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In re Title

Supreme Court of Colorado, En Banc

July 5, 2016

In the Matter of the Title, Ballot Title and Submission Clause for 2015-2016 #156 John Grayson Robinson, Petitioner
v.
Bruce Dierking and Jeanne McEvoy, Respondents and Suzanne Staiert, David Blake, and Sharon Eubanks, Title Board

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

          Attorneys for Petitioner: Lewis Roca Rothgerber Christie LLP Thomas M. Rogers, III Hermine Kallman Denver, Colorado

          Attorney for Respondents: Recht Kornfeld, P.C. Mark G. Grueskin Denver, Colorado

          Attorneys for Ballot Title Board: Cynthia H. Coffman, Attorney General W. Eric Kuhn, Senior Assistant Attorney General Denver, Colorado

          BOATRIGHT JUSTICE

          ¶1 Petitioner John Grayson Robinson brings this original proceeding pursuant to section 1-40-107(2), C.R.S. (2015), asking us to reverse the Ballot Title Board's ("Title Board" or "Board") decision to set the title and ballot title and submission clause for Initiative 2015–2016 #156 ("Initiative #156").[1] Robinson contends that the title does not satisfy the clear title requirement and that the initiative violates the single subject requirement. See Colo. Const. art. V, § 1(5.5).

         ¶2 We conclude that the title that the Board set violates the clear title requirement because it is confusing and fails to aid voters in deciphering the purpose of the initiative and in deciding whether to support or oppose it. Accordingly, we reverse the Title Board's setting of title for Initiative #156 and return the initiative to the Board.[2]

         I. Facts and Procedural History

         ¶3 Initiative #156 would add a new section to the Colorado Revised Statutes prohibiting state and local licensing authorities from issuing "a license to a food store that offers for sale, in sealed containers for off-premises consumption, " certain listed "intoxicants": marijuana, marijuana product, liquor, wine, and malt liquor. The initiative defines "food store" as a "retail premises" that generates at least fifteen percent of its gross annual income from the sale of food items. The initiative would also make it a class 1 misdemeanor to sell any of the listed "intoxicants" at a "food store."

         ¶4 The Title Board conducted a hearing, concluded that the proposed initiative contained a single subject, and set a title for the initiative using much of the same language as the initiative itself. The title reads as follows:

A change to the Colorado Revised Statutes prohibiting a state or local licensing authority from granting a liquor license to a food store that offers for sale, in sealed containers for off-premises consumption, full-strength beer, wine, liquor, marijuana, or marijuana products.

         ¶5 Robinson filed a motion for rehearing, asserting that the title was unclear and that the initiative contained multiple subjects. The Title Board conducted a rehearing but ultimately upheld its prior decision to set the initiative's title. ¶6 Robinson thereafter filed this original proceeding pursuant to section 1-40-107(2).

         II. Analysis

         ¶7 To assess whether Initiative #156's title satisfies the clear title requirement, we first outline our role in evaluating the Title Board's actions in approving initiatives and setting titles. Next, we turn to the Colorado Constitution's clear title requirement, which seeks to prevent voter confusion and ensure that a title adequately expresses an initiative's intended purpose. Finally, we address whether Initiative #156's title satisfies the clear title requirement and conclude that the initiative's title is unclear because it is illogical and confusing. We therefore reverse the Title Board's setting of title for Initiative #156 and return the initiative to the Board.

         A. Standard of Review

         ¶8 "The Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause . . . ." In re Title, Ballot Title & Submission Clause for 2015–2016 #73, 2016 CO 24, ¶ 8, 369 P.3d 565, 567 (quoting In re Title, Ballot Title & Submission Clause for 2013–2014 #90, 2014 CO 63, ¶ 8, 328 P.3d 155, 159). In respecting that discretion, "we employ all legitimate presumptions in favor of the propriety of the [Title] Board's actions." In re Title, Ballot Title & Submission Clause for 2013–2014 #89, 2014 CO 66, ¶ 8, 328 P.3d 172, 176 (quoting In re Title, Ballot Title & Submission Clause for 2009–2010 #45, 234 P.3d 642, 645 (Colo. 2010)). Thus, when reviewing titles "for clarity and accuracy, we only reverse the Title Board's decision if the [t]itles are 'insufficient, unfair, or misleading.'" Id. (quoting In re 2009–2010 #45, 234 P.3d at 648). In making this determination, "we employ the general rules of statutory construction and accord the language of the proposed . . . titles their plain meaning." In re Title, Ballot Title & Submission Clause for 2011–2012 #3, 2012 CO 25, ¶ 8, 274 P.3d 562, 565. Our role is not to consider the merits, efficacy, construction, or future application of a proposed initiative, but instead to determine whether the Title Board fulfilled its duty of ensuring that the initiative, title, and ballot title and submission clause meet constitutional requirements. Id.; In re 2013–2014 #89, ¶ 10, 328 P.3d at 176.

         ¶9 With these principles in mind, we now discuss the clear title requirement.

         B. Clear Title Requirement

         ¶10 Article V, section 1(5.5) of the Colorado Constitution takes the single-subject and clear-title requirements for bills proposed by the General Assembly and applies those requirements to voter initiatives. See In re Title, Ballot Title & Submission Clause for 1999–2000 #25, 974 P.2d 458, 460–63 (Colo. 1999). As pertinent here, subsection 5.5 requires that an initiative's single subject "be clearly expressed in its title." Colo. Const. art. V, § 1(5.5); In re 2015–2016 #73, ¶ 22, 369 P.3d at 568. A perfect title is not necessary, In re Title, Ballot Title & Submission Clause & Summary for 1999–2000 #29, 972 P.2d 257, 266 (Colo. 1999), but the Title Board must, in the process of setting a title, "consider the public confusion that might be caused by misleading titles, " "avoid titles for which the general understanding of the effect of a 'yes/for' or 'no/against' vote will be unclear, " and "correctly and fairly express the true intent and meaning" of the initiative in the title, § 1-40-106(3)(b); In re 2009–2010 #45, 234 P.3d at 648.

         ¶11 In sum, the clear title requirement seeks to accomplish two overarching goals: prevent voter confusion and ensure that the title adequately expresses the initiative's intended purpose. If a title accomplishes these goals, the end result is that voters, "whether or not they are familiar with the subject matter of a particular proposal, " should be able to "determine intelligently whether ...


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