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In re Title

Supreme Court of Colorado, En Banc

June 17, 2019

Carol Hedges and Steve Briggs, Petitioners
v.
Ben Schler, LeeAnn Morrill, and Jason Gelender. Title Board In the Matter of the Title, Ballot Title and Submission Clause for 2019-2020 #3

          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 We conclude that Initiative #3, which would ask voters the single question of whether TABOR should be repealed, constitutes a single subject.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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