Campbell v. Hobbs

76 P.3d 460, 2003 WL 22073054
CourtSupreme Court of Colorado
DecidedSeptember 8, 2003
DocketNos. 03SA115, 03SA116
StatusPublished
Cited by6 cases

This text of 76 P.3d 460 (Campbell v. Hobbs) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Hobbs, 76 P.3d 460, 2003 WL 22073054 (Colo. 2003).

Opinions

Chief Justice MULLARKEY

delivered the Opinion of the Court.

These appeals pursuant to section 1-40-107(2), 1 C.R.S. (2002), challenge the actions of the title board ("the board") setting the title, ballot title, submission clause, and summary (collectively, "the title") for proposed initiatives 2003-04 # 32 ("# 82") and 2003-04 #83 ("#88"); and refusing to set titles for proposed initiatives 2008-04 #21 ("# 21") and 2008-04 # 22 ("# 22").1

We hold that # 21, # 22, # 82, and # 83 all contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. Accordingly, with respect to #21 and # 22, we affirm the action of the board refus[461]*461ing to set the titles. With respect to # 32 and #33, we reverse the action of the board and remand this matter to the board with directions to strike the titles and return the initiatives to the proponents. Because we find that all four measures contain multiple subjects, we do not consider whether the titles set by the board conform to the requirements of section 1-40-106(8).

I. Facts and Procedural History

Each of the proposed initiatives would add a new section entitled "Petitions" to article VII, the "Suffrage and Elections" article of the Colorado Constitution. Much of the language in the four measures is identical. The dispute centers on a sentence in subsection 3(a) of # 21 and # 22, which states: "Except on courts, lawyers shall not be ballot title setters" ("the attorney provision"). By a vote of 2-1, the board refused to set titles for #21 and #22, finding that the measures contained multiple subjects. Board member Alan J. Gilbert concluded that the attorney provision addressed a separate subject because it imposed a limit on the authority of the Attorney General. Board member William Hobbs concurred with Gilbert on the attorney provision, and he also would have found additional subjects in other parts of the initiatives.

In #32 and #33, Gilbert's single subject concerns were addressed. The attorney provision was changed to read: "Except on courts, lawyers other than the Colorado attorney general in person shall not be ballot title setters" (emphasis added). Subsequent ly, the board voted 2-1 to set titles for # 82 and #38, with Gilbert now finding only a single subject and Hobbs again finding multiple subjects.

II. Analysis

Under article V, section 1(5.5) of the Colorado Constitution, no initiative can be proposed or enacted that contains more than one subject. Colo. Const. art. V, § 1(5.5). To violate the single subject requirement, an initiative must: 1) "relate to more than one subject" and 2) have "at least two distinct and separate purposes which are not dependent upon or connected with each other." In re Public Rights in Waters II, 898 P.2d 1076, 1078-79 (Colo.1995).

We need not discuss the development and application of this test in detail here because we have done so in three recent cases that address earlier versions of the initiatives now before us. See In re Proposed Initiative 2001-02 # 43, 46 P.3d 438 (Colo.2002) ("# 43"); In re Proposed Petition to Add Section 2 of Article VII to the Colorado Constitution, 907 P.2d 586 (Colo.1995) ("Petition Procedures II"); In re Proposed Petition to Add Section 2 of Article VII to the Colorado Constitution, 900 P.2d 104 (Colo.1995) ("Petition Procedures I"). The initiatives at issue in both #48 and Petition Procedures I contained multiple subjects, and the initiative involved in Petition Procedures II did not.

We described the initiative in Petition Procedures II as having a "single, if quite general, subject." - Petition Procedures II, 907 P.2d at 590. It proposed a "battery" of procedures governing the exercise of the right of initiative and referendum. Id. at 590-91; see also # 43, 46 P.3d at 444.

In Petition Procedures I, we found several subjects. In addition to changing the initiative and referendum procedures, the proposal also addressed recall rights. It retroactively created fundamental rights in all constitutional and charter initiatives adopted after 1990, and redefined terms used in those initiatives. Petition Procedures I, 900 P.2d at 109.

In # 43, we examined each challenged provision to determine if it was a procedural change directly related to the central purpose of the initiative. Relying on Petition Procedures I, we described the central purpose of the initiative as "liberalizing the process by which initiative and referendum petitions are placed on the ballot...." # 43, 46 P.3d at 444. We found three provisions that were not directly related to that central purpose. These were provisions: eliminating the single subject requirement; prohibiting the repeal of article X, section 20 of the constitution by a single initiative; and prohibiting referendum petitions that reduce property rights. Id. at 448.

[462]*462As in # 43, the purpose of initiatives # 21, #22, # 32, and #88 is to liberalize the procedure for initiative and referendum petitions. All four of the initiatives are substantially similar, and all four state in subsection (1) that the purpose is "to create fundamental rights to strengthen citizen control of government."2 The attorney provision in subsection (8)(a) of #21 and #22, however, prohibits any attorney from participating as a member of the title board. Subsection (8)(a) of #32 and #38 contains the same provision, but exempts the Attorney General from the prohibition.

The General Assembly established the title board "to designate and fix" a title "for each proposed law or constitutional amendment" that will appear on the ballot. § 1-40-106(1), 1 C.R.S. (2002). The members of the board are "the secretary of the state, the attorney general, and the director of the office of legislative legal services or the director's des-ignee." Id.

In the cases now before us, a majority of the board reasoned that the attorney provision included in #21 and #22 ("Except on courts, lawyers shall not be ballot title setters.") created a separate subject because it was not procedural in nature. Rather, it created a substantive restriction on the power of the Attorney General who, under the constitution, must be an attorney and has such duties as are provided by the constitution and laws of the state. Colo. Const. art. IV, §§ 4 and 1(1). Under the attorney provision, the Attorney General could neither be a member of the title board nor delegate those duties to an attorney.

Although we agree that the attorney provision creates an additional subject, we base our reasoning on broader grounds. We acknowledge that the attorney provision would restrict the powers and duties of the Attorney General. It also limits the powers and duties of the Secretary of State and the General Assembly to designate who will serve as the other two members of the title board.

More generally and perhaps more importantly, however, the provision also limits the substantive rights of all attorneys.

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Bluebook (online)
76 P.3d 460, 2003 WL 22073054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-hobbs-colo-2003.