Johnson v. Curry (In re Title, Ballot Title)
| Decision Date | 05 July 2016 |
| Docket Number | Supreme Court Case No. 16SA154,Supreme Court Case No. 16SA153 |
| Citation | 2016 CO 55,374 P.3d 460 |
| Parties | IN the MATTER OF the TITLE, BALLOT TITLE and Submission Clause for 2015–2016 #132 Donna R. Johnson, Petitioner v. Kathleen Curry and Frank McNulty, Respondents and Suzanne Staiert, Frederick Yarger, and Sharon Eubanks, Title Board. In the Matter of the Title, Ballot Title and Submission Clause for 2015–2016 #133 Donna R. Johnson, Petitioner v. Kathleen Curry and Frank McNulty, Respondents and Suzanne Staiert, Frederick Yarger, and Sharon Eubanks, Title Board. |
| Court | Colorado Supreme Court |
Attorneys for Petitioner: Recht Kornfeld, P.C., Mark G. Grueskin, Denver, Colorado
Attorneys for Respondents: Ireland Stapleton Pryor & Pascoe, P.C., Kelley B. Duke, Benjamin J. Larson, Denver, Colorado
Attorneys for Ballot Title Board: Cynthia H. Coffman, Attorney General, Matthew D. Grove, Assistant Solicitor General, Denver, Colorado
¶1 In these original proceedings pursuant to section 1–40–107(2), C.R.S. (2015), Petitioner Donna R. Johnson challenges the actions of the Title Board in setting titles and ballot title and submission clauses (collectively, “titles”) for proposed Initiatives “2015–2016 #132 ‘Colorado Redistricting Commission’ ” (“Initiative #132”) and “2015–2016 #133 ‘Colorado Legislative Redistricting Commission’ ” (“Initiative #133”).1 We conclude that both of the proposed Initiatives encompass multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, C.R.S. (2015). Accordingly, we reverse the actions of the Title Board.
¶2 Kathleen Curry and Frank McNulty (“Proponents”) are the designated proponents of proposed Initiatives #132 and #133. These Initiatives are substantially similar in language and form and represent two of several redistricting concepts proposed by the Proponents during the 2016 election cycle. Both Initiatives would amend article V, sections 44 to 48 of the Colorado Constitution () by restructuring or replacing the Colorado Reapportionment Commission—the state commission presently tasked with establishing, after each federal census, the boundaries for the thirty-five state senate districts and sixty-five state house of representative districts for the Colorado General Assembly. Colo. Const. art. V, §§ 45, 46, 48. The Colorado Reapportionment Commission presently consists of eleven members who are appointed by officials in the legislative, executive, and judicial branches of state government. Colo. Const. art. V, § 48 (1)(b). Four members of the commission are appointed by leaders in the senate and house of representatives; three members are appointed by the governor; and four members are appointed by the chief justice of the Colorado Supreme Court. Id. Article V, sections 48(1)(a) and (c) set forth political affiliation and geographical residency requirements for the membership of the commission and establish the timeframes and processes for creating the decennial state legislative redistricting plan.
¶3 Both proposed Initiatives begin by adding to article V of the Colorado Constitution a section entitled “Political gerrymandering prohibited,” which declares that the practice of political gerrymandering must end, and that the public's interest in creating fair and competitive districts is best accomplished by an independent commission of balanced appointments that is free from political influence and that relies on nonpartisan staff to divide the state into districts without regard to political pressures or to political considerations.
¶4 Next, the proposed Initiatives essentially rewrite article V, section 48 to restructure or replace the Reapportionment Commission. Initiative #133 would restructure the Reapportionment Commission and rename it the Independent Colorado Legislative Redistricting Commission. This restructured commission would remain responsible for setting boundaries for state legislative districts. Initiative #132 would replace the Reapportionment Commission with a new commission called the Independent Colorado Redistricting Commission. This new commission likewise would set boundaries for state legislative districts, but unlike #133, the new commission created by #132 would take on the additional responsibility of setting boundaries for Colorado's congressional districts—a responsibility presently vested with the General Assembly. Colo. Const. art. V, § 44.
¶5 Through amendments to sections 44 through 48 of article V, both proposed Initiatives would make substantial changes to the Colorado Reapportionment Commission and its processes. For example, both Initiatives modify the criteria to be used in drawing districts; subject the commission to open meetings and open records laws; require a two-thirds vote of commissioners to approve any action of the commission; change the process for drafting and approving redistricting plans and the process for supreme court review of such plans; and allow the reconfigured commission to adopt rules to govern its administration and operation, among other details.
¶6 Both proposed Initiatives would also modify the membership of the commission by increasing the total number of members to twelve; prohibiting registered lobbyists, as well as members of or candidates for the U.S. Congress or the General Assembly, from serving as members of the commission; and modifying the political affiliation and geographical residency requirements for the membership of the commission. In addition, and relevant here, both Initiatives would require the Colorado Supreme Court Nominating Commission (the “Supreme Court Nominating Commission” or “Nominating Commission”) to “establish and announce a process for appointment” of the four members of the commission who are either registered with a minor political party or unaffiliated with any political party. The proposed Initiatives would require the Nominating Commission to solicit, receive, and review applications for these positions; to generate a list of ten recommended applicants representing, to the extent possible, Colorado's racial, ethnic, and geographic diversity; and to forward this list of recommended applicants to the eight previously appointed members of the commission. The proposed Initiatives would require the eight appointed members, by unanimous vote, to appoint the remaining four members of the commission from the list of finalists generated by the Nominating Commission. If the commissioners fail in their responsibility to make these appointments, the proposed Initiatives would require the director of the General Assembly's nonpartisan research staff to randomly select names from the Nominating Commission's list in a public drawing until the commission is filled with members who collectively meet the geographic residency requirements.
¶7 On April 8, 2016, Proponents submitted a final version of Initiatives #132 and #133 to the Secretary of State. On April 20, 2016, the Title Board conducted hearings for each initiative and set titles in accordance with section 1–40–106(1), C.R.S. (2015). On April 27, 2016, Petitioner filed motions for rehearing, arguing that the Initiatives contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. After a rehearing on April 28, 2016, the Title Board denied both motions. Following the rehearing, the title set for Initiative #133 states:
An amendment to the Colorado constitution concerning state legislative redistricting and, in connection therewith, restructuring the state commission that sets boundaries for state senatorial and representative districts to require at least 4 of the 12 commissioners be affiliated with a minor political party or unaffiliated with any political party; prohibiting commissioners from being registered lobbyists or members or candidates for the U.S. Congress or the Colorado legislature; requiring the agreement of at least 8 of 12 commissioners to approve any action of the commission; adding competitiveness as the final criteria to be used in drawing state legislative districts; establishing a procedure to set legislative district boundaries if the commission is unable to adopt a plan; and requiring that the commission's work be done in public meetings.
¶8 The title set for Initiative #132 is similar to the title set for #133, except for an initial reference to “redistricting” (in lieu of “state legislative redistricting”); a reference to “replacing” (in lieu of “restructuring”) the reapportionment commission; and language reflecting the newly created commission's task to establish congressional districts in addition to state legislative districts:
An amendment to the Colorado constitution concerning redistricting in Colorado, and, in connection therewith, replacing the Colorado reapportionment commission with a Colorado redistricting commission; directing that the commission redistrict congressional districts and state legislative districts; requiring the appointment of 12 commissioners, of whom at least 4 must be either a member of a minor political party or unaffiliated with any political party; prohibiting commissioners from being registered lobbyists or members or candidates for either Congress or the state legislature; requiring the agreement of at least 8 of 12 commissioners to approve any action of the commission; adopting existing criteria for congressional districts and adding competitiveness to the criteria for state legislative and congressional districts; requiring that only the nonpartisan staff of the commission may submit plans to the commission; and requiring that the commission's work be done in public meetings.
¶9 Petitioner invokes this court's jurisdiction under section 1–40–107(2), C.R.S. (2015). She contends that the Title Board erred in setting the titles because the Initiatives contain...
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