Byrne v. Title Board

907 P.2d 570, 1995 WL 700379

• Court: Supreme Court of Colorado
• Decided: December 18, 1995
• Docket: 95SA176
• Status: Published

Opinions

Justice SCOTT

delivered the Opinion of the Court.

Petitioners and registered electors Cletus E. Byrne, Jr. and Sherman S. Saeger bring this original proceeding for review of the action taken by the Initiative Title Setting Board (the “Title Board” or “respondents”). The petitioners were dissatisfied with the title, submission clause, and summary provided by the Title Board on an initiative petition considered at its last meeting in May, 1995. Petitioners question the Title Board’s authority to set a hearing on their motion more than forty-eight hours after it was filed. Because section 1 — 40—107(1), IB C.R.S. (1995 Supp.), expressly requires that such a motion must be acted upon within forty-eight hours, we hold that the Title Board erred.

I

On May 17, 1995, the Title Board was convened by the Secretary of State to designate and fix a proper title, ballot title and submission clause, and summary relating to an initiative proposing an amendment to article X of the Colorado Constitution (Amend Tabor No. 25).¹ During its meeting, the Title Board approved a title, ballot title and submission clause, and a summary (collectively referred to as “title and summary”). Not satisfied with the title and summary, on May 24, 1995, petitioners filed a motion for rehearing pursuant to section 1-40-107(1), IB C.R.S. (1995 Supp.), requesting that the Title Board reconsider the title and summary.

The Title Board determined it would consider petitioner’s motion on Wednesday, June 7,1995, two weeks later at its next scheduled meeting. When informed of the Title Board’s actions, petitioners filed their petition for mandamus and other relief with this court to challenge the Title Board’s act of setting a hearing more than forty-eight hours after the motion was filed. Petitioners claim the Title Board’s act of setting a hearing on petitioner’s motion two weeks later is contrary to section 1-40-107(1), which requires that motions for rehearing regarding matters determined at the Title Board’s last meeting in May “shall be heard within forty-eight hours after the motion is filed.” § 1 — 40-107(1), IB C.R.S. (1995 Supp.).

II

As a threshold question, we first address the issue of whether this matter is moot because the Title Board did conduct a hearing on petitioners’ motion prior to review by this court, on June 7, 1995.

Although the rehearing requested by the petitioners has already occurred, the matter in this case, like so many election cases, falls within the exception to the mootness doctrine which allows review of matters “capable of repetition yet evading review.” Urevich v. Woodard, 667 P.2d 760, 762 (Colo.1983) (citing American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); and Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969)). If petitioners were denied a decision in this case because the Title Board acted, though untimely, prior to our decision, there is no reason to believe that in the future under similar circumstances that they or some other elector will be able to obtain review before the Title Board acts the next time the.Title Board determines it need not consider a motion for rehearing within 48 hours of its last meeting in May. Each May, an elector might be placed in the same position as petitioners, without a review of the Title Board’s action. We therefore hold that this matter, which examines agency action capable of repetition yet evading review, is not moot.

Ill

A

The General Assembly has determined that statewide ballot issue elections, which were previously held only in even-numbered years, § 1-1-104(17), IB C.R.S. (1995 Supp.), may also be held on the first Tuesday of November of each odd-numbered year. § 1-41-102, IB C.R.S. (1995 Supp.). For ballot issues during both even-numbered and odd-numbered years, the Secretary of State convenes a Title Board consisting of the Secretary of State, the Attorney General, and the Director of the Office of Legislative Legal Services or their designees. § 1-40-106, IB C.R.S. (1995 Supp.); In re Title, Ballot Title and Submission Clause, and Summary regarding Amend Tabor 25, 900 P.2d 121, 124 (Colo.1995). By majority vote, the Title Board designates the title and summary for ballot issues. § 1-40-106. However, in order for an initiative issue to appear on the statewide ballot, a petition must be filed with the Secretary of State within six months from the date the Title Board fixes the title and summary. § 1-40-108, IB C.R.S. (1995 Supp.).

The Title Board meets to set the title and summary and to act on matters that may appear on an election ballot as specified in section 1-40-106(1), IB C.R.S. (1995 Supp.):

The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause, at public meetings to be held at 2 p.m. on the first and third Wednesdays of each month in which a draft or a motion for reconsideration has been submitted to the secretary of state.... The first meeting of the title board shall be held no sooner than the first Wednesday in December after an election, and the last meeting shall be held no later than the third Wednesday in May in the year in which the measure is to be voted on.

(Emphasis added.) The Title Board conducts its meetings to set ballot titles and summaries beginning no sooner than the first Wednesday in December. § 1-40-106(1). The last meeting of the Title Board must be held no later than the third Wednesday in the following May for initiative measures placed on the ballot that same year. Id.

Any dissatisfied registered elector may challenge the Title Board’s decision setting a title and summary by filing a motion for rehearing within seven days of the Board’s action. § 1-10-107(1). Section 1-40-107(1) further provides:

The motion for the rehearing shall be heard at the next regularly scheduled meeting of the title board; except that, if the title board is unable to complete action on all matters scheduled for that day, consideration of any motion for rehearing may be continued to the next available day, and except that, if the titles and summary protested were set at the last meeting in May, the motion shall be heard within forty-eight hours after the motion is filed.

(Emphasis added.) Thus, if a motion for rehearing is properly filed, the Title Board must set the matter for a timely rehearing either at its “next regularly scheduled meeting,” or “within forty-eight hours after the motion is filed.” Id. In accordance with section 1-40-107(1), if the titles and summary were set at the last meeting in May, the motion for rehearing must be heard within forty-eight hours.²

B

According to petitioners, the Secretary of State could not determine eligibility for the general election ballot for November 1995, an odd-numbered election year, before the title and summary had been set and petition signatures secured; therefore, the Title Board had to treat the initiative proposal as one eligible for the 1995 general election ballot. The respondents argue that because the Secretary of State had not made a final determination of eligibility of the proposed measure for the 1995 general election ballot, and because the secretary’s vote as a member of the Title Board may be accepted as a preliminary but not final determination as to eligibility, the Title Board properly deemed the subject initiative ineligible for the 1995 ballot. Thus, respondents conclude, the Title Board’s Wednesday May 17, 1995, meeting may not have been “the last meeting ... in the year in which the measure [was] to be voted on” and, hence, it was not necessary to hear petitioners’ motion for rehearing within forty-eight hours of its filing. We disagree with the respondents and reject the rationale of their argument.

In In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Proposed Election Reform Amendment, 852 P.2d 28 (Colo.1993) (Election Reform Amendment), and In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Workers Comp Initiative, 850 P.2d 144 (Colo.1993) (Workers’ Comp Initiative ),³ we examined the Title Board’s authority to set a title and summary. We held that the Title Board’s jurisdiction did not include “an election date or [the authority] to place any measure on the ballot,” Workers’ Comp Initiative, 850 P.2d at 145, further, “such a determination is premature” for contemplation while the title and summary are under consideration. Id.; Election Reform Amendment, 852 P.2d at 33. Respondents concede that when the Title Board set the rehearing date for June 7, 1995, as opposed to a time within the statutorily prescribed forty-eight hour period, it assumed the initiative measure was not eligible for placement on the November 1995 statewide ballot. The respondents further concede that the Secretary of State did not make a final determination that the initiative measure was not eligible for the November 1995 statewide ballot. In fact, respondents state in their response to our rule to show cause that

[t]he Secretary has not yet made a final determination about the election at which the measure will be held. This decision will not be made until after the title has been set. Because the decision has not been made by the Secretary, the issue is not ripe for review by this Court.

Answer to Rule to Show Cause at 9.

Respondents contend that when the Secretary of State casts her vote as a member of the Title Board, she acts not only as a member of the Title Board, but also in her official capacity as Secretary of State. Respondents also assert that because such action is preliminary but not final, it is action free from judicial review. Respondents’ position, while perhaps practical, is fraught with the potential for unintended consequences. By statute, the Title Board acts by majority vote, not the singular vote of the Secretary of State or any other member. See § 1-40-106(1), IB C.R.S. (1995 Supp.). At times, therefore, the Board’s actions may not be coterminous with the vote or views of the Secretary of State. For example, if the Secretary of State casts a minority vote opposing the vote of the majority of the Title Board, the Secretary’s lone dissent would not control. The majority vote of the two remaining members would cause the Title Board to act contrary to the Secretary’s vote. Moreover, respondents provide no basis upon which proponents or opponents of an initiated measure could determine when the secretary’s vote represents the secretary’s official action, either preliminary or final.

Respondents offer an approach that is both rational and practical; however, they cannot direct us to clear language in the controlling statute to support their position. We believe it more prudent not to view the Secretary of State’s actions as a member of the Title Board as coterminous with her actions as Secretary of State. Our charge as a reviewing court requires that the clear language of the controlling statutes guide us. Moreover, we are bound by our precedent, which holds that the authority to set an election date or to place any measure on the ballot “is vested in the Secretary of State alone.” Workers’ Comp Initiative, 850 P.2d at 145 (emphasis added). We only add today that such authority is not exercised while casting a single vote for the purpose of setting the title and summary of an initiative measure as a member of the Title Board.

C

Previously, we have stated that “[t]he [Title] Board has no authority to place any measure on a ballot,” concluding “[t]hat function is reserved solely to the secretary of state, who has not acted.” Election Reform Amendment, 852 P.2d at 33. The respondents do not offer any authority to support their proposition that the Title Board is able to determine, preliminarily or finally, the eligibility of initiative issues to appear on statewide ballots. Recognizing such power in the Title Board conflicts with the applicable statutes that place such authority with the Secretary of State. Under section 1-40-108, the Secretary of State, and not the Title Board, determines whether an initiative measure can be placed on the statewide ballot. That section provides:

No petition for any ballot issue shall be of any effect unless filed with the secretary of state within six months from the date that the titles, submission clause, and summary have been fixed and determined pursuant to the provisions of sections 1-40-106 and 1 — 40-107 and unless filed with the secretary of state within the time required by the state constitution before the election at which it is to be voted upon. A petition for a ballot issue for the election to be held in November of odd-numbered years shall be filed with the secretary of state within the same time before such odd-year election as is required by the state constitution for issues to be voted on at the general election. All filings under this section must be made by 3 p.m. on the day of filing.

§ 1-40-108(1), IB C.R.S. (1995 Supp.).

Section 1-40-108 suggests that the Secretary of State will exercise that authority only after the Title Board has acted to set the title and summary, and petitions have been circulated and signatures collected.⁴ Hence, because the Title Board had not set the title and summary at the time it acted on petitioners’ motion for rehearing, the Secretary of State could not have acted under section 1-40-108. As respondents concede, a final determination of eligibility for placement on the statewide ballot, which is subject to review, had not yet occurred. The fact that the Secretary of State had not yet made any determination as to the eligibility contemplated by section 1 — 10-108 did not grant to the Title Board any authority to determine the same.

The right to participate by initiative was implicated because the Title Board failed to hear the petitioners’ motion in a timely manner, which delayed the Title Board’s final determination setting the title and summary. Such a delay not only affects opponents, but proponents who could utilize the additional time guaranteed by statute for collection of signatures, public debate, or otherwise. Applying the petitioners’ interpretation, i.e., the motion must be heard within forty-eight hours, the Title Board would have heard petitioners’ motion on or before May 26, almost two weeks earlier than the June 7 date set by the Title Board.

In the face of such clear statutory language, we believe any change in the Title Board’s meeting or hearing dates which are specified by statute, should be accomplished by legislative enactment and not judicial intervention. We hold that the Title Board is obliged to hear motions for rehearing on ballot initiatives which were set during the last meeting in May within forty-eight hours, in accordance with section 1-40-106(1).⁵

IV

In sum, section 1-40-106(1), IB C.R.S. (1995 Supp.), states that “the last meeting [of the Title Board] shall be held no later than the third Wednesday in May in the year in which the measure is to be voted on.” Section 1-40-107(1) states that “if the titles and summary protested were set at the last meeting in May, the motion shall be heard within forty-eight hours after the motion is filed.” Id. Because the titles, submission clause, and summary for Amend Tabor No. 25 were set at its last meeting in May 1995, we hold that the Title Board erred by not hearing the petitioners’ motion for rehearing within forty-eight hours after the motion was filed, as expressly provided by section 1-40-107(1), IB C.R.S. (1995 Supp.).

Accordingly, we disapprove of the Title Board’s action.

MULLARKEY, J., dissents.

1 . In a related case, In re Title, Ballot Title and Submission Clause, and Summary Regarding Amend Tabor 25, 900 P.2d 121 (Colo.1995), we reversed the action of the Title Board and remanded that matter with directions that the Title Board set aside the title, ballot title and submission clause, and summary because the initiative did not comply with the single subject requirement of article V, section 1(5.5) of the Colorado Constitution.

2 . It is important to note our charge in interpreting § 1 — 40-107. The first goal of the court in construing a statute is to ascertain and give effect to the General Assembly's intent; to ascertain the legislative intent, courts must first look to the statutory language in question. Colorado Board of Medical Examiners v. Saddoris, 825 P.2d 39 (Colo.1992). Where statutory language is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction.

3 . Both Election Reform Amendment, 852 P.2d at 31, and Workers’ Comp Initiative, 850 P.2d at 145, addressed §§ 1-40-101 and-102, 1B C.R.S. (1992 Supp.). Section 1-40-101 was repealed and recodified as amended at 1-40-105, 1B C.R.S. (1995 Supp.). Section 1-40-102 was repealed and substantially recodified as amended at § 1-40-107, 1B C.R.S. (1995 Supp.). We find no basis to suggest that the 1993 amendments to Article 40 were intended to alter the result reached in Workers’ Comp Initiative and Election Reform Amendment.

4 . This proposition is not explicitly stated in § 1-40-108. However, it can be extrapolated from the following: (1) a petition cannot be circulated before the title, submission clause, and summary have been fixed, § 1-40-107(4), IB C.R.S. (1995 Supp.); (2) a petition has no effect until filed with the Secretary, § 1-40-108(1), IB C.R.S. (1995 Supp.); and (3) the Secretary would have no reason to make the required determination of eligibility for the ballot until an effective petition is before the Secretary.

5 . By our decision today, we do not address the Title Board's practice of conducting its meetings under two schedules and whether it may continue, in both even and odd numbered years, to hold meetings after the third Wednesday in May. That administrative practice is not before us.