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 ...