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In re Title

Supreme Court of Colorado, En Banc

April 25, 2016

In the Matter of the Title, Ballot Title and Submission Clause for 2015-2016 #73 Phillip Hayes, Petitioner
v.
Mike Spalding and David Ottke, Respondents And Title Board: Suzanne Staiert, Frederick Yarger, and Jason Gelender.

Appeal from the Ballot Title Setting Board Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2015)

Attorneys for Petitioner: Recht Kornfeld, P.C. Mark G. Grueskin Denver, Colorado

Mike Spalding, Pro Se

David Ottke, Pro Se

JUSTICE GABRIEL

¶1 In this opinion, we review the actions of the Title Board in setting the title and the ballot title and submission clause for Initiative 2015–2016 #73 ("Initiative #73").[1]

¶2 We conclude that Initiative #73 contains one subject, namely, the manner in which recall elections are triggered and conducted. We further conclude, however, that the title set by the Title Board does not satisfy the clear title requirement because it does not alert voters to central elements of the initiative; it is misleading as to other elements; and, as all parties agree, it unnecessarily recites existing law.

¶3 Accordingly, we reverse the action of the Title Board in setting the title for Initiative #73, and we return this measure to the Board for the purpose of fixing a new title that satisfies the clear title requirement.

I. Facts and Procedural History

¶4 Mike Spalding and David Ottke (collectively, the "proponents") proposed Initiative #73, which would amend article XXI of the Colorado Constitution to change the procedures leading to and the conduct of recall elections for state and local elective officials. A review and comment hearing was held before representatives of the Offices of Legislative Counsel and Legislative Legal Services. Thereafter, the proponents submitted a final version of their proposed initiative to the Secretary of State for purposes of submission to the Title Board.

¶5 The Title Board conducted a hearing, concluded that the proposed initiative contained a single subject, and set a title. Thereafter, the petitioner, Phillip Hayes, filed a motion for rehearing, contending that the title comprised multiple subjects and was misleading, confusing, and inaccurate.

¶6 The Title Board subsequently granted the motion for rehearing in part and set the following title:

An amendment to the Colorado constitution concerning recall of elective officials, and, in connection therewith, specifying recall and successor election procedures for state and local elective officials; stating that recalled officials shall not be any official for six years; restricting recall from the same office for an official who has already defeated a recall effort; requiring opposition donations and spending to continue to be public records; and prohibiting identification, reporting, or limitation of donations to recall campaigns and payments to recall petition circulators.

¶7 Hayes now petitions this court for review pursuant to section 1-40-107(2), C.R.S. (2015).

II. Standard of Review

¶8 "The Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause, " and we will reverse the Board's decision only when a title is insufficient, unfair, or misleading. In re Title, Ballot Title & Submission Clause for 2013–2014 #90, 2014 CO 63, ¶ 8, 328 P.3d 155, 159.

¶9 In reviewing Title Board title settings, "we employ all legitimate presumptions in favor of the propriety of the Board's actions." In re Title, Ballot Title & Submission Clause for 2009–2010 #45, 234 P.3d 642, 645 (Colo. 2010).

¶10 In addition, in our limited review of the Title Board's actions, we do not address the merits of the proposed initiative. Id. at ¶ 9, 328 P.3d at 159. Nor do we suggest how it might be applied if enacted. Id. Rather, we examine the initiative's wording to determine whether it and its title comport with the constitutional single subject and clear title requirements. Id. In conducting this limited inquiry, we employ the general rules of statutory construction and give words and phrases their plain and ordinary meanings. Id.

III. Analysis

¶11 Hayes contends that the Title Board lacked authority to set the title at issue because Initiative #73 violates the single subject requirement. He further contends that the title violated the clear title requirement in multiple ways. We address these arguments in turn.

A. Single Subject Requirement

¶12 Article V, section 1(5.5) of the Colorado Constitution provides, in pertinent part:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no ...

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