Court v. Pool

916 P.2d 528, 20 Brief Times Rptr. 759, 1996 Colo. LEXIS 173

• Court: Supreme Court of Colorado
• Decided: May 13, 1996
• Docket: No. 96SA98
• Status: Published

Opinions

Justice SCOTT

delivered the Opinion of the Court.

Pursuant to section 1-40-107(2), IB C.R.S. (1995 Supp.), petitioners Lois Court and Joseph S. Drew (proponents) filed a petition to review the action of the initiative title setting board (Board). The Board refused to set a title, ballot title and submission clause, and summary for Initiative 1996-4 (Initiative) (attached as APPENDIX A) because it determined that the Initiative violated the single subject requirement of article V, section 1(5.5) of the Colorado Constitution and section 1^10-106.5, IB C.R.S. (1995 Supp.). We approve the Board’s action.

I

On February 21, 1996, the Board refused to set a title, ballot title and submission clause, and summary for the Initiative, which proposed to repeal and reenact several provisions of article X, section 20 of the Colorado Constitution (Amendment 1). The Board concluded that the Initiative failed the single subject requirement of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, IB C.R.S. (1995 Supp.). On February 22,1996, proponents filed a motion for rehearing pursuant to section 1-40-107(1), IB C.R.S. (1995 Supp.). At the rehearing on March 6, 1996, proponents maintained that the Initiative conformed with the single subject requirement.

In an effort to meet the single subject requirement, proponents offered alternative ballot title language. Proponents also asked the Board to determine whether a modification of the Initiative would necessitate a second review and comment period. The Board denied the motion. Proponents filed a petition for review of the final action of the Board on March 11,1996. On April 15,1996, proponents filed a motion requesting an expedited decision by this court.

II

Article V, section 1 of the Colorado Constitution reserves the initiative power to the registered electors of the state. Section 1(5.5) of article V provides in relevant part:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.

Colo. Const, art V, § 1(5.5). In 1994, the General Assembly enacted section 1-40-106.5, IB C.R.S. (1995 Supp.), to implement the single subject requirement. The General Assembly intended “[t]o forbid the treatment of incongruous subjects in the same measure” and prevent voter fraud and surprise. § l-40-106.5(l)(e)(I), (II), IB C.R.S. (1995 Supp.). The General Assembly stated its intent that article V, section 1(5.5) “be liberally construed, so as to avert the practices against which [it is] ... aimed and, at the same time, to preserve and protect the right of initiative and referendum.” § 1-40-106.5(2).

The single subject requirement eliminates “the practice of combining several unrelated subjects in a single measure for the purpose of enlisting support from advocates of each subject and thus securing the enactment of measures which might not otherwise be approved by voters on the basis of the merits of those discrete measures.” In re Title, Ballot Title and Submission Clause, and Summary With Regard to a Proposed Petition for an Amendment to the Constitution of the State of Colorado Adding Section 2 to Article VII (Petitions), 907 P.2d 586, 589 (Colo.1995) (In re Petitions); see also In re Title, Ballot Title, Submission Clause, and Summary Adopted April 5, 1995, by the Title Board Pertaining to a Proposed Initiative “Public Rights in Waters II”, 898 P.2d 1076, 1078 (Colo.1995) (In re Public Rights in Waters II). To aid electors in the exercise of their right to initiate constitutional amendments, the Board must “fix a title, a ballot title and submission clause, and a summary for initiated petitions before they are signed by electors.” In re Petitions, 907 P.2d at 589; In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Proposed Initiative On School Pilot Program, 874 P.2d 1066, 1069 (Colo.1994) (In re Sch. Pilot Program). The title setting process ensures that initiative reviewers and voters are fairly advised of the proposed amendment’s import. In re Petitions, 907 P.2d at 589-90; In re Sch. Pilot Program, 874 P.2d at 1070.

The title of the proposed constitutional amendment “shall correctly and fairly express the true intent and meaning thereof ....” § l-40-106(3)(b), IB C.R.S. (1995 Supp.). However, the Board is not required to describe every aspect of an initiative in the title and ballot title and submission clause. In re Petitions, 907 P.2d at 590; In re Title, Ballot Title, and Submission Clause Approved February 2, 1994, Respecting the Proposed Initiated Constitutional Amendment Concerning Limited Gaming in the City of Antonito, 873 P.2d 733, 739 (Colo.1994) (In re Limited Gaming/Antonito). The Board must “consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a ‘yes’ or ‘no’ vote will be unclear.” § 1-40 — 106(3)(b), IB C.R.S. (1995 Supp.); see also In re Petitions, 907 P.2d at 590; In re Limited Gaming/Antonito, 873 P.2d at 739. The Board shall draft an impartial summary, one not “likely to create prejudice, either for or against the measure.” § 1 — 40—106(3)(a), IB C.R.S. (1995 Supp.).

Any person dissatisfied with a title, ballot title and submission clause, and summary may file a motion for rehearing with the secretary of state. § 1^10-107(1), IB C.R.S. (1995 Supp.). If the motion for rehearing is denied, the movant may seek review of the Board’s action by this court. § 1-40-107(2), IB C.R.S. (1995 Supp.); In re Petitions, 907 P.2d at 590; In re Sch. Pilot Program, 874 P.2d at 1070. On review of the Board’s actions, we are “limited to ensuring that ‘the title, ballot title and submission clause, and summary fairly reflect the proposed initiative so that petition signers and voters will not be misled into support for or against a proposition by reason of the words employed by the Board.’ ” In re Petitions, 907 P.2d at 590 (quoting In re Sch. Pilot Program, 874 P.2d at 1070). We will entertain all legitimate presumptions in favor of the Board’s actions. Id.

Ill

A

Proponents contend that the Initiative does not violate the single subject requirement of article V, section 1(5.5) of the Colorado Constitution. We disagree.

“A proposed measure impermis-sibly includes more than one subject if its text relates to more than one subject and if the measure has at least two distinct and separate purposes which are not dependant upon or connected with each other.” Id.; see also In re Public Rights in Waters II, 898 P.2d at 1078-79. Grouping the provisions of a proposed initiative under a broad concept that potentially misleads voters will not satisfy the single subject requirement. See In re Title, Ballot Title and Submission Clause, and Summary With Regard to a Proposed Petition for an Amendment to the Constitution to the State of Colorado Adding Subsection (10) to Section 20 of Article X (Amend Tabor 25), 900 P.2d 121, 125 (Colo.1995) (In re Amend Tabor 25) (concluding that umbrella of “revenue changes” did not sufficiently connect tax credit and ballot title procedural requirements); In re Public Rights in Waters II, 898 P.2d at 1080 (holding that water conservation district elections and “public trust” doctrine could not be grouped under the common characteristic of “water”).

All initiatives must comply with the single subject requirement. Colo. Const, art V, § 1(5.5). Neither the constitutional language nor section 1^40-106.5 creates any exemptions for initiatives that attempt to repeal constitutional provisions. Also, no special permission exists for initiatives that seek to address constitutional provisions adopted prior to the enactment of the single subject requirement. On the contrary, article V, section 1(5.5) specifically states that “[n]o measure shall be proposed by petition containing more than one subject....” Section 1^40-106.5 requires “every constitutional amendment or law proposed by initiative ... be limited to a single subject....” We also note that it is well established that “measure” includes initiatives that either enact or repeal.¹

Proponents correctly note that "the Board’s analysis should have been limited to whether the Initiative itself, not Amendment 1, constituted a single subject.” Petitioner’s Opening Brief at 8. Correspondingly, the Board contends that “[i]t is the fact that the measure to be amended or repealed contains multiple topics which is dispositive.” Respondent’s Answer Brief at 5. The underlying constitutional provision to be repealed must be examined in order to determine whether the repealing and reenacting initiative contains a single subject. If, for example, a constitutional provision contains multiple subjects and an initiative proposes to repeal the entire underlying provision, then the initiative contains multiple subjects. On the other hand, if an initiative proposes anything less than a total repeal, it may satisfy the single subject requirement.

We recently noted that Amendment 1 would not have met the single subject requirement of article V, section 1(5.5): “Amendment 1 itself was not subject to the single subject requirement and contains multiple subjects.” In re Amend Tabor 25, 900 P.2d at 126. Similarly, the Legislative Council to the General Assembly found that Amendment 1 “included provisions relating to taxes, elections, state mandated programs, and spending and revenue limitations.” Legislative Council of the Colorado General Assembly, An Analysis of 1994, Ballot Proposals, Research Publication No. 892, at 3 (1994). But see id. (stating also that Amendment 1 as a ballot proposal “in recent years ... might be considered to include more than one subject”) (emphasis added). Because the proposed Initiative does not seek a total repeal of Amendment 1, our dictum in In re Amend Tabor 25 does not dispose of the present case. Rather, we must examine the proposed Initiative to determine whether it satisfies the single -subject requirement.

B

The Initiative proposes repealing topics related to spending and revenue limits, elections, local responsibility for state mandated programs, and emergency reserves. Proponents contend that each repealed subsection addresses the single subject of “limiting government spending.” See, e.g., In re Petitions, 907 P.2d at 591 (“Although the initiative is comprehensive, all of its numerous provisions relate to the single purpose of reforming petition rights and procedures.”). However, the Initiative contains multiple subjects disconnected from any encompassing principle. See In re Amend Tabor 25, 900 P.2d at 125. The Initiative covers subjects ranging from the property valuation administrative process to elections to emergency taxes. “Limiting government spending” is too broad and general a concept to satisfy the single subject requirement, just as “water” was not a single subject in In re Public Rights in Waters II. See In re Public Rights in Waters II, 898 P.2d at 1080.

Proponents contend that requiring strict compliance with the single subject requirement to a repealing initiative precludes extensive modification of existing constitutional provisions. Constitutional provisions, especially those passed prior to the enactment of the single subject requirement, would be insulated from significant change. However, opponents of the single subject requirement, now codified at article V, section 1(5.5), similarly argued:

If several amendments are necessary to change various aspects of state government, for example a complex subject such as the personnel system, it may be important to include a number of topics within one proposal and to have a consensus of number of groups in order for the changes to be adopted. This proposal works against achieving system wide changes because complex reforms cannot realistically be accomplished on a piecemeal basis or in a series of elections.

Legislative Council of the General Assembly, An Analysis of 1994 Ballot Proposals, Research Publication No. 392, at 4 (1994). By passing the initiative, the voters rejected that argument. See also id. at 3 (“The type of proposals submitted by the legislature in recent years to remove obsolete provisions from the constitution might be considered to contain more than one subject. Under ... [the single subject requirement], these ballot issues might not have been allowed unless they were changed to reduce their scope.”).

IV

Alternatively, proponents contend that the Board abused its discretion by refusing to comment on whether revisions necessary to make the Initiative comply with the single subject requirement would be so substantial that an additional review and comment process would be required. Article V, section 1(5.5) of the Colorado Constitution provides:

In such circumstance [when a proposed measure contains more than a single subject], however, the measure may be revised and resubmitted for the fixing of a proper title without the necessity of review and comment on the revised measure in accordance with subsection (5) of this section, unless the revisions involve more than the elimination of provisions to achieve a single subject, or unless the official or officials responsible for the fixing of a title determine that the revisions are so substantial that such review and comment is in the public interest.

(Emphasis added.) Under article V, section 1(5.5), the Board possesses no duty to advise proponents concerning possible solutions to a single subject violation. If the Board rejects an initiative for violating the single subject requirement, then proponents may pursue two courses: 1) Proponents may commence a new review and comment process, or 2) Proponents may present a revised title to the Board. Comment by the Board is within its sound discretion. Requiring comment would unconstitutionally expand the Board’s authority and shift initiative drafting responsibility from proponents to the Board. In the present case, article V, section 1(5.5) justifies the Board’s discretionary silence regarding the changes necessary to satisfy the single subject requirement.

V

Because the Initiative violates the single subject requirement of article V, section 1(5.5) of the Colorado Constitution, we approve the Board’s refusal to set the title, ballot title and submission clause, and summary for the Initiative.

MULLARKEY, J., concurs in the result and KOURLIS and HOBBS, JJ., join in the concurrence.

APPENDIX A

Be it Enacted by the People of the State of Colorado: Article X, Section 20 of the Colorado Constitution is repealed and is reenacted as follows:

The Taxpayer’s Bill of Rights, (a) Term Definitions. Within this section:

(i) “District” means the state or any local government.

(ii) “Emergency” excludes economic conditions, revenue shortfalls, or district salary or fringe benefit increases.

(b) General. Starting November 6, 1996, unless paragraph (c) or (d) below applies, districts must have voter approval in advance for any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.

(c) Suspension of Vote in Certain Instances. When annual district revenue is less than annual payments on general obligation bonds, pensions, and final court judgments, paragraph (b) shall be suspended to provide for the deficiency.

(d) Emergency Taxes. This paragraph grants no new taxing power. Emergency property taxes are prohibited. Emergency taxes shall also meet all of the following conditions:

(i) A 2/3 majority of the members of each house of the general assembly or of a local district board declares the emergency and imposes the tax by separate’ recorded roll call votes.

(ii) Emergency tax revenue shall be refunded within 180 days after the emergency ends if not spent on the emergency.

(iii) A tax not approved on the next election date 60 or more days after the declaration shall end with that election month.

Title Rewrite: Proposed Initiative “1996-4”

An Amendment to the Colorado Constitution concerning Article X, Section 20 retaining the current requirement that districts must have voter approval in advance for any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net revenue gain to any district, and in connection therewith repealing all the other provisions of Article X, Section 20 of the Colorado Constitution including: limitations on the rate of increase in state and local government spending; the requirement that state and local governments establish an emergency reserve; restrictions on property, income, and other taxes; the voter approval requirement for multiple-fiscal year debt and financial obligations; election procedures for seeking voter approval; the restriction on state government requiring local governments to pay for state mandated programs.

1 . Section 1-40-106.5(3) provides that "the initiative title setting review board created in section 1^10-106 should apply judicial decisions construing the constitutional single-subject requirement for bills and should follow the same rules employed by the general assembly in considering titles for bills.” In In re Senate Resolution No. 4, 54 Colo. 262, 270, 130 P. 333, 336 (1913), we stated that “[a]n act repealing an act is a measure, and, as the general assembly is not deprived of the right to enact any measure, it clearly has the power to repeal any statute law, however adopted or passed.” See also Colo. Const, art V, § 1(4) ("This section shall not be construed to deprive the general assembly of the power to enact any measure.”)