Title, Ballot Title, & Submission Clause for 2011-2012 3 v. Hamilton

2012 CO 25, 274 P.3d 562, 2012 WL 1259027, 2012 Colo. LEXIS 284

• Court: Supreme Court of Colorado
• Decided: April 16, 2012
• Docket: 12SA8
• Status: Published

Opinions

Justice RICE

delivered the Opinion of the Court.

T1 In this original proceeding under seetion 1-40-107(2), C.R.S. (2011), we review the Ballot Title Setting Board's ("Title Board") findings that proposed Initiative 2011-2012 No. 3 ("Initiative 3"), its title, and its ballot title and submission clause (the "Titles") contain a single subject.¹ We hold that the Title Board was correct. Initiative 3 and its Titles state a single subject-"the public's rights in the waters of natural streams"-and therefore comply with article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, C.R.S. (2011). We therefore affirm the action of the Title Board.

I. Facts and Procedural History

T2 Respondents Richard G. Hamilton and Phillip Doe proposed Initiative 3 to enact the "Colorado public trust doctrine" by adding new subsections (2) through (7) to article XVI, section 5 of the state constitution. Specifically, proposed subsection (2) would expressly adopt a version of the public trust doctrine to "protect the public's interests in the water of natural streams and to instruct the State of Colorado to defend the public's water ownership rights of use and public enjoyment." Proposed subsections (8) and (4) would subordinate contract, property, and appropriative water rights to the "public estate in water." Proposed subsection (5) would allow public access "along, and on, the wetted natural perimeter" of any "natural stream in Colorado," and would extend this public access right to the "naturally wetted high water mark of the stream." Proposed subsection (6) would provide enforcement mechanisms for the new public trust doctrine, and proposed subsection (7) would authorize the legislature to enact laws supplemental and complementary to the new constitutional provisions.

T3 The Title Board designated the Titles for Initiative 3 in accordance with section 1-40-106(1), C.R.S. (2011), during a public meeting on December 21, 2011. The title reads as follows:

An amendment to the Colorado constitution concerning the public's rights in the water of natural streams, and, in connection therewith, making public ownership of such water legally superior to water rights, contracts, and property law; granting unrestricted public access along and use of natural streams and their stream banks up to the naturally wetted high water mark; prohibiting the state from transferring its water rights; allowing the state government to manage others' water rights, while requiring state government to act as steward of and to protect, enforce, and implement public ownership of water; and allowing any Colorado citizen to sue to enforce the amendment.

(Emphasis added).

4 The ballot title and submission clause contains the same language as the title, phrased in the form of a question. Petitioner Douglas Kemper filed a Motion for Rehearing on December 28, 2011, arguing that Initiative 3 and the Titles violated the single subject requirements of section 1-40-106.5 and of article V, section 1(5.5) of the Colorado Constitution. The Title Board heard testimony on the Motion for Rehearing during its meeting on January 4, 2012. It discussed the measure, and unanimously denied Kem-per's objections, finding that both Initiative 3 and the Titles contained a single subject: "the public's rights in the waters of natural streams." Kemper seeks this Court's review of the Title Board's single subject findings pursuant to section 1-40-107(2).

II. Analysis

I 5 We hold that the Title Board correctly found that Initiative 3 and its Titles contain a single subject because they necessarily and properly relate to "the public's rights in the waters of natural streams." We first de-seribe our limited role in reviewing the Title Board's decision. We then outline Colorado's single subject rule, noting the dangers of omnibus initiatives. Finally, we analyze the plain language of Initiative 3 to conclude that it complies with the single subject rule. We also hold that the Titles fairly and clearly reflect the proposed measure and its single subject.

A. Standard of Review

16 In 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, 284 P.3d 642; 645 (Colo.2010). We will only overturn the Title Board's finding that an initiative contains a single subject in a clear case. In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Casino Gaming Initiative Adopted on April 21, 1982, 649 P.2d 308, 306 (Colo. 1982).

17 In addition, the Title Board has considerable discretion in setting the titles for a ballot initiative. Im re Title, Ballot Title, Submission Clause, and Summary Adopted March 20, 1996 by the Title Bd. Pertaining to Proposed Imitiative "1996-6," 917 P.2d 1277, 1280 (Colo.1996). We will only reverse the Title Board's designation if the titles are "insufficient, unfair, or misleading." In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 648.

18 Our limited role in this process prohibits us from addressing the merits of a proposed initiative, and from suggesting how an initiative might be applied if enacted. In re Title, Ballot Title and Submission Clause for Proposed Initiative 2001-02 No. 48, 46 P.3d 438, 448 (Colo.2002). We will sufficient ly examine Initiative 3, however, to determine whether or not it violates the constitutional prohibition against initiative proposals containing multiple subjects. Id.; see also Colo. Const. art. V, § 1(5.5). We will also examine the Titles as a whole to determine if they are fair, clear, accurate, and complete. In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 649; In re Title, Ballot Title, and Submission Clause for 2007-2008 No. 62, 184 P.3d 52, 58 (Colo.2008). During these examinations, we employ the general rules of statutory construction and accord the language of the proposed initiative and its titles their plain meaning. In re Title, Ballot Title and Submission Clause, for 2007-2008, No. 17, 172 P.3d 871, 874 (Colo.2007).

B. The Single Subject Requirement

19 Colorado law requires "that every constitutional amendment or law proposed by initiative ... be limited to a single subject, which shall be clearly expressed in its title." §$ 1-40-106.5(1)(a); see also Colo. Const. art. V, § 1(5.5) ("No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title. ..."). A proposed initiative violates this rule if its text "relate[s]l to more than one subject, and [has] at least two distinct and separate purposes not dependent upon or connected with each other." People ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903); see In re Proposed Initiative 2001-0% No. 43, 46 P.3d at 441 (deseribing use of Sours test to analyze ballot initiatives). As such, the subject matter of an initiative must be "necessarily and properly connected" rather than "disconnected or incongruous." In re Title, Ballot Title Submission Clause, and Summary Adopted April 5, 1995, by Title Bd. Pertaining to a Proposed Initiative "Pub. Rights in Waters II", 898 P.2d 1076, 1079 (Colo.1995).

{10 A proponent's attempt to characterize a proposed initiative under "some overarching theme" will not save the measure if it contains separate and unconnected purposes. In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 442. We have held that "water" and "revenue changes" are two examples of "overarching themes" that did not qualify as single subjects when the proposed initiatives associated with the themes contained disconnected or incongruous provisions. See Pub. Rights in Waters II, 898 P.2d at 1080 (holding that "water" is too general and too broad to constitute a single subject); see also 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 Colo. Adding Subsection (10) to Section 20 of Article X (Amend TABOR 25), 900 P.2d 121, 125-26 (Colo.1995) (concluding that umbrella subject of "revenue changes" did not alter the fact that the measure contained two unrelated subjects-a tax credit and changes to the procedural requirements for ballot titles).

1 11 We have previously explained that the single subject rule prevents two "dangers" associated with omnibus initiatives. See In re Proposed Imitiative 2001-02 No. 48, 46 P.3d at 442-48. First, combining subjects with no necessary or proper connection for the purpose of garnering support for the initiative from various factions-that may have different or even conflicting interests-could lead to the enactment of measures that would fail on their own merits. Id. at 442; see § 1-40-106.5(1)(e)(I). Second, the single subject rule helps avoid "voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision 'coiled up in the folds' of a complex initiative." In re Proposed Initiative 2001-02 No. 48, 46 P.3d at 442; see § 1-40-106.5(1)(e)(ID).

112 Recognizing these dangers, we have applied the single subject rule to public trust doctrine initiatives-like Initiative 3-on several previous occasions. In 1995 and 2007, we held that the proposed public trust initiatives contained multiple subjects. See Pub. Rights in Waters II, 898 P.2d at 1077; In re Proposed Initiative 2007-2008, No. 17, 172 P.3d at 873. In Public Rights in Waters II, we applied the Sours test and determined that the proposed initiative violated the single subject rule because no necessary connection existed between the measure's two water district election paragraphs and the two public trust water rights paragraphs. 898 P.2d at 1080. Citing Public Rights in Waters II, we similarly concluded in 2007 that a different proposed public trust doe-trine initiative violated the single subject rule because the initiative improperly paired "the creation of a new environmental department with the separate and discrete subject of the creation of a public trust standard." In re Proposed Imitiative 2007-2008, No. 17, 172 P.3d at 875. In 1996, however, we upheld the Title Board's finding that a proposed public trust doctrine initiative satisfied the single subject requirement because the subject-"the public's interest in state waters"was "sufficiently narrow and sufficiently connected" with all of the proposed initiative's provisions. In re Proposed Initiative 1996-6, 917 P.2d at 1278-81.

1 13 With this legal framework in mind, we turn to Initiative 3 and its Titles.

C. Initiative 3 and its Titles Contain a Single Subject

{14 Initiative 3 and its Titles contain a single subject: "the public's rights in the waters of natural streams." Initiative I's proposed subsections are necessarily and properly connected to this subject, see Pub. Rights in Waters II, 898 P.2d at 1079, and the Titles fairly and clearly express the single subject as well. See In re Proposed Initiative 2007-2008 No. 62, 184 P.3d at 58. We first analyze Initiative 3, and then address the Titles.

1. Initiative 3 Complies with the Single Subject Rule

115 Initiative 3 contains a single subject. Proposed subsection (2) expressly adopts the "Colorado public trust doctrine." The plain language of Initiative 3 indicates that this proposed doctrine is necessarily and properly connected to the subject of "the public's rights in waters of natural streams" because the doctrine's delineated purpose is to "protect the public's interests in the water of natural streams and to instruct the state of Colorado to defend the public's water ownership rights of use and public enjoyment." (Emphasis added).

T16 In addition, proposed subsections 8) through (5) are necessarily and properly connected to the subject of the "public's rights in waters of natural streams" because they de-seribe the proposed doctrine's legal relationship to existing contract, property, and ap-propriative rights. Subsection (8) states that the new public right to water of natural streams would be "superior to rules and terms of contracts or property law." Then, subsections (4) and (5) necessarily and properly describe how the "superior" public right to the water of natural streams will interact with usufruct water rights and with streambed and stream bank access. Subsections (6) and (7) necessarily delineate the procedures for enacting and enforcing the new public trust regime to "protect the pub-He's right and interest in water." Far from being "disconnected and incongruous," the proposed subsections of Initiative 3 have the single distinct purpose of describing a new legal regime-the "Colorado public trust doctrine"-that would govern "the public's rights in waters of natural streams." See Pub. Rights in Waters II, 898 P.2d at 1079.

117 Unlike "water" in Public Rights in Waters II, 898 P.2d at 1080, the "publics rights in waters of natural streams" is not "some overarching theme" that Initiative 38's proponents employed in an attempt to meld separate and unconnected purposes into a single subject. Rather, the "public's rights in waters of natural streams" describes the purpose of the "Colorado public trust doe-trine" and relates to the other necessarily and properly proposed subsections of Initiative 3 describing the details of that doctrine. Just as "the public's interest in state waters" was "sufficiently narrow and sufficiently connected" with the proposed initiative's provisions in In re Proposed Initiative 1996-6, 917 P.2d at 1278-81, "the public's rights in waters of natural streams" is sufficiently narrow and sufficiently connected to the proposed constitutional amendment contained in Initiative 8.

1 18 Initiative 3 additionally does not present either of the "dangers" attending omnibus measures. First, the proponents did not combine an array of disconnected subjects into the measure for the purpose of garnering support from various factions. See In re Proposed Initiative 2001-02 No. 48, 46 P.3d at 442. Initiative 3 does not, for example, prescribe how to establish water district election procedures while also developing a "strong public trust doctrine," as did the multi-subject initiative in Public Rights in Waters II. 898 P.2d at 1080. Nor does it create a new environmental department while also proposing to enact a separate and discrete public trust doctrine. See In re Proposed Initiative 2007-2008, No. 17, 172 P.3d at 875. Rather, Initiative 83's proposed subsections all relate to the "Colorado public trust doctrine" and that doctrine's impact on the "public's rights in waters of natural streams."

T19 Initiative 3 also fails to trigger the second "danger" of omnibus measures because voters will not be surprised by, or fraudulently led to vote for, any "surreptitious provision{s] 'coiled up in the folds' of a complex initiative." In re Proposed Imitia-tive 2001-02 No. 43, 46 P.3d at 442. In In re Proposed Initiative for 1997-98 No. 84, 961 P.2d 456, 460 (Colo.1998), we held that a tax cut initiative contained multiple subjects because it proposed to not only eut taxes, but also to replace local revenue affected by these tax cuts "within all tax and spending limits." The phrase "within all tax and spending limits" required the state to replace local revenues by diverting funding from existing state programs. In re Proposed Initiative for 1997-98 No. 84, 961 P.2d at 460. We reasoned that voters would be surprised to learn that by voting for local tax cuts, they also had required the reduction, and possible elimination, of those state programs. Id. at 460-61.

20 No such surprise would oceur should voters approve Initiative 3 because the plain language of the measure unambiguously proposes a new "Colorado public trust doctrine," describes the impact of that doctrine on other legal rights, and lays out procedures for implementing and enforcing the constitutional amendment.² Furthermore, Initiative 3 is not overly lengthy or complex, nor is the plain language confusing or otherwise misleading, as it was in the tax cut initiative case. See id. at 460; Pub. Rights in Waters II, 898 P.2d at 1079. As such, Initiative 3 complies with the single subject rule.

2. The Titles Clearly Express the Single Subject of Initiative 3

$21 The Titles clearly express Initiative 83's single subject. They first explicitly state that Initiative 3 concerns "the public's rights in the water of natural streams," and then accurately and unambiguously summarize the details of the measure. Kemper argues that the Titles are unfair because the phrase "concerning the public's rights in the water of natural streams" does not clearly express a single subject. We held above that the phrase in question, as used in Initiative 3, contains a single subject in accordance with Colorado law. Therefore, we reject Kem-per's argument because "the public's rights in the water of natural streams" is the single subject of Initiative 3 and is clearly and fairly expressed in the Titles. See Colo. Const. art. V, § 1(5.5); see also § 1-40-106(8)(b), C.R.S. (2011). Kemper has not argued any other grounds upon which we might conclude that the Titles are improper. Therefore, we affirm the designation of the Titles because they contain a single subject.

III. Conclusion

1 22 We hold that Initiative 3 and its Titles contain a single subject in compliance with Colorado law. We therefore affirm the decision of the Title Board.

Justice HOBBS dissents.

APPENDIX-Initiative 3 and Titles

INITIATIVE TO ADOPT THE COLORADO PUBLIC TRUST DOCTRINE

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

Section 5 of article XVI of the constitution of the state of Colorado is amended to read:

Section 5. Water of streams public property-public trust doctrine. (1) The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.

(2) THIS COLORADO PUBLIC TRUST DOCTRINE IS HEREBY ADOPTED, AND IMPLEMENTED, BY THE PEOPLE OF THE STATE OF COLORADO TO PROTECT THE PUBLIC'S INTERESTS IN THE WATER OF NATURAL STREAMS AND TO INSTRUCT THE STATE oF Cornorapo to DEFEND THE PuBLIC'S WATER OWNERSHIP RIGHTS OF USE AND PUBLIC ENJOYMENT.

(3) THis COLORADO PUBLIC TRUST DOCTRINE PROVIDES THAT THE PUBLIC'S ESTATE IN WATER IN COLORADO HAS A LEGAL AUTHORITY SUPERIOR TO RULES AND TERMS OF CONTRACTS OR PROPER TY LAW,

(4) THE PUBLIC CONFERS THE RIGHT TO THE USE OF ITS WATER, AND THE DIVERSION OF THE WATER UNDER SECTION 6 OF THIS ARTICLE, TO AN APPROPRIATOR FOR A BENEFICIAL USE AS 4 GRANT FROM THE PEOPLE OF THE STATE OF COLORADO TO THE APPROPRIATOR FOR THE COMMON GOOD.

(a) THE usB or THE PUBLIC'S WATER BY THE MANNER OF APPROPRIATION, AS GRANTED IN THIS ARTICLE, IS A USUFRUCT PROPERTY RIGHT ASSOCI ATED WITH THE USE oF Warer UsurRrUCT RIGHTS FOR THE USE OF WATER SURVIVE UNDER THE LEGAL CONDITION THAT THE APPROPRIATOR IS AWARE THAT A USUFRUCT RIGHT IS SERVIENT TO THE PUBLIC'S DOMINANT WATER ESTATE AND IS SUBJECT TO TERMS AND CONDITIONS OF THIS COLORADO PUBLIC TRUST DOCTRINE.

(b) USUFRUCT WATER RIGHTS SHALL NOT CONFER OWNERSHIP TO WATER OTHER THAN USC-FRUCT RIGHTS TO THE APPROPRIATOR.

(c) UsSUFRUCT WATER RIGHTS, CONFERRED BY THE PUBLIC TO AN APPROPRIATOR FOR USE, MAY BE MANAGED BY THE STATE GOVERNMENT, ACTING AS A STEWARD OF THE PUBLIC'S WATER, SO AS TO PROTECT THE NATURAL ENVIRONMENT AND TO PROTECT THE PUBLICS ENJOYMENT AND USE OF WATER.

(d) A USUFRUCT WATER USER IS IMPRESSED UNDER THE CONDITION THAT NO USE OFP WATER HAS DOMINANCE OR PRIORITY OVER NATURAL STREAMS OR PUBLIC HEALTH OR WELL-BEING.

(e) WatEr Rickts, HELD BY THE STATE OF CoLnoRr&aDo FOR GOVERNMENT OPERATIONS, SHALL BE HELD IN TRUST FOR THE PUBLIC BY THE STATE OF COLORADO WITH THE STATE ACTING AS THE STEWARD OF THE PUBLICS WATER ESTATE. WATER RIGHTS HELD BY THE STATE OF COLORADO SHALL NOT BE TRANSFERRED BY THE STATE OF COLORADO FROM THE PUBLIC ESTATE TO PROPRIETARY INTEREST.

(5) Acosss By THE PUBLIC ALONG, AND ON, THE WETTED NATURAL PERIMETER OF A STREAM BANK OF A WATER COURSE OF ANY NATURAL STREAM IN COLORADO IS A RIGHT TO THE PUBLIC TO THE USE OF ITS OWN WATER IN CONCERT WITH THE COLORADO PUBLIC TRUST DOCTRINE.

(a) THs Richt or THE PUBLIC TO THE USE OF THE WATER IN A NATURAL STREAM AND TO THE LANDS OF THE BANKS OF THE STREAMS WITHIN COLORADO SHALL EXTEND TO THE NATURALLY wETTED HIGH WATER MARK OF THE STREAM AND IS IMPRESSED WITH NAVIGATION SERVITUDE FOR COMMERCE AND PUBLIC USE AS RECOGNIZED IN THE COLORADO PUBLIC TRUST DOCTRINE.

(b) THE WATER OF A NATURAL STREAM AND ITS STREAMBED, AND THE NATURALLY WETTED LANDS OF THE SHORES OF THE STREAM, SHALL NOT BE SUBJECT TO THE LAW OF TRESPASS AS THE WATER OF NATURAL STREAMS AND THE BANKS OF THEIR STREAM COURSES ARE PUBLIC HIGHWAYS FOR COMMERCE AND PUBLIC USE.

(c) PUBLIC USE OF WATER, RECOGNIZED AS A RIGHT IN THE CoLORADO PUBLIC TRUST oc-TRINE, SHALL NOT BE CONTROLLED IN LAW AS A USUFRUCT BUT SHALL BE A RIGHT OF THE PUBLIC TO PROTECT AND ENJOY ITS OWN WATER.

(6) ENFORCEMENT AND IMPLEMENTATION OF SUBSECTIONS (2) to (7) or THIS SECTION OF THE COLORADO PUBLIC TRUST DOCTRINE TO PROTECT THE PUBLICS RIGHTS AND INTERESTS IN WATER ARE MANDATED TO THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES OF COLORADO STATE GOVERNMENT TO ACT AS STEWARDS TO PROTECT THE PUBLICS INTERESTS IN ITS WATER ESTATE. ANY CITIZEN OF THE STATE OF COLORADO SHALL HAVE STANDING IN JUDICIAL ACTIONS SEEKING TO COMPEL THE STATE OF COLORADO TO ENFORCE THE PROVISIONS OF THIS SECTION.

(7) SussEctions (2) to (7) or THIS SECTION ARE SELF-ENACTING AND SELFP-EXECUTING, BUT LAWS MAY BE ENACTED SUPPLEMENTARY TO AND IN PURSUANCE OF, BUT NOT CONTRARY TO, THE PROVISIONS THEREOF.

Pri1LIip DOE

LITTLETON, COLORADO

RicHarDp HAMILTON

FAIRPLAY, COLORADO

Ballot Title Setting Board

Proposed Initiative 2011-2012 #3

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

An amendment to the Colorado constitution concerning the public's rights in the water of natural streams, and, in connection therewith, making public ownership of such water legally superior to water rights, contracts, and property law; granting unrestricted public access along and use of natural streams and their stream banks up to the naturally wetted high water mark; prohibiting the state from transferring its water rights; allowing the state government to manage others' water rights, while requiring state government to act as steward of and to protect, enforce, and implement public ownership of water; and following any Colorado citizen to sue to enforce the amendment. The ballot title and submission clause as designated and fixed by the Board is as follows:

Shall there be an amendment to the Colorado constitution concerning the public's rights in the water of natural streams, and, in connection therewith, making public ownership of such water legally superior to water rights, contracts, and property law; granting unrestricted public access along and use of natural streams and their stream banks up to the naturally wetted high water mark; prohibiting the state from transferring its water rights; allowing the state government to manage others' water rights, while requiring state government to act as steward of and to protect, enforce, and implement public ownership of water; and allowing any Colorado citizen to sue to enforce the amendment?

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

A. Whether, in identifying the measure's subject in the Title as "the public's rights in waters of natural streams," the Board incorrectly determined that Initiative 2011-2012 # 3 is limited to a single subject, as required by Article V, section 1(5.5) of the Colorado Constitution and C.R.S. § 1-40-106.5, in light of the multiple objectives of this measure to:

1. Adopt the "Public Trust Doctrine" that would subordinate water rights to public ownership interests; and

2. Transfer real property adjacent to and beneath all natural streams from private landowners to the public.

B. Whether the Board's title and ballot title and submission clause for Initiative 2011-2012 #3 is unfair in that the phrase "concerning the public's rights in the water of natural streams" does not clearly express a single subject.

2 . We again emphasize that we may not opine on the merits of Initiative 3 nor may we suggest how the initiative might be applied if enacted. In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 443. The effects this measure could have on Colorado water law if adopted by voters are irrelevant to our review of whether Initiative 3 and its Titles contain a single subject.