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In re Title

Supreme Court of Colorado

January 13, 2020

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 Kenneth Nova, Petitioner: 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.

         ¶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 Board's 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 Board's 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 Petitioner's 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 Petitioner's motion for a second rehearing on Proposed Initiatives #74 and #75.

         A. Standard of Review

         ¶8 Whether the Title Board had jurisdiction to consider Petitioner's 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 Assembly's 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 Board's 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 Board's 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 Board's 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 statute's 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 initiative's 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 State's 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, 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. Petitioner's 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 ...

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