Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 26, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ADVANCE COLORADO, a Colorado non-profit; GEORGE HANKS “HANK” BROWN, an individual; STEVEN WARD, an individual; CODY DAVIS, an individual; JERRY SONNENBERG, an individual; CARRIE GEITNER, an individual,
Plaintiffs - Appellants,
v. No. 23-1282
JENA GRISWOLD, in her official capacity as Secretary of State of Colorado,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:23-CV-01999-PAB-SKC) _________________________________
Jennifer H. Weddle (Troy A. Eid and Harriett McConnell Retford with her on the briefs), Greenberg Traurig, LLP, Denver, Colorado, for Plaintiffs – Appellants.
Michael Kotlarczyk, Senior Assistant Attorney General (Philip J. Weiser, Attorney General, and J. Greg Whitehair, Assistant Attorney General, with him on the brief), Colorado Department of Labor, Denver, Colorado, for Defendant – Appellee. _________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________
MURPHY, Circuit Judge. _________________________________ Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 2
I. Introduction
In 2021, the Colorado state legislature passed The Ballot Measure Fiscal
Transparency Act (“HB 21-1321”), which requires certain language be included in
state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal
contains a tax change affecting state or local revenues, the measure’s title must
incorporate a phrase stating the change’s impact on state and district funding
priorities. In 2023, Appellants (collectively, “Advance Colorado”) proposed two tax
reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot
Title Setting Board (the “Title Board”) included the mandated transparency language
in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as
unconstitutionally compelling its political speech. The district court denied the
corresponding request for a preliminary injunction, concluding the titling process
qualified as government speech and, therefore, Advance Colorado was not likely to
succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not
result in improperly compelled speech under the First Amendment of the United
States Constitution. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1292, this
court affirms the district court’s order denying a preliminary injunction.
II. Background
a. Factual History
Colorado law offers citizens the opportunity to propose their own laws or
constitutional amendments through citizen-initiated ballot measures. Colo. Const.
art. V, § 1(1). Qualifying proposals under this process must complete a comment and
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review period before being delivered to the Secretary of State’s office for titling.
Colo. Rev. Stat. §§ 1-40-105(1), 106(1). Colorado’s Title Board is responsible for
ensuring each proposal receives a clear and direct title. Id. § 1-40-106(3)(b). Ballot
titles are entirely crafted by the Title Board and proposal sponsors do not submit any
title language for consideration. Id. §§ 1-40-105(4), 106(1). Once set, titles may
appear in three places: (a) the petition form used by advocates to gather signatures;1
(b) an official non-partisan voter information booklet; and (c) the ballot itself. Id.
at § 1-40-102(2), 110(2); Colo. Const. art. V, § 1(7.5).
After the Title Board deliberates and sets a title, dissatisfied proponents may
file a motion for rehearing with the Secretary of State. Colo. Rev. Stat.
§ 1-40-107(1)(a)(I). If advocates disagree with the Title Board’s rehearing outcome,
they may further petition the Colorado Supreme Court for review. Id. § 1-40-107(2).
Generally, however, “[t]he Title Board is vested with considerable discretion in
setting the title and the ballot title and submission clause.” Cordero v. Leahy (In re
Title, Ballot Title & Submission Clause for 2013-2014 #90), 328 P.3d 155, 159
(Colo. 2014).
HB 21-1321 implemented several rules regarding the contents of citizen-
initiated ballot titles involving “tax change[s].” Colo. Rev. Stat. § 1-40-106.
1 When placed on the petition for signatures, each title is preceded by the following disclaimer: “The Ballot title and submission clause as designated and fixed by the Initiative Title Setting Review Board is as follows: . . .”. 3 Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 4
HB 21-1321 includes two language requirements for initiatives implicating
reductions in tax revenue:
(e) For measures that reduce state tax revenue through a tax change, the ballot title must begin “Shall there be a reduction to the (description of tax) by (the percentage by which the tax is reduced in the first full fiscal year that the measure reduces revenue) thereby reducing state revenue, which will reduce funding for state expenditures that include but are not limited to (the three largest areas of program expenditure) by an estimated (projected dollar figure of revenue reduction to the state in the first full fiscal year that the measure reduces revenue) in tax revenue․․․?”. If the ballot measure specifies the public services or programs that are to be reduced by the tax change, those public services or programs must be stated in the ballot title. If the public services or programs identified in the measure are insufficient to account for the full dollar value of the tax change in the first full fiscal year that the measure reduces revenue, then the three largest areas of program expenditure must be stated in the bill title along with the public services or programs identified in the measure. The estimates reflected in the ballot title shall not be interpreted as restrictions of the state's budgeting process.
(f) For measures that reduce local district property tax revenue through a tax change, the ballot title must begin “Shall funding available for counties, school districts, water districts, fire districts, and other districts funded, at least in part, by property taxes be impacted by a reduction of (projected dollar figure of property tax revenue reduction to all districts in the first full fiscal year that the measure reduces revenue) in property tax revenue․․․?”. The title board shall exclude any districts whose property tax revenue would not be reduced by the measure from the measure's ballot title. The estimates reflected in the ballot title shall not be interpreted as restrictions of a local district's budgeting process.
Id. § 1-40-106(3)(e)–(f) (emphasis added).
Advance Colorado sponsored two initiatives for the 2024 statewide ballot that
proposed tax changes: Colorado Proposed Initiative 2023–2024 #21 (“Initiative 21”),
which includes a limit on property tax increases; and Colorado Proposed Initiative
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2023–2024 #22 (“Initiative 22”), which includes a reduction in sales and use tax
rates. In April 2023, the Title Board determined both measures triggered the language
requirements of HB 21-1321 and set titles accordingly. Initiative 21’s title was stated
as follows:
Shall funding available for counties, school districts, water districts, fire districts, and other districts funded, at least in part, by property taxes shall be impacted by a reduction of $2.2 billion in property tax revenue by an amendment to the Colorado constitution and a change to the Colorado Revised Statutes concerning a 3% annual limit on property tax increases, and, in connection therewith, creating an exception to the limit if a property’s use changes or its square footage increases by more than 10%, in which case, the property is reappraised, and, beginning in fiscal year 2024–2025, allowing the state to annually retain and spend up to $100 million of excess state revenue, if any, as a voter-approved revenue change to offset reduced property tax revenue and to reimburse local governments for fire protection?
Likewise, the Title Board set Initiative 22’s title as the following:
Shall there be a reduction to the state sales and use tax rate by 0.61 percent, thereby reducing state revenue, which will reduce funding for state expenditures that include but are not limited to education, health care policy and financing, and higher education by an estimated $101.9 million in tax revenue, by a change to the Colorado Revised Statutes concerning a reduction in state sales and use taxes, and, in connection therewith, reducing the state sales and use tax rate from 2.90 percent to 2.89 percent from July 1, 2024, through June 29, 2025, and eliminating the state sales and use tax for one day on June 30, 2025?
In accordance with policy, the Colorado Legislature Council Staff released
fiscal summaries analyzing the respective economic impact of each proposal.
Importantly, both measures implicate the Colorado Taxpayer’s Bill of Rights
(“TABOR”). Colo. Const. art. X, § 20. Among its many mandates, TABOR requires
state and local governments to refund taxpayers any revenues appropriated in excess
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of the prior year’s spending. Id. art. X, § 20(7). Based on then-current forecasts, the
Legislature Council’s fiscal summary for Initiative 22 concluded the measure would
not likely impact the state’s overall budget. Rather, given the probability of a state
revenue surplus, the measure was projected only to reduce the amount available for
taxpayer refunds under TABOR. The fiscal summary for Initiative 21 identified that
the measure would decrease local property tax revenue and influence school
financing. It further determined the measure would increase the amount of revenue
the state could retain and, in turn, decrease the amount used for TABOR refunds.
b. Procedural History
Following the Title Board’s determinations, Advance Colorado filed motions
for rehearing on both Initiative 21 and 22. The Title Board denied the motions, and
Advance Colorado elected not to appeal either decision to the Colorado Supreme
Court.2 Initiative 22 became final on April 19, 2023, and after an unrelated challenge,
Initiative 21 became final on May 19, 2023. Advance Colorado refused, however, to
circulate any petition to gather signatures without a preliminary injunction
prohibiting HB 21-1321’s application.
In August 2023, Advance Colorado commenced this action, alleging
HB 21-1321 unconstitutionally compelled its political speech in violation of the First
2 Advance Colorado argues it already appealed a substantively similar proposal to Initiative 22 to the Colorado Supreme Court during the 2021–2022 ballot cycle. The court summarily affirmed the Title Board’s determination without discussion of HB 21-1321’s language requirements. As a result, Advance Colorado asserts it has functionally exhausted its state court remedies. 6 Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 7
Amendment.3 One week later, it filed a motion for preliminary injunctive relief,
requesting that the Secretary of State convene the Title Board to reauthorize the
initiatives’ titles without the language mandated by HB 21-1321. Advance Colorado
argued the law’s requirements improperly foist oppositional political viewpoints on
citizen-led ballot measures and are specifically misleading regarding Initiatives 21
and 22. Contrary to their assigned titles, Advance Colorado asserted that Initiative 21
proposes only a property tax cap, not a tax reduction; and Initiative 22 would only
result in smaller TABOR refunds, not funding decreases to popular healthcare and
education programming.
Following a hearing on the preliminary injunction motion, the district court
concluded Advance Colorado could not show the requisite likelihood of success on
the merits to grant the motion. In its analysis, the court considered the factors used
for determining the boundary between government and private speech as outlined in
Shurtleff v. City of Bos., 596 U.S. 243, 252 (2022). Namely, it concluded the history
of the expression; the public’s likely perception as to who is speaking; and the extent
to which the government has shaped the expression all indicated Colorado’s titling
system was government speech not subject to a First Amendment compelled speech
3 In addition to facial and as-applied challenges under the U.S. Constitution, Advance Colorado’s complaint included a third claim arising under Article V of the Colorado Constitution. It alleged HB 21-1321 violated the state’s requirement that ballot titles be clear and direct. Advance Colorado failed to raise this claim in its appellate briefing, thereby rendering the issue waived. SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009) (“An issue or argument insufficiently raised in a party’s opening brief is deemed waived.”). 7 Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 8
claim. In making this determination, the court particularly pointed to the decades-
long history of the Title Board’s practices in Colorado; the heavy regulation of the
initiative process by the state government; and limited evidence voters perceive
ballot title language to be the Appellants’ own, particularly in light of the disclaimer
stating otherwise on petition forms. See supra n. 1.
III. Analysis
a. Standard of Review
This court reviews the denial of a preliminary injunction for abuse of
discretion. Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.
2007). “An abuse of discretion occurs when the district court commits an error of law
or makes clearly erroneous factual findings.” Att’y Gen. of Oklahoma v. Tyson Foods,
Inc., 565 F.3d 769, 775 (10th Cir. 2009) (quotations omitted). In conducting this
analysis, “we examine the district court’s legal determinations de novo, and its
underlying factual findings for clear error.” Id. at 776.
To succeed on a motion for preliminary injunction, the moving party must
establish “(1) a substantial likelihood of prevailing on the merits; (2) irreparable
harm unless the injunction is issued; (3) [that] the threatened injury outweighs the
harm that the preliminary injunction may cause the opposing party; and (4) [that] the
injunction, if issued, will not adversely affect the public interest.” Davis v. Mineta,
302 F.3d 1104, 1111 (10th Cir. 2002) (quotation omitted), abrogated on other
grounds by Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276
(10th Cir. 2016). Preliminary injunctive relief is considered an “extraordinary
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remedy” that requires the moving party make a “clear and unequivocal showing it is
entitled to such relief.” Colorado v. U.S. Env’t Prot. Agency, 989 F.3d 874, 883 (10th
Cir. 2021) (quotations omitted).4
b. First Amendment Framework
To state a compelled-speech claim under the First Amendment, “a party must
establish (1) speech; (2) to which [it] objects; that is (3) compelled by some
governmental action.” Cressman v. Thompson, 798 F.3d 938, 951 (10th Cir. 2015).
The First Amendment, therefore, works to “restrict[] government regulation of
private speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). Similar
to citizens, however, the government has a right to “speak for itself.” Bd. of Regents
of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000). In turn, purely
government speech is generally “exempt from First Amendment scrutiny.” Johanns v.
Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005).
“The boundary between government speech and private expression can blur
when . . . a government invites the people to participate in a program.” Shurtleff, 596
4 Certain requests for preliminary injunctions are disfavored, including those that are mandatory, “alter the status quo,” or “afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” U.S. Env’t Prot. Agency, 989 F.3d at 883–84. When reviewing a disfavored preliminary injunction request, this court requires the moving party to “make a heightened showing of the four factors.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1209 (10th Cir. 2009). Given that Advance Colorado’s request aims to alter the status quo by affirmatively requiring the Secretary of State to reconvene the Title Board, the district court determined the motion was disfavored. We conclude Advance Colorado fails to show a substantial likelihood of success on the merits under the normal standard, see infra § III.b, and therefore need not determine whether the specific injunction requested was disfavored. See U.S. Env’t Prot. Agency, 989 F.3d at 884. 9 Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 10
U.S. at 252. Under such circumstances, it becomes difficult to discern when
“government-public engagement” transmits the government’s own message or the
message of its citizen-participants. Id. In analyzing which side of the watershed
government engagement falls, “we conduct a holistic inquiry designed to determine
whether the government intends to speak for itself or to regulate private expression.”
Id. This analysis is not a mechanical “application of rigid factors,” but rather looks to
“a case’s context.” Id. Evidence typically used in drawing such conclusions includes
“the history of the expression at issue; the public’s likely perception as to who (the
government or a private person) is speaking; and the extent to which the government
has actively shaped or controlled the expression.” Id.; see also Walker v. Texas Div.,
Sons of Confederate Veterans, Inc., 576 U.S. 200, 208–14 (2015) (holding specialty
license plate designs constitute government speech); VDARE Found. v. City of
Colorado Springs, 11 F.4th 1151, 1170 (10th Cir. 2021) (holding public mayoral
announcement to be government speech).
c. Government Speech Analysis
To receive a preliminary injunction, the moving party must first demonstrate a
substantial likelihood of success on the merits of its claims. U.S. Env't Prot. Agency,
989 F.3d at 883. Considering the evidence presented and the First Amendment
framework set out in Shurtleff, Advance Colorado has failed to meet this standard.
596 U.S. at 252. The first and third Shurtleff factors—history and government control
of expression—work in tandem to underscore Colorado’s ballot titling qualifies as
government speech. The Colorado Title Board has existed and set ballot titles in a
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similar manner for over eighty years. See An Act Relating to the Initiative and
Referendum, ch. 147, § 1, 1941 Colo. Sess. Laws 480, 480. As is the case today,
when it was first formed the Title Board was solely responsible for setting a
measure’s title without the influence of proposal advocates. Compare id. with Colo.
Rev. Stat. § 1-40-105(4). The long history of the Title Board’s practices reflects the
substantial control the government asserts over initiative titles and its legitimate
interest in providing a standardized process for presenting measures to voters. Titling
is statutorily separated and preserved as an express function of the government under
Colorado law. See id. § 1-40-106. Despite the catalytic role played by citizens in the
initiative process, ballot titles are fully and exclusively crafted by the government
through the Secretary of State’s office. Indeed, “[t]he fact that private parties take
part in the design and propagation of a message does not extinguish the governmental
nature of the message or transform the government’s role into that of a mere forum-
provider.” Walker, 576 U.S. at 217. Advance Colorado has failed to offer any
evidence refuting this history of substantial government control.
Advance Colorado is also unable to demonstrate that, under the second
Shurtleff factor, the general public perceives initiative titles to be the speech of
private citizen-advocates. Appellants focused their argument regarding voter
confusion on signature petitions and offered limited testimonial evidence indicating
citizens do not always understand the origin of title language. As the district court
noted, however, Advance Colorado fails to address the disclaimer shown
immediately above the ballot title indicating the language is “designated and fixed”
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by the Title Board. See supra n.1. This statement plainly communicates to voters that
the title is drafted by the government and does not represent the proponents’
expression. Advance Colorado provides no additional evidence calling into question
the public’s perception of who writes the title. Given this minimal support, the robust
history of titles being government expression, and the near total control the
government asserts over titling, our holistic review clearly demonstrates Colorado’s
titling process qualifies as government speech. Shurtleff, 596 U.S. at 252.5
Advance Colorado urges this court to conclude the mandatory and misleading
effect of HB 21-1321 renders the law unconstitutional under the First Amendment.
HB 21-1321’s requirements, it argues, inevitably mischaracterize an initiative’s
purpose and, as a result, compel the speech of advocates by association. Nonetheless,
whether the content of the expression may be misleading does not bear on the
underlying question of who owns the speech. Colorado law provides a separate,
statutorily protected appeal process for proponents who believe the Title Board has
5 Instead of using Shurtleff to analyze whether Colorado ballot titles are private speech or government speech, Advance Colorado urges this court to analogize the issue to government regulations on political speech or limitations on commercial disclosures. The authority it provides, however, is of limited use because these cases contemplate clearly private or commercial speech. See, e.g., Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) (considering government regulation of political association on ballots); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (analyzing distribution of anonymous political literature); Zauderer v. Off. of Disciplinary Couns. of Supreme Ct., 471 U.S. 626, 651 (1985) (reviewing government disclosure requirements imposed on commercial entities). Here, we confront purely government speech, not government regulation of private speech. Thus, this court finds Advance Colorado’s private political speech and commercial disclosure authority unavailing. 12 Appellate Case: 23-1282 Document: 010111038764 Date Filed: 04/26/2024 Page: 13
provided a substantively unfair title. See, e.g., Bruce v. Hedges (In re Ballot Title &
Submission Clause for 2019-2020 #3 “State Fiscal Policy”), 454 P.3d 1056, 1060
(Colo. 2019) (considering whether a ballot measure aiming to repeal TABOR was
clear). The Free Speech Clause, however, typically “does not regulate government
speech.” Summum, 555 U.S. at 467. Under Shurtleff, the Colorado initiative titling
system squarely qualifies as government speech and Advance Colorado has not
otherwise shown its own speech was improperly compelled by the government
speech.6 Accordingly, it cannot demonstrate a substantial likelihood of success on the
merits of its claims and, therefore, the district court did not abuse its discretion in
denying the preliminary injunction.
IV. Conclusion
The order denying Advance Colorado’s request for a preliminary injunction by
the United States District Court for the District of Colorado is hereby affirmed.7
6 Indeed, even if speech is the government’s own, it may still violate the First Amendment if it “compel[s] private persons to convey the government’s speech.” Cressman, 798 F.3d at 949 (quotation omitted); see also Semple v. Griswold, 934 F.3d 1134, 1143 (10th Cir. 2019) (holding government measures are improperly compulsory when they punish or threaten to punish protected speech through regulatory or proscriptive acts). With the exception of limited discussion in its reply briefing, Advance Colorado has consistently asserted that the ballot titles are its own private speech and has not argued, in the alternative, that they are improperly compulsory government speech. Given this lack of argument, this court treats the issue as waived. See SCO Grp., Inc., 578 F.3d at 1226; Star Fuel Marts, LLC v. Sam’s E., Inc., 362 F.3d 639, 647 (10th Cir. 2004) (“Generally, arguments raised for the first time on appeal in an appellant’s reply brief are waived.”). 7 Given the disposition of this appeal, Advance Colorado’s Motion to Expedite Review of this case is denied as moot. 13