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In re Title

Supreme Court of Colorado, En Banc

December 23, 2019

Douglas Bruce and William Banta, Petitioners
v.
Carol Hedges and Steve Briggs, Respondents In the Matter of the Title, Ballot Tital and Submission Clause for 2019-2020 # 3 "State Fiscal Policy" and Jason Gelender, Melissa Polk, and David Powell, Title Board and Carol Hedges and Steve Briggs Petitioners
v.
William Banta Respondent and Jason Gelender, Melissa Polk, and David Powell, Title Board

          Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2019) Appeal from the Ballot Title Setting Board

          Douglas Bruce, pro se Colorado Springs, Colorado

          William M. Banta, pro se Englewood, Colorado

          Attorneys for Respondents/Petitioners Steve Briggs and Carol Hedges: 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 In this case, the Title Board set a title for Proposed Ballot Initiative 2019-2020 #3 ("Proposed Initiative") that reads, in pertinent part, "An amendment to the Colorado constitution concerning the repeal of the Taxpayer's Bill of Rights (TABOR), Article X, Section 20 of the Colorado constitution." The Board also ultimately adopted an abstract that states, regarding the economic impact of the Proposed Initiative:

The measure is expected to increase revenue and spending for state and local governments over the long term, shifting a portion of the state's economy from the private sector to the public sector. If government spending for public goods and services, including for example health care, education, social services, infrastructure, and public safety, increases, as expected, household and business spending or saving will be correspondingly reduced.

         ¶2 We must now determine whether (1) the title is clear and not misleading; (2) the use of the phrase "Taxpayer's Bill of Rights" in the title constitutes an impermissible catch phrase; and (3) the abstract is misleading. We conclude that the title and abstract are clear and not misleading and that the phrase "Taxpayer's Bill of Rights," as used in the title before us, is not an impermissible catch phrase.

         ¶3 Accordingly, we affirm the decision of the Title Board.

         I. Facts and Procedural Background

         ¶4 Pursuant to section 1-40-106, C.R.S. (2019), Steve Briggs and Carol Hedges, as designated representatives of the proponents of the Proposed Initiative ("Proponents"), submitted the Proposed Initiative to the Title Board for the setting of a title and ballot title and submission clause. The Board held a hearing and declined to set a title, concluding that the measure did not constitute a single subject. Proponents filed a motion for rehearing, requesting that the Board reconsider that determination, but the Board denied that motion.

         ¶5 Proponents then petitioned this court for review pursuant to section 1-40-107(2), C.R.S. (2019). This court subsequently reversed the Title Board, concluding that the Proposed Initiative constituted a single subject, and we returned the Proposed Initiative to the Board for the purpose of setting a title and ballot title and submission clause. In re Title, Ballot Title & Submission Clause for 2019-2020 #3, 2019 CO 57, ¶ 40, 442 P.3d 867, 873.

         ¶6 The Board conducted a remand hearing and set a title and ballot title and submission clause for the Proposed Initiative. The title provided, "An amendment to the Colorado constitution concerning the repeal of the Taxpayer's Bill of Rights (TABOR), Article X, Section 20 of the Colorado constitution."

         ¶7 The Board also adopted an abstract, which initially provided:

The measure is expected to increase revenue and spending for state and local governments over the long term, shifting a portion of the state's economy from the private sector to the public sector. Government spending for public goods and services, including for example health care, education, social services, infrastructure, and public safety, will increase. Household and business spending or saving will be correspondingly reduced.

         ¶8 Thereafter, the Board received three motions for rehearing. Petitioners Douglas Bruce and William Banta separately objected to the title on the grounds that it is unfair and does not provide to voters the complete, correct, and true meaning of the Proposed Initiative. Proponents objected on the grounds that (1) the title did not fairly express the true meaning and intent of the Proposed Initiative and contained an impermissible catch phrase and (2) the abstract was misleading because its commentary regarding the Proposed Initiative's expected economic impact was "wholly speculative."

         ¶9 The Board ultimately denied Bruce's and Banta's motions for rehearing but granted in part Proponents' motion for rehearing, modifying the abstract to read, in pertinent part:

The measure is expected to increase revenue and spending for state and local governments over the long term, shifting a portion of the state's economy from the private sector to the public sector. If government spending for public goods and services, including for example health care, education, social services, infrastructure, and public safety, increases, as expected, household and business spending or saving will be correspondingly reduced.

(Emphases added.)

         ¶10 Bruce, Banta, and Proponents now each petition for review pursuant to section 1-40-107(2).

         II. Analysis

         ¶11 We begin by discussing the applicable standard of review. We then consider whether the title set by the Board complies with the clear title requirement of article V, section 1(5.5) of the Colorado Constitution. Concluding that it does, we proceed to consider whether "Taxpayer's Bill of Rights," as that phrase is used in the title, is an impermissible catch phrase, and we conclude that it is not. Finally, we review and reject Proponents' contention that the abstract is misleading.

         A. Standard of Review

         ¶12 "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. 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).

         ¶13 This court also has the authority to review abstracts proposed by the Title Board. In re Title, Ballot Title & Submission Clause for 2017-2018 #4, 2017 CO 57, ¶ 19, 395 P.3d 318, 323. The abstract that is included in the fiscal impact statement is final "unless modified in accordance with section 1-40-107." § 1-40-105.5(2)(a), C.R.S. (2019). In reviewing an abstract, we apply the same standard of review as we do for single subject and clear title findings, drawing all legitimate presumptions in favor of the propriety of the Title Board's decision and overturning the Board's decision only in a clear case. In re 2017-2018 #4, ¶ 20, 395 P.3d at 323.

         ¶14 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, we examine the initiative's wording to determine whether it and its title comport with the constitutional single subject and clear title requirements, and we review the fiscal impact statement to ensure that it complies with the applicable statutory requirements. See In re 2017-2018 #4, ¶¶ 19, 23-24, 395 P.3d at 323-24; In re 2013-2014 #90, ¶ 9, 328 P.3d at 159. In conducting this limited inquiry, we employ the general rules of statutory construction, and we give words and phrases their plain and ordinary meanings. In re 2013-2014 #90, ¶ 9, 328 P.3d at 159.

         B. Clear Title

         ¶15 As pertinent here, the Colorado Constitution requires that an initiative contain only one subject and that the subject be clearly expressed in its title. Colo. Const. art. V, § 1(5.5). The title and submission clause should allow voters, whether or not they are familiar with the subject matter of a particular proposal, to determine intelligently whether to support or oppose the proposal. In re 2013-2014 #90, ΒΆ 23, 328 P.3d at 162. Thus, "[i]n setting a title, the title board shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a 'yes/for' or ...


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