Supreme Court Case No. 16SA51 Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2015) Appeal from the Ballot Title Setting Board
Attorneys for Petitioners: Ryley Carlock & Applewhite Richard C. Kaufman Sarah K. Pallotti Matthew K. Tieslau Denver, Colorado
Attorneys for Respondents: Tierney Lawrence LLC Martha M. Tierney Denver, Colorado
Attorneys for Ballot Title Board: Cynthia H. Coffman, Attorney General LeeAnn Morrill, First Assistant Attorney General Denver, Colorado
¶1 In this original proceeding, we review the Title Board's action setting the title and ballot title and submission clause for Proposed Initiative 2015–2016 #63 ("Initiative #63"). Initiative #63 seeks to amend article II of the Colorado Constitution to establish a "right to a healthy environment." We conclude that Initiative #63 contains a single subject-the creation of a right to a healthy environment-and that the title of the initiative clearly expresses that subject and is not misleading. We therefore affirm the action of the Title Board.
I. Facts and Procedural History
¶2 Bruce Mason and Karen Dike are the designated proponents ("Proponents") of Initiative #63, which would establish a right to a healthy environment in Colorado by adding a new section to article II of the Colorado Constitution. The proposed initiative declares that "[t]he natural persons of Colorado, including future generations, have an inherent, indefeasible, and inalienable right to a healthy environment, " and deems that right "a fundamental right." It requires state and local governments to assign the highest priority to the protection of a healthy environment and provides that if state and local laws conflict, the law that is more protective of a healthy environment shall govern. Finally, it creates an enforcement mechanism under which an aggrieved person or governmental entity may sue for a failure to abide by or enforce the provisions of the new right.
¶3 Proponents submitted a final version of Initiative #63 to the Secretary of State on January 8, 2016. On January 20, 2016, the Title Board conducted a hearing and set the title for the initiative. On January 27, 2016, Tracee Bentley and Stan Dempsey ("Petitioners") filed a motion for rehearing, arguing that Initiative #63 contained multiple subjects and was misleading in violation of article V, section 1(5.5) of the Colorado Constitution.
¶4 The Title Board considered the motion for rehearing at its February 3, 2016, meeting and set the following amended title:
An amendment to the Colorado constitution concerning natural persons' fundamental right to a healthy environment and, in connection therewith, defining "healthy environment" as safe and sustainable conditions for human life, including healthy air, water, land, and ecological systems; requiring state and local governments to assign the highest priority to protecting a healthy environment; allowing local governments to enact laws that are protective of a healthy environment; stating that such a local law governs over a state law that is less protective of a healthy environment; allowing natural persons and governmental entities to sue to enforce the fundamental right to a healthy environment; and awarding reasonable costs of litigation upon determination that a violation has occurred.
¶5 Petitioners now seek review of the Title Board's actions under section 1-40-107(2), C.R.S. (2015), alleging that Initiative #63 violates the constitutional single-subject requirement. Petitioners also assert that the title contains impermissible catch phrases and is unclear and misleading.
II. Standard of Review
¶6 When reviewing a challenge to the Title Board's decision, "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). Accordingly, only in a clear case will we overturn the Title Board's finding that an initiative is limited to a single subject. In re Title, Ballot Title & Submission Clause for 2011–2012 #3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565. "We give great deference to the Title Board in the exercise of its drafting authority and will reverse its decision only if the titles are insufficient, unfair, or misleading." In re 2009–2010 #45, 234 P.3d at 648.
¶7 The scope of our review is limited. We examine a proposed initiative to determine whether it comports with the single-subject requirement and whether the title as a whole is fair, clear, and accurate, but we refrain from addressing its merits. In re 2011–2012 #3, ¶ 8, 274 P.3d at 565. We do not determine the initiative's efficacy, construction, or future application, as these are matters properly considered if and after the voters approve the initiative. In re 2009–2010 #45, 234 P.3d at 645.
¶8 We first consider whether Initiative #63 consists of a single subject. Because its provisions are directly tied to and implement its central focus, we conclude that the initiative contains one subject only. We then assess whether the initiative's title is clear. Because the title uses language that is adequately descriptive without relying on emotionally manipulative catch phrases, we conclude that it is.
A. Initiative #63 Does Not Violate the Single-Subject Requirement
1. Single-Subject Requirement
¶9 In accord with article V, section 1(5.5) of the Colorado Constitution, section 1-40-106.5(1)(a), C.R.S. (2015), requires every constitutional amendment proposed by initiative to be limited to a single subject clearly expressed in the initiative's title. We construe the single-subject requirement liberally in order to avoid unduly restricting the initiative process. In re 2009–2010 #45, 234 P.3d at 646.
¶10 An initiative violates the single-subject requirement when it relates to more than one subject and has at least two distinct and separate purposes. In re Title, Ballot Title & Submission Clause 2013–2014 #129, 2014 CO 53, ¶ 15, 333 P.3d 101, 104. An initiative will satisfy the rule if it "tends to effect or to carry out one general objective or purpose, " In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 #256, 12 P.3d 246, 253 (Colo. 2000) (quoting In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 #25, 974 P.2d 458, 463 (Colo. 1999)), or features several "interrelated" purposes, In re 2009–2010 #45, 234 P.3d at 646. Implementing provisions that are directly tied to the initiative's central focus are not separate subjects. Id. In short, "the subject matter of an initiative must be necessarily and properly connected rather than disconnected or incongruous." In re 2011–2012 #3, ¶ 9, 274 P.3d at 565 (citation omitted) (internal quotation marks omitted).
¶11 The single-subject requirement serves to protect against two dangers associated with omnibus initiatives. First, "combining subjects with no necessary or proper connection for the purpose of garnering support for the initiative from various factions-that may have different or even conflicting interests-could lead to the enactment of measures that would fail on their own merits." Id. at ¶ 11, 274 P.3d at 566; see also § 1-40-106.5(1)(e)(I), C.R.S. (2015) (explaining that single-subject requirement is intended to forbid combining disconnected subjects in same measure to secure enactment of measures that would not succeed on their own merits). Second, it helps avoid "voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision 'coiled up in the folds' of a complex initiative." In re 2011– 2012 #3, ¶ 11, 274 P.3d at 566 (quoting In re Title, Ballot Title & Submission Clause for Proposed Initiative ...