Original Proceeding Pursuant to § 1-40-107(2), C.R.S.
(2018) Appeal from the Ballot Title Setting Board
Attorneys for Petitioners: Tierney Lawrence LLC Edward T.
Ramey Martha M. Tierney Denver, Colorado
Attorneys for Title Board: Philip J. Weiser, Attorney General
Emily B. Buckley, Assistant Attorney General Denver, Colorado
OPINION
GABRIEL JUSTICE.
¶1
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 Taxpayer's 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:
Section 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.
¶2
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repealed, constitutes a single subject.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.
¶3
We therefore return Initiative #3 to the Title Board for the
purpose of setting a title, ballot title, and submission
clause.
I.
Facts and Procedural Background
¶4
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.
¶5
Petitioners now petition for review pursuant to section
1-40-107(2), C.R.S. (2018).
II.
Standard of Review
¶6
"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.
¶7
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).
¶8
In addition, in our limited review of the Title Board's
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
initiative's 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.
III.
Analysis
¶9
Petitioners contend that the Title Board erred in concluding
that Initiative #3 does not constitute a single subject. We
agree.
¶10
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
polls.
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[.]").
¶11
The single-subject requirement serves two functions.
¶12
First, it is intended
[t]o forbid the treatment of incongruous subjects in the same
measure, especially 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[.]
§ 1-40-106.5(1)(e)(I).
¶13
"Thus, an initiative's 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 565, 568.
¶14
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.
¶15
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."
§ 1-40-106.5(1)(e)(II).
¶16
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 initiative's
objective, however, is not without limits. Id. Thus,
"[a] proponent's 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. 2010).
¶17
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?
¶18
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
finding otherwise.
¶19
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.
¶20
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).
¶21
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 7879; 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.
¶22
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 Title Board's refusal to
set a title, concluding that the initiative violated the
single-subject rule. Id. at 534.
¶23
As pertinent here, we began by setting out the law relating
to the single-subject requirement. See id. at 532.
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