Oregon Journalism Project: AG’s opinion raises questions about transportation tax repeal

The opinion, dated Nov. 13, 1935, is about a bill lawmakers passed that year related to student fees at Oregon colleges. Before the measure went into effect, however, citizens gathered enough signatures to send it to the ballot for voters to decide. 

Then-Gov. Charles Martin asked then-Attorney General I.H. Van Winkle whether lawmakers could simply repeal the bill rather than engage in a ballot fight. 

The answer Van Winkle gave, based on case law from Oregon and numerous other states: No. 

“The right of the people to a referendum vote on a statute enacted by the Legislature cannot be defeated by a subsequent repeal of the act referred,” Van Winkle wrote, quoting a Missouri case. 

The opinion is newly relevant because of the machinations around HB 3991.  After lawmakers failed in 2025 to pass a long-planned ODOT funding measure, Kotek then called them back in September, and the Democratic supermajorities ultimately passed a slimmed-down measure that would generate new revenue from a 6-cents-a-gallon gas tax hike, increases in vehicle registration fees, and a doubling of the statewide payroll tax to fund transit. 

But after Kotek signed the bill into law in mid-November, critics of HB 3991, led by state Sen. Bruce Starr (R-Dundee), Rep. Ed Diehl (R-Scio) and Jason Williams of the Taxpayer Association of Oregon then stunned many political observers: They quickly gathered about 250,000 signatures to refer HB 3991 to the November 2026 ballot. 

Kotek subsequently changed her mind and now wants to repeal HB 3991 because the consensus is the referral would succeed in repealing the tax increases. 

Rather than allowing critics to use the repeal as a cudgel against her and legislative Democrats between now and November, Kotek decided to take the pain and move on. 

But she may not be able to. A reader tipped OJP to the 1935 AG’s opinion which is so old it’s not online but is findable at the Oregon State Library. 

It’s unclear what consequence the opinion will have. 

Kotek spokeswoman Elisabeth Shepard says the governor was unaware of the opinion when she declared in a Jan. 7 speech: “Here is what I am asking the Oregon Legislature to do in the February session — repeal House Bill 3991.”

“The governor’s office was not specifically aware of this 1935 opinion,” Shepard told OJP in an email Jan. 15. “The Legislature will certainly be doing its due diligence about how best to proceed on this issue.”

(Legislative leaders have previously taken a wait-and-see approach to what they will do in the session that starts Feb. 4 and did not take a position after Kotek’s call for repeal.)

Jenny Hansson, a spokeswoman for Attorney General Dan Rayfield, says the Department of Justice has not yet formed a legal opinion on the proposed repeal.

“We are aware of the 1935 opinion,” Hansson says. “Since 1935, the relevant portion of the constitution has been amended, and there is additional case law bearing on the issue. We have not analyzed whether the 1935 opinion’s conclusions remain valid in light of more recent legal developments.” 

In a Jan. 9 interview with OJP, Starr said he and his co-petitioners in the referral were disappointed that Kotek wanted to repeal HB 3991, which would short-circuit the process. 

“I understand how the game is played,” Starr said then. 

But when OJP shared the AG’s opinion with Starr, he struck a different note. 

“This opinion makes the law unmistakably clear,” Starr said. “Once the people invoke the referendum, the Legislature has no authority to repeal it. The constitution requires an election. There is no statutory workaround, no procedural loophole, and no legal basis to keep this measure off the ballot.”

House Minority Leader Lucetta Elmer (R-McMinnville) echoed Starr’s displeasure. 

“When more than a quarter million people sign a petition demanding a vote, the response should be transparency and respect, not backroom maneuvering,”

Elmer said. “This is about trusting the people, following the constitution, and letting voters decide for themselves.”

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This story was produced by the Oregon Journalism Project (oregonjournalismproject.org), a nonprofit investigative newsroom for the state of Oregon.