In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2019-2020 #74
v.
Monica R. Colbert and Juliet Sebold, Respondents and In the Matter of the Title, Ballot Title and Submission Clause for 2019-2020 #75, Petitioner Kenneth Nova, and Ben Schler, LeeAnn Morrill, and Jason Gelender, Title Board.
Original
Proceeding Pursuant to § 1-40-107(2), C.R.S. (2019) , Appeal
from the Ballot Title Setting Board
Attorneys
for Petitioner: Recht Kornfeld, P.C., Mark G. Grueskin,
Denver, Colorado
Attorneys
for Respondents: Ireland Stapleton Pryor & Pascoe, PC,
William A. Hobbs, Benjamin J. Larson, Denver, Colorado
Attorneys
for Title Board: Philip J. Weiser, Attorney General, Michael
Kotlarczyk, Assistant Attorney General, Denver, Colorado
OPINION
HART,
JUSTICE
Page 760
[¶1]
Title 1, Article 40 of the Colorado Revised Statutes sets out
an elaborate process by which citizens who want to propose
amendments to state laws or the constitution may seek to
place their proposed initiatives on the ballot for a vote. In
this original proceeding, we are asked to decide whether a
statement in section 1-40-107(1)(c), C.R.S. (2019), of this
detailed scheme— that "[t]he decision of the title
board on any motion for rehearing shall be final, except as
provided in subsection (2) of this section, and no further
motion for rehearing may be filed or considered by the title
board"— means what it says. We conclude that it
does. Section 1-40-107 contemplates only a single Title Board
rehearing on a proposed initiative title. We therefore affirm
the decision of the Title Board declining to consider a
motion for a second rehearing on Proposed Initiative
2019-2020 #74 and Proposed Initiative 2019-2020 #75.
I. Facts and Procedural History
[¶2]
In April 2019, Monica Colbert and Juliet Sebold sought to
have titles set for eight ballot initiatives. Each of the
proposed initiatives was designed to create an "Expanded
Learning Opportunities Program" for Colorado children,
but each included a different funding mechanism. The Title
Board held a hearing on the eight initiatives on April 17,
2019, and made title determinations for the six initiatives
not at issue here. The Title Board declined to set titles for
Proposed Initiatives #74 and #75 after concluding that both
proposed initiatives contained multiple subjects in violation
of the Colorado Constitution.
[¶3]
Colbert and Sebold filed a motion for rehearing arguing that
Proposed Initiatives #74 and #75 each contained a single
subject and that the Title Board should not have refused to
set titles for the two proposals. At the same time, Kenneth
Nova ("Petitioner") filed a motion for rehearing
regarding the Title Boards decision to set titles in two of
the other six related initiatives.
[¶4]
The Title Board held a rehearing on the proposed initiatives
on April 26, 2019. As relevant here, the Title Board reversed
its previous decision on the single-subject issue and
proceeded to set titles for Proposed Initiatives #74 and #75.
Neither Petitioner, nor his counsel who was present at the
rehearing, voiced any objection to the Title Boards decision
to reverse its earlier determination or to any aspect of the
titles ultimately set for the two initiatives.
[¶5]
On April 29, Petitioner filed a motion for rehearing, seeking
reconsideration of the titles set at the April 26 rehearing
for Proposed Initiatives #74 and #75. The Title Board
declined to hold a second rehearing, concluding that it
lacked jurisdiction to consider Petitioners motion because
of the statutory command that, following a Board decision on
rehearing, "no further motion for rehearing may be filed
or considered by the title board." § 1-40-107(1)(c).
[¶6]
These appeals followed.
II. Analysis
[¶7]
After setting forth the standard of review, we consider
whether the language of section 1-40-107(1)(c) is clear and
unambiguous. Although the language of that provision is clear
and is consistent with the overall statutory scheme in
permitting only a single rehearing on any proposed
initiative, we consider in turn the arguments Petitioner
advances to suggest statutory ambiguity. We then turn to the
legislative history of the 2012 amendment adding the disputed
language and conclude based on this history that the intent
of the legislature was to limit the number of rehearing
proceedings before the Title Board to only one on a proposed
initiative. We therefore affirm the conclusion of the Title
Board that it lacked jurisdiction to consider Petitioners
motion for a second rehearing on Proposed Initiatives #74 and
#75.
Page 761
A. Standard of Review
[¶8]
Whether the Title Board had jurisdiction to consider
Petitioners motion for rehearing is a question of statutory
interpretation and is subject to de novo review. See
In re Title, Ballot Title, & Submission Clause for
2013-2014 #103, 2014 CO 61, ¶ 11, 328 P.3d 127, 129. Our
primary responsibility in interpreting any statute is to
"give effect to the legislative purpose underlying its
enactment." In re Title, Ballot Title & Submission
Clause, & Summary for 1999-2000 #219, 999 P.2d 819, 820
(Colo. 2000). Therefore, if the language of the statute
"is clear and unambiguous on its face, there is no need
to apply rules of statutory construction because it may be
presumed that the legislature meant what it clearly
said." Id. If a statute is ambiguous, we
"construe [it] in light of the General Assemblys
objective, employing the presumption that the legislature
intended a consistent and sensible effect." Id.
at 820-21.
B. Rehearing Before the Title Board
[¶9]
The process for a motion for rehearing of an initial decision
of the Title Board is set forth in section 1-40-107. This
section explains that any proponent of an initiative or any
registered elector who disagrees with the Title Boards
decision as to whether the initiative meets the
constitutional single-subject requirement or who is not
satisfied with the titles set by the Board may file a motion
for rehearing. See § 1-40-107(a)(1)(I). It sets out
a timeline for the filing and consideration of any motions
for rehearing. See id. (a motion must be filed
within seven days of the initial decision); § 1-40-107(1)(c)
(a motion will generally be considered at the next meeting of
the Title Board). And it details what kinds of claims can be
made in motions for rehearing. See § 1-40-107(1)(b).
[¶10]
Finally, this section provides that "[t]he decision of
the title board on any motion for rehearing shall be final,
except as provided in subsection (2) of this section, and no
further motion for rehearing may be filed or considered by
the title board." § 1-40-107(1)(c). The exception
provided in subsection (2) permits the proponents of an
initiative, any elector who filed a petition for rehearing,
or any other registered elector who appeared at the rehearing
and supported or opposed an initiative to file an appeal with
this court within seven days, seeking review of the Title
Boards decision. § 1-40-107(2). Together, section
1-40-107(1)(c) and section 1-40-107(2) establish
unambiguously that the only recourse available to a person
who objects to the Title Boards decision on rehearing is to
petition this court for review. Filing a new motion for
rehearing with the Title Board after the Board has made its
rehearing decision is foreclosed by the statutes plain
language.
[¶11]
This prohibition on holding a second rehearing proceeding
before the Title Board regarding a proposed initiative is
consistent with the "stringent time restraints [that]
are placed on the proponents and opponents of initiatives, as
well as on the Title Board" in order to ensure that
initiative proponents have sufficient time to collect
signatures and the public has time to consider the proposed
initiative. In re 1999-2000 #219, 999 P.2d at 821.
Consequently, similar time limits are pervasive in the
statutory process for citizen-proposed amendments to our laws
or constitution. The Office of Legislative Legal Services,
the first stop on a proposed initiatives path, is obligated
to complete its review within two weeks of receiving the
proposal. § 1-40-105(1), C.R.S. (2019). The proposal then
travels to the Secretary of States office, which must
present it to the Title Board. § 1-40-106(1), C.R.S. (2019).
The Title Board sits only from the first Wednesday in
December to the third Wednesday in April each year.
Id. After the Title Board considers the proposal,
anyone objecting to its initial decision must file a motion
for rehearing within seven days. § 1-40-107(1)(a). The
rehearing is generally held no more than seven days later, at
the next regularly scheduled meeting of the Title Board. §
1-40-107(1)(c). This ensures that "[t]he title for the
proposed law or constitutional amendment ... shall be
completed, except as otherwise required by section 1-40-107,
within two weeks after the first meeting of the title
board" on the proposed initiative. § 1-40-106(b).
Finally, anyone who appeared at the rehearing and objects to
the decision of the Title Board on rehearing,
Page 762
whether or not that person had himself filed a motion for
rehearing, may file an appeal with this court within seven
days, and we are directed to resolve the objection
"promptly." § 1-40-107(2). In the context of this
expedited process, prohibiting multiple rehearing proceedings
before the Title Board and instead requiring proponents and
objectors to direct their concerns to this court is not only
what the statute provides, it is also quite reasonable.
C. Petitioners Arguments for Statutory
Ambiguity
[¶12]
Petitioner makes three arguments to counter what appears to
be a clear statutory prohibition on successive motions for
rehearing leading to successive rehearing proceedings. First,
he argues that section 1-40-107(1)(c) should be read to
prohibit "further" motions for rehearing only from
a person who has already filed a first motion for rehearing.
Second, and relatedly, he argues that certain language in
section 1-40-107(1)(a) must be read to permit successive
motions. And third, he argues that prohibiting multiple
rehearing proceedings would lead to absurd results. We
consider each of these arguments in turn.
[¶13]
Petitioner first argues that in amending section
1-40-107(1)(c) in 2012 to provide that "no further
motion for rehearing may be filed or considered by the title
board," the legislature only intended to bar the same
objector from filing serial motions for rehearing. In support
of this position, he points to two earlier decisions from
this court in which we held that the same objector could not
file multiple motions for rehearing. See In re
1999-2000 #219, 999 P.2d at 822; In re Title, Ballot
Title & Submission Clause, & Summary for 1999-2000 #215,
3 P.3d 447, 448 (Colo. 2000). Petitioner argues that section
1-40-107(1)(c) should be understood to have essentially
codified these decisions.
[¶14]
But that is not what the language in the statute provides. If
the legislature had intended to impose a prohibition on
serial motions for rehearing by the same objector, it could
easily have done so. Instead, section 1-40-107(1)(c) states
that "[t]he decision of the title board on any
motion for rehearing shall be final, except as provided
in subsection (2) of this section, and no further motion
for rehearing may be filed or considered by the title
board ," (emphases added), with no qualification on
that prohibition other than its reference to the right of
review provided in section 1-40-107(2).
[¶15]
Second, Petitioner argues that section 1-40-107(1)(c) must be
understood to permit more than one petition for rehearing
when, as here, the title is not set until the first
rehearing. His argument rests on an interpretation of section
1-40-107(1)(a)(I), which provides that
[a]ny person presenting an initiative petition or any
registered elector who is not satisfied with a decision of
the title board with respect to whether a petition contains
more than a single subject ... or who is not satisfied with
the titles and submission clause provided by the title board
... may file a motion for a rehearing ... within ...