a taxpayer might incur by more than 200 times of the Measure's potential impact. Regardless of whether the three percent warning overstates the potential tax consequences of Measure 26-52 by a factor of 200 or 10,000, plaintiffs correctly contend that such language is inherently misleading and hinders the conveyance of accurate information to voters.

But just what sort of injunctive relief can exist when, for all intents and purposes, the election is underway and ballots already mailed to prospective voters? Back to the order:

The court takes notice of the fact that prior to the 8 a.m. hearing held today, defendants mailed 345,000 ballots to Multnomah County voters. This number constitutes over ninety-nine percent of the ballots for the election. The ballots contain the constitutionally deficient three percent warning. The court also takes note that at a hearing held on October 15, 2003, defendants informed the court that the mailing was not required until Tuesday, October 21, 2003. Given the unusual timing of defendants' actions under these circumstances, voters will begin receiving their ballots on October 18, 2003. However, there are still opportunities to inform voters of the constitutional infirmity contained in the title of Measure 26-52.

The court finds that by requiring the inclusion of the three percent warning in the titles of ballot measures that have no possibility of "causing" an increase in property taxes of more than three percent, [ORS 280.070(4)] is overly broad. Because plaintiffs have succeeded on their facial challenge, defendants are permanently enjoined from enforcing that provision.

Moreover, the court holds that equity requires that the voters of Multnomah County be informed of the misleading nature of the three percent warning contained in the title of Measure 26-52. Accordingly, the following injunctive relief is ordered:

Beginning Sunday, October 19, 2003, through November 4, 2003, defendants shall place notices in the full-run editions of the Oregonian newspaper. The size of the notices shall be approximately five column inches. The notices shall run in each of the following sections of the newspaper: the "A" section, metro, business, sports, and living. The start date of the notices as well as their placement shall conform to the publisher's restrictions. If the publisher's restrictions prevent complete compliance with this order, the notices shall comply with this order as fully as is practicable. The notices shall contain the following statement: "By Order of the United States District Court for the District of Oregon, the Multnomah County Elections Division advises voters that the passage of Measure 26-52 by itself cannot cause property taxes to increase more than three percent. This clarifies language printed in the November 4, 2003, ballot that was found to be misleading."

Additionally, defendants shall issue a press release no later than October 21, 2003, which states: "By Order of the United States District Court for the District of Oregon, the Multnomah County Elections Division advises voters that the passage of Measure 26-52 by itself cannot cause property taxes to increase more than three percent. This clarifies language printed in the November 4, 2003, ballot that was found to be misleading."

Finally, no later than October 21, 2003, the homepage for the Multnomah County Elections Division shall include the following statement: "By Order of the United States District Court for the District of Oregon, the Multnomah County Elections Division advises voters that the passage of Measure 26-52 by itself cannot cause property taxes to increase more than three percent. This clarifies language printed in the November 4, 2003, ballot that was found to be misleading."

Presuming this gets any serious attention -- although it will be hard to miss all those ads in The Oregonian for sure -- this is a rather impressive smackdown to the private utility industry and its front group which has been trying to take advantage of the bogus "three percent warning" and mislead voters into thinking the PUD initiatives were going to drive their property taxes through some mythical roof.

If this gets any serious attention, this is a rather good opportunity for PUD backers to get into the game, as it were, when it comes to countering the massive ad campaign launched by PGE and Pacific Power to scare voters away from any rational consideration of the issues involved.

Of course, this all depends upon the defendants not appealing the decision, which would be an extraordinarily poor thing to do, since that would require them, in essence, to come out in favor of language which misleads the voters of Multnomah County.

Posted at 11:59 PM | PermalinkComments (3) | TrackBacks (2)
More In Law Enforcement & Legal Issues, Metro-Area Politics

« Previous Next »