Title, Ballot Title, & Submission Clause for 2011-2012 45 v. Hamilton

2012 CO 26, 274 P.3d 576, 2012 WL 1259041

• Court: Supreme Court of Colorado
• Decided: April 16, 2012
• Docket: 12SA22
• 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. 45 ("Initiative 45"), 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 45 and its Titles state a single subject-"public control of waters"-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

12 Respondents Richard G. Hamilton and Phillip Doe proposed Initiative 45 to amend article XVI, section 6 of the Colorado Constitution with the goal of expanding the seope of public control over all of the state's water. The existing version of article XVI, section 6 addresses the diversion of unappropriated waters of natural streams. Initiative 45, with proposed subsection (1), would delete the "unappropriated" and "natural stream" language of the exiting provision to allow diversion of "water within the state of Colorado." This right to divert would be limited or curtailed "to protect natural elements of the public's dominant water estate by holding as unlawful any usufruct use of water causing irreparable harm to the public's estate."

13 Proposed subsection (2) would protect the revised public water estate by requiring appropriators to return the water they use "unimpaired to the public." Proposed subsection (8) would additionally clarify the extent of the public's control of Colorado water by declaring that the "Colorado doctrine of appropriation" would involve a public grant of a water use "privilege" to appropriators, so long as they divert water for "the common good." Proposed subsection (4) would define the state government's role as "stewards" of the amended public water estate, and would task state officials with implementing and enforcing the revised water regime. Proposed subsection (5) would confer standing upon Colorado citizens to compel the state government to comply with the stewardship obligation outlined in subsection (4). Finally, proposed subsection (6) would authorize the legislature to enact laws supplementary to the provisions of the constitutional amendment.

T4 The Title Board designated the Titles for Initiative 45 in accordance with section 1-40-106(1), C.R.S. (2011), during a public meeting on January 4, 2012. The title as designated and fixed by the Title Board reads as follows:

An amendment to the Colorado constitution concerning public control of water, and, in connection therewith, allowing ap-propriative water rights to be limited or curtailed by prohibiting any use of water that would irreparably harm the public ownership interest in water; expanding the right to appropriate water for beneficial use to all water within Colorado, including nontributary groundwater and not limited to unappropriated water, subject to the public ownership interest; requiring water users to return water unimpaired after use to the public so as to protect the natural environment and the use and enjoyment of water by the public; requiring state government to act as steward of and to protect, enforce, and implement the public ownership interest; and allowing any Colorado citizen to sue to enforce the amendment.

(Emphasis added).

15 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 January 11, 2012, arguing that Initiative 45 and the adopted 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 a meeting on January 18, 2012. It discussed the measure, and denied Kemper's objections, finding that both Initiative 45 and the Titles contained a single subject: "public control of waters." Kemper seeks this Court's review of the Title Board's findings pursuant to section 1-40-107(2).

II. Analysis

T6 We hold that the Title Board correctly found that Initiative 45 contains a single subject because the proposed subsections necessarily and properly relate to "public control of waters." We also hold that the Titles set by the Title Board satisfy the clear title requirement because they fairly and clearly reflect the single subject of Initiative 45.

T7 We first describe our limited role in reviewing the Title Board's single subject determination. We then outline Colorado's single subject rule, noting the dangers of omnibus initiatives. Analyzing the plain language of Initiative 45, we hold that the proposal complies with the single subject rule. Finally, we describe and apply the clear title requirement to conclude that the Titles clearly and fairly express the true intent and meaning of Initiative 45 and its single subject.

A. Single Subject

1. Standard of Review

T8 In reviewing a challenge to the Title Board's single subject decision, "we employ all legitimate presumptions in favor of the propriety of the [Title] Board's actions." In re Title, Ballot Title, and Submission Clause for 2009-2010 No. 45, 234 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 Casimo Gaming Initiative Adopted on April 21, 1982, 649 P.2d 303, 306 (Colo.1982).

179 In addition, 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. 43, 46 P.3d 438, 443 (Colo.2002). We will sufficiently examine the initiative, 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). During this examination, we employ the general rules of statutory construction and accord the language of the proposed initiative its plain meaning. In re Title, Ballot Title and Submission Clause, for 2007-2008, No. 17, 172 P.3d 871, 874 (Colo.2007).

2. The Single Subject Requirement

110 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; 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] 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 (1908); see In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 441 (describing 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).

111 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 (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 12 We have previously explained that the single subject rule prevents two "dangers" associated with omnibus initiatives. See In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 442-43. 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. 43, 46 P.3d at 442; see § 1-40-106.5(1)(e)(ID).

113 Recognizing these dangers, we have applied the single subject rule to water-related initiatives-similar to Initiative 45-on several previous occasions. In 1995 and 2007, we held that the proponents' proposed public trust initiatives contained multiple subjects. See Pub. Rights in Waters II, 898 P.2d at 1077; In re Initiative 2007-2008, No. 17, 172 P.3d at 872-73. In Public Rights in Waters II, we applied the Sours test and determined that the proposed initiative violated the single subject rule because no nee-essary 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 doctrine 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 Initiative 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 Title, Ballot Title, Submission Clause, and Summary Adopted March 20, 1996, by the Title Bd. Pertaining to Proposed Initiative 1996-6, 917 P.2d 1277, 1278-81 (Colo.1996).

1 14 With this legal framework in mind, we turn to Initiative 45.

3. Initiative 45 Contains a Single Subject

115 Initiative 45 contains a single subject because its provisions necessarily and properly relate to the "public control of waters." Subsection (1) of the proposed amendment creates a new appropriative water regime focused on the "public control of waters" by eliminating the "unappropriated" and "natural stream" limitations of the existing legal framework, and replacing them with a comprehensive "dominant water estate" controlled by the public. Proposed subsection (2) necessarily and properly relates to the doctrine created in proposed subsection (1) because subsection (2) grants appropriators a usufructory property right in the publicly-controlled water, while also subordinating that right of use to the dominant public interest by requiring appropriators to return used water unimpaired to the public.

T16 Additionally, proposed subsection (3) necessarily and properly relates to the "pub-lie control of waters" because it limits appro-priative uses to those that advance "the common good." Proposed subsections (4) and (5) describe the necessary implementation and enforcement details of the publicly-controlled water regime by requiring the state government to "steward" the "public's rights and interests" in "its water estate," and by granting citizens standing to compel the government to fulfill these stewardship duties. Finally, proposed subsection (6) necessarily and properly allows the legislature to create a statutory body of law to supplement the new constitutional water requirements, just as the current water statutes necessarily supplement the existing constitutional provisions.

T17 As the Title Board correctly found, Initiative 45 "only modifies the existing rights and interests in water between private individuals and the public, ... it does not alter the long-recognized scope of the subject." The proposal's provisions are dependent upon and connected to each other because they define the purpose of the measure, describe the broadened seope of the public's control over Colorado's water resources, and outline how to implement and enforce this dominant public water estate. See In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 441. As such, like "the pub-Hic's interest in state waters," "public control of waters" is "sufficiently narrow and sufficiently connected" with all of the proposed initiative's provisions to satisfy the single subject rule. See In re Proposed Initiative 1996-6, 917 P.2d at 1278-81.

{18 Uulike "water" alone, "public control of waters" is not an "overarching theme" employed by Initiative 45's proponents to impermissibly encompass separate and unconnected purposes. See Pub. Rights in Waters II, 898 P.2d at 1080. Rather, "public control of waters" describes the single subject of the proposed amendment because, as described above, the proposed subsections necessarily and properly relate to one another by together creating a new water appropriation doctrine centered on the concept of a dominant public water estate.

119 Further, Initiative 45 does not trigger either of the two "dangers" of omnibus initiatives. See In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 442-43. First, the proponents do not meld unrelated subjects together to garner support for Initiative 45 from various factions of the electorate. Id.; see § 1-40-106.5(1)(e)(I). Instead, Initiative 45 is a cohesive proposal to amend the state constitution to create a new water regime focused on the "public control of waters." While Initiative 45 indeed involves a number of. different provisions, its discrete subsections are necessarily and properly connected, rather than disconnected or incongruous, because they all relate to the same revised legal framework. See Pub. Rights in Waters II, 898 P.2d at 1079.

T20 Initiative 45 also will not lead to the "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. 43, 46 P.3d at 442; see § 1-40-106.5(1)(e)(II). Our review of the proposal's plain language does not reveal any embedded provisions that would lead to voter surprise or fraud. In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 442. Rather, the plain language of the measure unambiguously expands the public's control over all of the state's water resources, subordinates appro-priative rights to the public interest, and implements and enforces the publicly-controlled regime by way of state government stewardship. As such, voters would not be surprised to learn that by voting for Initiative 45, they would be voting to alter the existing water regime to prioritize the public control of water in Colorado. Initiative 45 contains a single subject.²

B. Clear Title

1. Clear Title Requirement

$21 An initiative's single subject must be clearly expressed in its title. Colo. Const. art. V, § 1(5.5); see In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 647-48. A sufficiently clear title will "enable the electorate, whether familiar or unfamiliar with the subject matter of a particular proposal, to determine intelligently whether to support or oppose such proposal." In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 648; see also § 1-40-106(8)(b).

122 In setting a title, 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' or 'no' vote will be unclear." § 1-40-106(8)(b). The Title Board need not set the "best possible" title; rather, the title must fairly reflect the proposed initiative such that voters "will not be misled into support for or against a proposition by reason of the words employed by the [Title] Board." In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 648. This Court affords the Title Board great deference in the exercise of its drafting authority. Id. We will only reverse the Title Board's decision if the titles are "insufficient, unfair, or misleading." Id. As we did with the text of the initiative, we accord the language of the Titles their plain meaning during our review. See, e.g., In re 2007-2008, No. 17, 172 P.3d at 874.

2. The Titles Satisfy the Clear Title Requirement

128 The Titles satisfy the clear title requirement because they fairly reflect the true intent and meaning of Initiative 45, and clearly express the single subject of the proposed measure. See Colo. Const. art. V, § 1(5.5); § 1-40-106(8)(b). The Titles first expressly state the single subject of Initiative 45 by describing the proposal as "(aln amendment to the Colorado constitution concerning public control of water." (Emphasis added). They then summarize how proposed subsections (2) through (6) of the proposal relate to this subject, and thereby reflect the true intent and meaning of the measure.

124 The Title Board employed sufficiently clear language in setting the Titles to allow the electorate to "determine intelligently whether to support or oppose" Initiative 45, even without familiarity with water law principles. See In re Proposed Initiative 2009-2010 No. 45, 234 P.3d at 648; see also § 1-40~106(8)(b). Although the Titles necessarily contain several terms of art due to the technical nature of Colorado water law, they also summarize how Initiative 45 will revise the state constitution in sufficiently plain language to allow voters to understand the purpose and substance of the proposal. Voters will not be misled into supporting or rejecting Initiative 45 due to the words employed by the Title Board because a "yes" vote will plainly expand public control over the state's water, while a "no" vote will unquestionably reject the proposal's revisions to the existing constitutional framework. Thus, the Titles are not misleading, and fairly reflect the purpose and substance of Initiative 45 and its single subject. See § 1-40-106(8)(b). We therefore defer to the Title Board and affirm its designation of the Titles.

III. Conclusion

25 We hold that Initiative 45 contains a single subject. We also hold that the Titles fairly reflect the true intent and meaning of the proposed measure. We therefore affirm the Title Board.

Justice HOBBS dissents.

APPENDIX-Initiative 45 and Titles

Initiative to Amend ARTICLE XVI, Section 6, of the Colorado Constitution

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

In the constitution of the state of Colorado, amend section 6 of article XVI as follows:

Section 6. Diverting unappropriated water-priority--preferred-uses LIMITATIONS. (I) The right to divert the-unappropriated-waters-of any natural-stream WarEr Wirein THs Strats or Conorapo to beneficial uses shall never be denied, BUT MAY BE LIMITED, OR CURTAILED, S0 AS TO PROTECT NATURAL ELEMENTS OF THE PUBLIC'S DOMINANT WATER ESTATE BY HOLDING UNLAWFUL ANY USUFRUCT USE OF WATER CAUSING IRREPARABLE HARM TO THE PUBLICS ESTATE. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of-any natural-stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

(2) THs UsE oF wATER IS A USUFRUCT PROPER TY RIGHT, GRANTED BY THE PUBLIC TO WATER USERS, THAT SHALL REQUIRE THE WATER USE APPROPRIATOR TO RETURN WATER UNIMPAIRED TO THE PUBLIC, AFTER USE, S0 AS TO PROTECT THE NATURAL ENVIRONMENT AND THE PUBLIC'S USE AND ENJOYMENT OF WATERS.

(3) Tur Cororabo DoctRing® or AprpropRIA TION ACKNOWLEDGES THAT THE PUBLIC CONFERS THE PRIVILEGE, BY GRANT, FOR THE USE OF ITS WATER, AND THE DIVERSION OF THE SAME, TO ANY APPROPRIATOR FOR THE COMMON GOOD.

(4) ENFORCEMENT AND IMPLEMENTATION OF THIS SECTION THAT CONFERS, BY GRANT, THE USE OF THE PUBLIC'S WATER TO USERS AND THAT STIPULATES THAT USES OF WATER SHALL BE PROTECTIVE OF THE PUBLICS RIGHTS AND INTERESTS, ARE MANDATED TO THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES OF COLORADO STATE COVERNMENT TO ACT, AS STEWARDS, TO PROTECT AND ENFORCE THE PUBLIC'S INTERESTS IN ITS WATER ESTATE.

(5) Any cltIizmN oF THE STATE oF COLORADO Hays In Jupiciat Actions SEExinc To Comper THs Stare Or CoLORADO TO ENFORCE THE PROVISIONS OF THIS SECTION.

(6) Provisions of this section are self-enacting and self-executing, but laws may be enacted: supplementary to, and in pursuance of, but not contrary to, provisions of this section.

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

An amendment to the Colorado constitution concerning public control of water, and, in connection therewith, allowing appropriated water rights to be limited or curtailed by prohibiting any use of water that would irreparably harm the public ownership interest in water; expanding the right to appropriate water for beneficial use to all water within Colorado, including nontributary groundwater and not limited to unappropriated water, subject to the public ownership interest; requiring water users to return water unimpaired after use to the public so as to protect the natural environment and the use and enjoyment of water by the public; requiring state government to act as steward of and to protect, enforce, and implement the public ownership interest; and allowing 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 public control of water, and, in connection therewith, allowing appropriated water rights to be limited or curtailed by prohibiting any use of water that would irreparably harm the public ownership interest in water; expanding the right to appropriate water for beneficial use to all water within Colorado, including nontributary groundwater and not limited to unappropriated water, subject to the public ownership interest; requiring water users to return water unimpaired after use to the public so as to protect the natural environment and the use and enjoyment of water by the public; requiring state government to act as steward of and to protect, enforce, and implement the public ownership interest; 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 the Ballot Title Setting Board (the "Board") incorrectly determined that Initiative 2011-2012 No. 45 is limited to a single subject, as required by Article V, section 1(5.5) of the Colorado Constitution and CRS. § 1-40-106.5, in light of the multiple objectives of this measure to:

1. Subordinate both past and future water diversion and use rights to mandated state government enforcement of a dominant public water estate;

2. Expand the scope of water appropriation under article XVI, section 6 of the current Constitution, by removing the terms limiting such appropriation to "unappropriated waters of any natural stream"" so as to allow appropriation of nontributary groundwater without consent of the overlying landowner; and

3. Impose a requirement that water appropriators return water unimpaired to the stream.

B. Whether the Board's title and ballot title and submission clause for Initiative 2011-2012 No. 45 is unfair in that the phrase "concerning the public control of waters" is misleading and fails to clearly express a single subject that encompasses all the issues actually addressed in the proposed initiative.

2 . Kemper argues that, if adopted, Initiative 45 would so drastically alter the landscape of Colorado water law that it could not possibly contain a single subject. We again emphasize that our limited role in this process prohibits us from opining on how Initiative 45 might operate if applied. In re Proposed Initiative 2001-02 No. 43, 46 P.3d at 443. We therefore refrain from analyzing the merits and potential effects of Initiative 45, as Kemper suggests, and instead confine our single subject review to the plain language of the proposed amendment.