In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2019-2020 #3 Carol Hedges and Steve Briggs, Petitioners
Ben Schler, LeeAnn Morrill, and Jason Gelender, Title Board.
Original Proceeding Pursuant to § 1-40-107(2), C.R.S.
(2018) , Appeal from the Ballot Title Setting Board
for Petitioners: Tierney Lawrence LLC, Edward T. Ramey,
Martha M. Tierney, Denver, Colorado
for Title Board: Philip J. Weiser, Attorney General, Emily B.
Buckley, Assistant Attorney General, Denver, Colorado
Petitioners Carol Hedges and Steve Briggs are the designated
representatives of the proponents of proposed Initiative
2019-2020 #3 ("Initiative #3"), which, if enacted,
would repeal in its entirety the Taxpayers Bill of Rights,
section 20 of article X of the Colorado Constitution
("TABOR"). The proposed initiative reads, in full,
"Be it Enacted by the People of the State of Colorado:
1. In the constitution of the state of Colorado, repeal
section 20 of article X." The Title Board declined to
set a title for this initiative because it concluded that the
initiative did not constitute a single subject as required by
the Colorado Constitution. Petitioners now petition this
court for review.
Applying settled principles for determining whether a
proposed initiative constitutes a single subject, we reverse
the Title Board. We conclude that Initiative #3, which would
ask voters the single question of whether TABOR should be
repealed, constitutes a single subject. To the extent that
prior decisions from this court have said that if a
constitutional provision contains multiple subjects and an
initiative proposes to repeal the entire underlying
provision, then the initiative contains multiple subjects, we
conclude that those decisions are not binding under
principles of stare decisis and are not analytically sound,
and we disapprove them.
We therefore return Initiative #3 to the Title Board for the
purpose of setting a title, ballot title, and submission
I. Facts and Procedural Background
Pursuant to section 1-40-106, C.R.S. (2018), petitioners
submitted proposed Initiative #3 to the Title Board for the
setting of a title and submission clause. The Board held a
hearing and declined to set a title, concluding that
"the measure does not constitute a single subject."
Petitioners filed a motion for rehearing, requesting, as
pertinent here, that the Title Board reconsider its
determination that Initiative #3 contains more than a single
subject. The Title Board denied the motion for rehearing.
Petitioners now petition for review pursuant to section
1-40-107(2), C.R.S. (2018).
II. Standard of Review
"The Title Board is vested with considerable discretion
in setting the title and the ballot title and submission
clause[,]" and we will reverse the Boards 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.
In reviewing Title Board title settings, "we employ all
legitimate presumptions in favor of the propriety of the
Boards actions." In re Title, Ballot Title &
Submission Clause for 2009-2010 #45 , 234 P.3d 642, 645
In addition, in our limited review of the Title Boards
actions, we do not address the merits of the proposed
initiative. In re 2013-2014 #90, ¶ 9 , 328 P.3d at
159. Nor do we suggest how it might be applied if enacted.
Id. Rather, as pertinent here, we must examine the
initiatives wording to determine whether it comports with
the constitutional single-subject requirement. See
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.
Petitioners contend that the Title Board erred in concluding
that Initiative #3 does not constitute a single subject. We
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 title shall be set and the measure shall not be
submitted to the people for adoption or rejection at the
See also § 1-40-106.5(1)(a), C.R.S. (2018)
("Section 1(5.5) of article V ... require[s] that every
constitutional amendment or law proposed by initiative ... be
limited to a single subject, which shall be clearly expressed
in its title[.]").
The single-subject requirement serves two functions.
First, it is intended
[t]o forbid the treatment of incongruous subjects in the same
the practice of putting together in one measure subjects
having no necessary or proper connection, for the purpose of
enlisting in support of the measure the advocates of each
measure, and thus securing the enactment of measures that
could not be carried upon their merits[.]
"Thus, an initiatives subject matter must be
necessarily and properly connected rather than disconnected
or incongruous, and the initiative will be held to violate
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 for 2015-2016 #73 , 2016 CO 24, ¶ 14, 369 P.3d
In this way, the single-subject requirement "prevents
the proponents from combining multiple subjects to attract a
yes vote from voters who might vote no on one or more of
the subjects if they were proposed separately." In
re Title, Ballot Title & Submission Clause for 2013-2014
#76 , 2014 CO 52, ¶ 8, 333 P.3d 76, 79.
Second, the single-subject requirement seeks "[t]o
prevent surreptitious measures and apprise the people of the
subject of each measure by the title, that is, to prevent
surprise and fraud from being practiced upon voters."
When, in contrast, an initiative tends to effectuate one
general objective or purpose, then the initiative presents
only one subject. In re 2015-2016 #73, ¶ 17 , 369
P.3d at 568. The breadth of the initiatives objective,
however, is not without limits. Id. Thus, "[a]
proponents attempt to characterize an initiative under some
general theme will not save the initiative from violating the
single-subject rule if the initiative contains multiple
subjects." In re Title, Ballot Title & Submission
Clause for 2009-2010 #91 , 235 P.3d 1071, 1076 (Colo.
Here, Initiative #3 satisfies all of the above-described
requirements of a single-subject initiative. The initiative
effectuates one and only one general objective or purpose,
namely, the repeal of TABOR. In re 2015-2016 #73, ¶
17 , 369 P.3d at 568. It does not treat incongruous
subjects in the same measure, and its subject matter is
necessarily and properly connected. §
1-40-106.5(1)(e)(I); In re 2015-2016 #73, ¶ 14 , 369
P.3d at 568. And we perceive nothing in Initiative #3 that
could be deemed to be surreptitious or hidden in the measure.
§ 1-40-106.5(1)(e)(II). Nor can we see how Initiative #3
could be read so as to pose a risk of surprise or fraud on
voters. Id. The initiative could not be written more
simply or directly. It essentially asks voters a single
question: should TABOR be repealed in full?
For these reasons, we conclude that Initiative #3 constitutes
a single subject as required by article V, section 1(5.5) of
the Colorado Constitution, and that the Title Board erred in
In so ruling, we emphasize that we are not adopting an
exception to the single-subject rule for repeal measures.
Rather, as our above analysis demonstrates, we are merely
applying settled principles of our single-subject
jurisprudence to the initiative now before us. Moreover, to
conclude that the initiative here comprises multiple subjects
would require us to read language into the initiative that is
not there and to address the merits of that initiative and
suggest how it might be applied if enacted. As noted above,
however, we are not permitted to do so. See In
re 2013-2014 #90, ¶ 9 , 328 P.3d at 159.
Notwithstanding the foregoing, the Title Board correctly
notes that we have previously stated that if a constitutional
provision contains multiple subjects and an initiative
proposes to repeal the entire underlying provision, then the
initiative contains multiple subjects. See, e.g. ,
In re 2013-2014 #76, ¶ 7 , 333 P.3d at 78-79; In
re Title, Ballot Title & Submission Clause for Proposed
Initiative 2001-02 #43 , 46 P.3d 438, 447 (Colo. 2002);
In re Title, Ballot Title & Submission Clause & Summary
for 1999-2000 #104 , 987 P.2d 249, 254 (Colo. 1999).
Notably, each of the above-cited cases states this
proposition without any analysis. See In re
2013-2014 #76, ¶ 7 , 333 P.3d at 78-79; In re
2001-02 #43 , 46 P.3d at 447; In re 1999-2000
#104 , 987 P.2d at 254. Instead, these cases simply cite
In re Proposed Initiative 1996-4 , 916 P.2d 528, 533
(Colo. 1996), or cases that themselves cited In re
Proposed Initiative 1996-4 , albeit without discussion.
See In re 2013-2014 #76, ¶ 7 , 333 P.3d at
78-79; In re 2001-02 #43 , 46 P.3d at 447; In re
1999-2000 #104 , 987 P.2d at 254. The question presented
in this case thus requires us to determine whether In re
Proposed Initiative 1996-4 controls here.
In In re Proposed Initiative 1996-4 , 916 P.2d at
530-31, the proponents submitted a proposed initiative that,
if passed, would have repealed and reenacted several
individual and expressly identified provisions of TABOR.
The Title Board concluded that the initiative failed the
single-subject requirement, and the proponents filed a
petition for review in this court. Id. at 531. We
ultimately upheld the ...