Kemper v. Hamilton

172 P.3d 871, 2007 Colo. LEXIS 1083, 2007 WL 4098198
CourtSupreme Court of Colorado
DecidedNovember 19, 2007
DocketNo. 07SA201
StatusPublished
Cited by27 cases

This text of 172 P.3d 871 (Kemper v. Hamilton) 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
Kemper v. Hamilton, 172 P.3d 871, 2007 Colo. LEXIS 1083, 2007 WL 4098198 (Colo. 2007).

Opinions

Justice HOBBS

delivered the Opinion of the Court.

In this appeal pursuant to section 1-40-107(2), C.R.S. (2007), two registered electors, Douglas Kemper and Stuart Sanderson (collectively, "Kemper"), challenge the action of the Title Board in setting the title, ballot title, and submission clause ("titles") for proposed Initiative 2007-2008 #17 (unofficially captioned by legislative staff, for tracking purposes, "New State Department and Elected Board for Public Resource Conservation").1

The initiative's proponents contend that the measure proposes only the creation of a new Colorado Department of Environmental Conservation with a mission of "conservation stewardship." Kemper asserts that the measure goes beyond establishing a new environmental department and supplying it with a mission statement for conservation stewardship; instead, the initiative, in sections 2 and 7, sets forth a mandatory public trust standard for agency decision-making whereby conflicts between "economic interest" and "public ownership and public conservation values in lands, waters, public resources, and wildlife," must always be resolved in favor of "public ownerships and public values."

The initiative's proponents have submitted a written statement characterizing their own testimony before the Title Board as "definitively and succinetly statling] that there has been no attempt in the article XXX proposal to establish a public trust doctrine.2 However, Kemper contends that the language of the measure does, in fact, propose a public trust standard conjoined with the creation of a new environmental department, thereby creating a multiple subject violation contrary to our decision in In re Title, Ballot Title & Submission Clause, & Summary Pertaining to a Proposed Imitiative "Public Rights in Waters II" ("Waters II"), 898 P.2d 1076, 1078-79 (Colo.1995).

Thus, a central point of contention in this appeal is whether the initiative contains a proposal to establish a public trust standard for agency decision-making. We agree with Kemper that the initiative contains the additional subject of a public trust standard, not simply the subject of a new environmental department with a conservation stewardship mission. We conclude that our decision in Waters II controls our decision in this case [873]*873and requires that the public trust standard proposed in this initiative be made in a single subject initiative. Accordingly, we reverse the action of the Title Board and remand this case to it with directions to strike the titles and return the initiative to its proponents.3

I.

Initiative # 17s Proposal

On June 6, 2007, the Title Board conducted a public meeting on Initiative 2007-2008 # 17, pursuant to section 1-40-106(1), C.R.S. (2007). It designated and fixed a title, ballot title, and submission clause for the initiative. Kemper filed a Motion for Rehearing. At a subsequent public meeting, the Title Board denied Kemper's motion, whereupon Kemper initiated this original proceeding for review of the Title Board's action.

The initiative proposes ten single-spaced pages of new text, adding section XXX to the Colorado Constitution. It contains eleven provisions applicable to numerous agencies that are currently assigned to the Department of Natural Resources, the Department of Health and Environment, and the Governor's Office. The initiative would transfer to the new Department of Environmental Conservation the following existing programs, divisions, boards, and commissions: Colorado Natural Areas Program; Colorado Water Conservation Board; Colorado Division of Forestry; Colorado Division of State Parks; Colorado Water Quality Control Division; Colorado Division of Wildlife; Colorado Land Use Commission; Colorado Captive Wildlife and Alternative Livestock Board; the State Board of Land Commissioners; Great Outdoors Colorado Program; State Board of the Great Outdoors Colorado Trust Fund; Hazardous Waste Commission; Colorado Land Use Commission; Colorado Natural Areas Council; Colorado Board of Parks and Outdoor Recreation; Pollution Prevention Advisory Board; Colorado Water Conservation Board; Colorado Water Quality Control Commission; Wildlands and Urban Interface Wildlife Working Group; Colorado Wildlife Commission; and Colorado Joint Review Process. The initiative also includes language that would insert a public trust standard into agency decision-making.

II.

We agree with Kemper that the initiative contains the additional subject of a public trust standard, not simply the subject of a new environmental department with a conservation stewardship mission. We conclude that our decision in Waters IZ controls our decision in this case and requires that the public trust standard contained in the language of this initiative be proposed in a single subject initiative.

A.

Standard of Review

In 1994, the Colorado voters adopted the single subject matter requirement of article V, section 1(5.5). This constitutional requirement and the Title Board's enabling statute, § 1-40-106.5(1)(a), CRS. (2007), provide that a proposed initiative must be "clearly expressed." The Constitution and the statute prohibit initiatives from containing two or more separate and discrete subjects that are not dependent upon or necessarily connected with each other. Waters II, 898 P.2d 1076, 1078-79; see also In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative 2001-02 # 43, 46 P.3d 438, 441-42 (Colo.2002).

Further, one of the purposes of the single subject requirement is to apprise voters of the subject of each measure, so that surreptitious measures that could result in voter surprise or fraud are not placed on the ballot. Id. at 441; see also § 1-40-106.5(1)(e)(I1), C.R.S. (2007). At first glance, the concept of a single subject appears straightforward; however, an initiative with [874]*874multiple subjects may be improperly offered as a single subject by stating the subject in broad terms. In re Title, Ballot Title & Submission Clause, & Summary 2005-2006 # 55, 138 P.8d 278, 274 (Colo.2006).

Implementing provisions that are directly tied to an initiative's central focus are not separate subjects. In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 # 258(A), 4 P.8d 1094, 1097 (Colo. 2000). While we do not determine an initiative's efficacy, construction, or future application, we must examine the proposal sufficiently to enable review of the Title Board's action. Id. at 1097-98. We apply the general rules of statutory construction and accord the language of the measure its plain meaning. In re Title, Ballot Title & Submission Clause, & Summary for 2005-2006 # 75, 188 P.3d 267, 271 (Colo.2006).

B.

This Initiative Proposes a Public Trust Standard, Not Simply a New Environmental Department with a Conservation Stewardship Mission

At first glance, this initiative may seem to propose only the creation of an environmental conservation department with a conservation stewardship mission. However, a plain reading of the initiative's language also reveals the inclusion of a public trust standard for ageney decision-making.

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Bluebook (online)
172 P.3d 871, 2007 Colo. LEXIS 1083, 2007 WL 4098198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemper-v-hamilton-colo-2007.