Kemper v. Leahy

2014 CO 66, 328 P.3d 172, 2014 WL 2967811, 2014 Colo. LEXIS 540

• Court: Supreme Court of Colorado
• Decided: June 30, 2014
• Docket: Supreme Court Case No. 14SA126
• Status: Published

Opinions

JUSTICE BOATRIGHT

delivered the Opinion of the Court.

T1 In this original proceeding under seetion 1-10-107(2), C.R.S. (20183), we review the Ballot Title Setting Board's ("Title Board") findings that proposed initiative 2018-2014 # 89 (Initiative # 89"), its title, and its ballot title and submission clause (collectively, the "Titles") contain a single subject and that the Titles are clear.¹ We hold that Initiative # 89 and its Titles state a single subject and that the Titles satisfy the clear title requirement.² We therefore affirm the action of the Title Board.

I. Facts and Procedural History

T2 Respondents Caitlin Leahy and Gregory Diamond proposed Initiative #89 to create a public right to Colorado's environment by adding new section 32 to article II of the state constitution. Specifically, proposed subsection (1) states that Colorado's environment, meaning "clean air, pure water, and natural and scenic values," is the "common property of all Coloradans." Proposed subsection (2) makes state and local governments trustees of the environment and requires that they conserve the state's environment. Finally, proposed subsection (8) authorizes local governments to enact "laws, regulations, ordinances, and charter provisions that are more restrictive and protective of the environment" than the laws enacted by the state. This proposed subsection also states that if a local law conflicts with state law, the more restrictive and protective law governs.

3 The Proponents submitted a final version of Initiative #89 to the Secretary of State on March 21, 2014. The Title Board conducted a hearing for the initiative. The Title Board concluded that the initiative contained a single subject as required by article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, C.R.S. (2018). Accordingly, the Title Board set the Titles in accordance with section 1-40-106(1), C.R.S. (2013).

T4 On April 10, 2014, Petitioner Douglas Kemper filed a Motion for Rehearing, arguing that Initiative #89 violated the single subject requirements of section 1-40-106.5 and of article V, section 1(5.5) of the Colorado Constitution, and violated the clear title requirement of section 1-40-106. Petitioners Mizraim S. Cordero and Seott Prestidge also filed a motion for rehearing on the same day. Cordero and Prestidge made similar arguments to Kemper and also raised other issues with respect to the single subject and clear title requirements.

5 At the rehearing on April 16, 2014, the Title Board rejected Petitioners' objections and concluded that the measure contained a single subject. The Title Board did, however, modify the Titles. The amended title reads as follows:

An amendment to the Colorado constitution concerning a public right to Colorado's environment, and, in connection therewith, declaring that Colorado's environment is the common property of all Coloradans; specifying that the environment includes clean air, pure water, and natural and sce-nie values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local Iaws conflict the more restrictive law or regulation governs.³

According to the Title Board, the initiative's single subject is the "creation of the public's right to Colorado's environment."

16 Petitioners now raise several challenges to the Title Board's actions regarding Initiative #89. Petitioners assert that in setting the Titles, the Title Board violated article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, because Initiative #89 contains multiple subjects. In addition, Petitioners contend that the Titles are misleading.

II. Analysis

T7 We hold that Initiative #89 and its Titles contain a single subject-the creation of the public's right to Colorado's environment-and that the Titles are fair, clear, and accurate. To reach this result, we first explain the limited scope of our review. We then discuss Colorado's single subject rule and analyze the plain language of Initiative #89 to conclude that it contains a single subject. Finally, we describe Colorado's title requirements and determine that the Titles here comport with the requirements.

A. Standard of Review

T8 When reviewing a challenge to the Title Board's decision, "we employ all legitimate presumptions in favor of the propriety of the [Title] Board's actions." In re Title, Ballot Title, & Submission Clause for 2009-2010 No. 45, 234 P.3d 642, 645 (Colo. 2010). As such, we liberally construe the single subject requirement and "only overturn the Title Board's finding that an initiative contains a single subject in a clear case." In re Title, Ballot Title, & Submission Clause for 2011-2013 No. 3, 2012 CO 25, 16, 274 P.3d 562; In re Title, Ballot Title, Submission Clause, & Summary Adopted March 20, 1996, by the Title Bd. Pertaining to Proposed Initiative 1996-6, 917 P.2d 1277, 1280 (Colo. 19986). Similarly, when reviewing the Titles for clarity and accuracy, we only reverse the Title Board's decision if the Titles are "insufficient, unfair, or misleading." In re 2009-2010 No. 45, 234 P.3d at 648.

T9 In addition to being limited by the deferential standard that we afford the Title Board's decisions, our review is also limited to two narrow inquiries First, we analyze the plain language of the initiative to determine whether it comports with the requirement that the proposal only contain a single subject. In re 2011-2012 No. 3, 18. Second, we analyze the Titles to determine if they are "fair, clear, accurate, and complete." Id. In conducting each of these inquiries, we employ the general rules of statutory construction and give the words and phrases their plain and ordinary meaning. In re Title, Ballot Title, & Submission Clause for 2007-2008 No. 17, 172 P.3d 871, 874 (Colo.2007).

110 Crucially, when reviewing the Title Board's decision, we do not consider the merits of the proposed initiative. In re 2011-201% No. 8, T8. Nor do we review the initiative's "efficacy, construction, or future application," as those issues do not come up unless and until the voters approve the amendment. In re 2009-2010 No. 45, 234 P.3d at 645; In re Title, Ballot Title, Submission Clause, & Summary for 1999-2000 No. 2004, 992 P.2d 27, 30 (Colo.2000) initiative's efficacy, construction, or future application ... is a matter for judicial determination in a proper case should the voters approve the initiative.").

{11 With this standard in mind, we now review the single subject requirement and then consider whether Initiative # 89 violates it.

B. Initiative # 89 Does Not Violate the Single Subject Requirement

$12 In accord with article V, seetion 1(5.5) of the state constitution, section 1-40-106.5(1)(a) requires that "every constitutional amendment or law proposed by initiative ... be limited to a single subject." Accordingly, a proposed initiative that "relate[s] to more than one subject, and hals] at least two distinct and separate purposes not dependent upon or connected with each other," violates this rule. See People ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1908). In other words, a proposed initiative cannot seek to accomplish multiple, discrete, unconnected purposes. See In re Title, Ballot Title, Submission Clause, & Summary Adopted April 5, 1995, by Title Bd. Pertaining to a Proposed Initiative Pub. Rights in Waters II, 898 P.2d 1076, 1080 (Colo.1995) ("Waters II") (holding that the initiative violated the single subject requirement where there was "no unifying or common objective between the ... paragraphs"). By contrast, "if the initiative tends to effect or to carry out one general object or purpose, it is a single subject under the law." Id. at 1079. An initiative meets this requirement as long as the subject matter of the initiative is "necessarily or properly connected." In re 1996-6, 917 P.2d at 1280 (internal quotation marks omitted). Stated differently, "so long as an initiative encompasses related matters it does not violate the single subject requirement." In re Title, Ballot Title, Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to the Constitution of the State of Colo. Adding Section 2 to Article VII, 900 P.2d 104, 118 (Colo.1995) (Scott, J., concurring). While the initiative's subject or purpose may be broad, an initiative cannot satisfy the single subject requirement simply by claiming that each proposed change falls under the same general overarching theme. Compare In re Title, Ballot Title, Submission Clause, & Summary for 1999-2000 No. 256, 12 P.8d 246, 254 (Colo.2000) (holding that an initiative does not violate the single subject requirement simply because it covers a broad subject), with Waters II, 898 P.2d at 1080 (holding that "water" is too general to satisfy the single subject requirement).

113 The single subject requirement prevents two "dangers" of multi-subject ini-tlatives. See In re 2011-2012 No. 3, ¶11. First, it prevents the enactment of combined measures that would fail on their individual merits. Id. By combining unconnected subjects, proponents may be able to shore up support from groups with different, or even conflicting, interests. Id. The single subject requirement, however, prevents such a result by ensuring that each initiative must pass on its own merits. See id. Second, the single subject requirement also "protects against fraud and surprise occasioned by the inadvertent passage of a surreptitious provision 'coiled up in the folds' of a complex [initiative]." In re Title, Ballot Title, & Submission Clause for Proposed Initiative 2001-2002 No. 43, 46 P.3d 438, 440 (Colo.2002) (quoting In re Breene, 14 Colo. 401, 404, 24 P. 3, 4 (1890)).

%914 Turning to Initiative #89, we determine that it contains a single subject: "the creation of a public right to Colorado's environment." The subject is not an overly broad, overarching category, and each of Initiative # 89's subsections is properly connected to this subject.

" 15 Proposed subsection (1) declares that Colorado's environment is the common property of Coloradans; therefore, in unambiguous terms, this subsection states that the purpose of Initiative # 89 is the same as the subject, namely, the creation of a public right to Colorado's environment. Proposed subsections (2) and (8) then provide the mechanism for carrying out the objective of subsection (1). Thus, contrary to Petitioners' arguments, these two subsections are necessarily and properly connected to the subject of creating a public right to Colorado's environment, and therefore, their inclusion does not violate the single subject requirement. See In re Title, Ballot Title, & Submission Clause for 20090-2010 No. 91, 235 P.3d 1071, 1076 (Colo.2010) ("An initiative proposing a comprehensive framework contains a single subject if all of its provisions relate directly to its single subject.").

1 16 Examining subsection (2) in more detail, it establishes that the state and local governments shall serve as trustees of the public's right to Colorado's environment. We disagree with Petitioners' argument that the establishment of a public trust in the environment is not necessarily connected to the creation of the public's right in the state's environmental resources. This subsection is properly connected to the subject of the public's right to the environment because it de-seribes a part of the legal framework necessary to create and protect a public right in the environment. See In re 1999-2000 No. 200A, 992 P.2d at 30 ("Implementation details that are directly tied to the initiative's central focus do not constitute a separate subject." (internal quotation marks omitted))⁴

17 Similarly, proposed subsection (8) also provides a mechanism for achieving Initiative # 89's objective because it seeks to facilitate the government's ability to serve as trustee. Specifically, the subsection states that if local governments enact "laws, regulations, ordinances, and charter provisions that are more restrictive and protective of the environment" than the laws enacted by the state, the more restrictive and protective laws will control. The inclusion of such a provision in the proposal is properly connected to the local government's role as trustee. Further, we need not address Petitioner Kemper's argument that this section may "fundamentally changle]" the state's preemption law. Not only is the effect of an initiative outside of the seope of our review, In re 1999-2000 No. 256, 12 P.3d at 257, but the mere fact that an initiative may create a change does not mean that it violates the single subject requirement, see id. at 254 (holding that the proposal does not necessarily violate the single subject requirement just because it "makes policy choices that are not inevitably interconnected").

§ 18 We also find that Initiative # 89 does not present either of the two dangers that the single subject requirement attempts to prevent. First, Initiative # 89 does not seek to garner support from various factions by combining unrelated subjects in a single proposal. In the past, when we have found that an initiative is attempting to collect enough votes to pass by combining multiple subjects in a single proposal, there has been no clear connection between the various sections of the proposal. For example, we found that a proposal was trying to accomplish two separate, unrelated purposes when it sought to simultaneously establish water district election protocols and enact a public trust doe-trine in Colorado. Waters II, 898 P.2d at 1080. Here, however, Initiative #89 seeks to create a public right in the state's natural resources and provides two mechanisms for establishing and enforcing the right. Because the subsections are all related to the accomplishment of a single purpose, the proposal will pass or fail on its own merits and does not run the risk of garnering support from factions with different or conflicting goals.

{ 19 The second danger-that voters may be surprised by effects that are hidden in the body of an initiative that is misleading or overly comples-is also absent here. This danger exists where an initiative, although claiming to have a single subject, in reality has multiple purposes, and as a result, voters would not expect that passing the initiative would lead to one or more of the initiative's outcomes. See In re 2011-2012 No. 3, 1 19. For example, we held that an initiative that claimed to provide a tax break presented a danger of surprise because it hid the fact that the initiative would also result in mandatory state spending reductions. See In re Title, Ballot Title, Submission Clause, & Summary for 1997-1998 No. 30, 959 P.2d 822, 827 (Colo.1998). Here, however, there is no serious risk that the voters will be unaware of the primary effects of Initiative # 89 because each of the sections relates to the same subject, the plain language of Initiative #89 creates a public right and then lays out the procedures for implementing and enforcing that right, and the proposal is not particularly lengthy or complex. See In re Title, Ballot Title, & Submission Clause for 2011-2012 No. 45, 2012 CO 26, " 20, 274 P.8d 576 (holding that the initiative would not lead to voter surprise where the plain language of the proposal explained the initiative's effects); cf. In re Title, Ballot Title, Submission Clause, & Summary for 1997-1998 No. 84, 961 P.2d 456, 461 (Colo.1998) (holding that an initiative violated the single subject requirement when it included "hidden" subjects).

{ 20 We therefore reject Petitioners' arguments that Initiative #89 covers multiple subjects.

C. The Titles Are Not Misleading

1 21 Petitioners also assert that Initiative # 89's Titles are deficient for three reasons. Petitioners first claim that the Titles are misleading because they provide an inaceu-rate or vague description of the subject. Petitioners' second argument is that the Titles are deficient because they omit or do not adequately explain material provisions. Finally, Petitioners allege that the Titles inappropriately make use of a catch phrase. We disagree, and instead conclude that the Titles comport with the requirements set forth in section 1-40-106.

{22 Section 1-40-106(8)(b) provides the requirements for an initiative title. It states that the Title Board "shall 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/for' or 'no/against' vote will be unclear." § 1-40-106(8)(b). Furthermore, it requires that the title be brief, "express the true intent and meaning" of the initiative, and "unambiguously state the principle of the provision sought to be added, amended, or repealed." Id.

123 We have interpreted this statute to impose on the Title Board the job of "set[ting] fair, clear, and accurate titles that do not mislead the voters through a material omission or misrepresentation." In re 1999-2000 No. 256, 12 P.3d at 256. This requirement, however, does not mean that the Titles need to contain every detail of the proposal. Id. The Titles also are not required to explain every possible effect of enacting the initiative. In re Title, Ballot Title, & Submission Clause for 2007-2008 No. 61, 184 P.3d 747, 752 (Colo.2008). Furthermore, as noted above, the Title Board has broad discretion in drafting the Titles, and as a result, when we review the Titles, we grant great deference to the Title Board's decisions. In re 1999-2000 No. 256, 12 P.8d at 255. As such, we only reverse the Titles where the language is "clearly misleading." Id.

124 First, contrary to Petitioners argument, we find that the Titles are not misleading or overly vague. The Titles must clearly express the single subject of the initiative. In re 2000-2010 No. 45, 284 P.3d at 647. Here, the phrase, "concerning a public right to Colorado's environment" is a clear expression of the initiative's purpose because it alerts voters to the fact that the initiative is related to the public's right to the environment. Furthermore, the fact that the Titles do not discuss all of the potential impacts of the initiative is not improper, as the Title Board may not speculate on the potential effects of the initiative if enacted. In re Proposed Initiated Constitutional Amendment Concerning the Fair Treatment of Injured Workers Amendment, 873 P.2d 718, 720-21 (Colo.1994).

125 Relatedly, we also disagree with Petitioners' claim that the Titles omit key terms. The Titles need not contain every feature of the proposed measure. In re Title, Ballot Title, Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to the Constitution of the State of Colo. Adding Section 2 to Article VIL, 907 P.2d 586, 592 (Colo.1995). Here, the Titles explain that Initiative # 89 addresses the public's right to the environment, the central purpose of the proposal. The Titles also alert the voter to subsection (2)'s designation of state and local governments as trustees of the public's right, and to subsection (8)s statement that where state and local laws conflict, the more restrictive law will govern. The fact that the Titles neither include every detail of the initiative nor use the phrase "fundamental right" to describe the public's right to the environment is not problematic, as the Titles alert the voter to the material elements and purpose of the initiative. See id. (holding that it was not necessary to describe in the Titles each change proposed in the initiative).

126 Finally, we reject Petitioners' argument that the Titles make improper use of a catch phrase by defining the environment as "includ[ing] clean air, pure water, and natural and scenic values." A catch phrase consists of "words that work in favor of a proposal without contributing to voter understanding." In re 2009-2010 No. 45, 234 P.3d at 649. The purpose of forbidding the use of catch phrases in an initiative is to "guard against inflammatory ... words or phrases that promote prejudice in place of [voter] understanding [of] what is really being proposed"; accordingly, words that "merely describe the proposal are not impermissible catch phrases." Id. We evaluate whether the Titles include an impermissible catch phrase by considering the contemporary political debate. In re Title, Ballot Title, Submission Clause, & Summary for 1999-2000 No. 258(A), 4 P.3d 1094, 1100 (Colo.2000). Here, although the environment and conservation are common topics of debate, the words used in the initiative do not constitute a catch phrase because they form a descriptive phrase that contributes to voter understanding of the purpose of the initiative. Cf. id. (holding that the phrase "as rapidly and effectively as possible" was an impermissible catch phrase because it "mask[s]) the policy question" regarding whether the initiative offers "the most rapid and effective way" to accomplish its goal). Moreover, the phrase is not simply an "appeal to emotion" or an attempt to "distract{ ] voters from consideration of the proposed initiative's merits," the evils that this prohibition seeks to prevent. In re 2009-2010 No. 45, 284 P.3d at 649.

127 Hence, we conclude that the Titles comport with the requirements set forth in section 1-40-106(8)(b).

III. Conclusion

128 For the foregoing reasons, we hold that Initiative #89 and its Titles contain a single subject and that the Titles satisfy the clear title requirement. Therefore, we affirm the decision of the Title Board.

JUSTICE HOBBS dissents, and CHIEF JUSTICE RICE joins in the dissent.

Attachment

APPENDIX-Initiative # 89 and Titles

Be it Enacted by the People of the State of Colorado:

SECTION 1. In the constitution of the state of Colorado, amend article II to add the following:

Section $32. Environmental Rights (1) THE PEOPLE OF THE STATE OF COLORADO FIND AND DECLARE THAT COLORADO'S ENVIRONMENT IS THE COMMON PROPERTY OF ALL COLORADANS; CONSERVATION OF COLORA-DOS ENVIRONMENT, INCLUDING ITS CLEAN AIR, PURE WATER, AND NATURAL AND SCENIC VALUES IS FUNDAMENTAL; AND COLORADO'S ENVIRONMENT SHOULD BE PROTECTED AND PRESERVED FOR ALL COLORADANS, INCLUDING GENERATIONS YET TO COME.

(2) THE PEOPLE OF THE STATE OF COLORADO, INCLUDING FUTURE GENERATIONS, HAVE A RIGHT TO COLORADO'S ENVIRONMENT, INCLUDING ITS CLEAN AIR, PURE WATER, AND NATURAL AND SCENIC VALUES. AS TRUSTEES OF THIS RESOURCE, THE STATE AND LOCAL GOVERNMENTS SHALL COLORADO'S ENVIRONMENT, INCLUDING ITS CLEAN AIR, PURE WATER, AND NATURAL AND SCENIC VALUES FOR THE BENEFIT OF ALL THE PEOPLE. THIS SECTION APPLIES TO THE STATE OF COLORADO AND TO EVERY COLORADO CITY, TOWN, COUNTY, AND CITY AND COUNTY, NOTWITHSTANDING ANY PROVTISION OF ARTICLE XX, OR SECTION 16 OF ARTICLE XIV, OF THE COLORADO CONSTITUTION.

(8) ALL PROVISIONS OF THIS SECTION OF ARTICLE II OF THE COLORADO CONSTITUTION ARE SELE-EXECUTING AND SEVERABLE. TO FACILITATE THE CONSERVATION OF COLORADO'S ENVIRONMENT, LOCAL GOVERNMENTS HAVE THE POWER TO ENACT LAWS, REGULATIONS, ORDINANCES, AND CHARTER PROVISIONS THAT ARE MORE RESTRICTIVE AND PROTECTIVE OF THE ENVIRONMENT THAN LAWS OR REGULATIONS ENACTED OR ADOPTED BY THE STATE GOVERNMENT. IF ANY LOCAL LAW OR REGULATION ENACTED OR ADOPTED PURSUANT TO THIS ARTI CLE CONFLICTS WITH A STATE LAW OR REGULATION, THE MORE RESTRICTIVE AND PROTECTIVE LAW OR REGULATION GOVERN.

Ballot Title Setting Board

Proposed Initiative 2013-2014 # 89

The title as designated and fixed by the [Title] Board is as follows:

An amendment to the Colorado constitution concerning a public right to Colorado's environment, and, in connection therewith, declaring that Colorado's environment is the common property of all Coloradans; specifying that the environment includes clean air, pure water, and natural and see-nic values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs.

The ballot title and submission clause as designated and fixed by the [Title] Board is as follows: .

Shall there be an amendment to the Colorado constitution concerning a public right to Colorado's environment, and, in connection therewith, declaring that Colorado's environment is the common property of all Coloradans; specifying that the environment includes clean air, pure water, and natural and scenic values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs?

1 . Petitioner Douglas Kemper presented the following two issues for our review:

1. Whether the Ballot Title Setting Board (the "Board") incorrectly determined that Initiative 2013-2014 #89 ("Initiative #89") is limited to a single subject, in light of the multiple objectives of this measure, to:

a. Create a fundamental right to conservation of Colorado's environment;

b. Adopt a form of public trust doctrine by declaring common property in Colorado's environment; and

c. Establish local control to enforce environmental regulations more restrictive than state law.

2. Whether the Board's title, ballot title, and submission clause (collectively, the "Titles") for Initiative #89 are unfair in that the phrase "concerning a public right to Colorado's environment" does not clearly express either a single subject or the full scope of Initiative # 89, and in that they entirely omit a materially important feature of the fundamental right created by the Initiative.

Petitioners Mizraim S. Cordero and Scott Pres-tidge presented the following two issues for our review:

1. Whether the Ballot Title Setting Board (the "Board"), in violation of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, C.R.S. (2013), improperly proceeded to set title on Initiative 2013-2014 #89 ('Initiative #89"), despite Initiative # 89 containing multiple, distinct, and unrelated purposes, including:

a. Creation of a "common property" right to the environment, which includes the "clean air, pure water, and natural and scenic values";

b. Establishment of a public trust over the above enumerated resources and appointment of the state and local governments as trustees of such resources;

c. Conferment on local governments the power to enact laws, regulations, ordinances, and charter provisions that are more restrictive and protective of the environment laws or regulations enacted by the state; and

d. Formation of a new preemption doctrine whereby more restrictive local laws shall preempt statutes and regulations enacted by the state government.

2. Whether the title, ballot title, and submission clause (collectively, the "Title") set by the Board on Initiative # 89 is confusing, misleading, and fails to reflect the true intent of the Proponents in violation of section 1-40-106, C.R.S. (2013), where the Title fails to adequately inform voters of the objective of the measure and impermissibly contains a catch phrase.

2 . See the Appendix to this decision for the text of Initiative # 89 and the Titles that the Title Board adopted for the ballot.

3 . The ballot title and submission clause contains the same language as the title except that it is phrased in the form of a yes-or-no question.

4 . We do not need to address Petitioners' arguments that the creation of a public trust would have negative effects on Colorado's prior appropriation water rights regime because such an inquiry is beyond the scope of the single subject inquiry presently before us. See In re Title, Ballot Title, & Submission Clause for 2007-2008 No. 62, 184 P.3d 52, 58 (Colo.2008) ("[When determining whether a proposed initiative comports with the single-subject/clear title requirement, we may not address the merits of a proposed initiative, nor may we interpret its language or predict its application if adopted by the electorate." (alteration and internal quotation marks omitted)).