Cordero v. Leahy (In re Title)

• Decision Date: 30 June 2014
• Docket Number: Supreme Court Case No. 14SA121,Supreme Court Case Nos. 14SA124
• Citation: 328 P.3d 155
• Parties: In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2013–2014 #90. Mizraim S. Cordero and Scott Prestidge, Petitioners/Cross–Respondents, v. Caitlin Leahy and Gregory Diamond, Respondents/Cross–Petitioners, and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board. In the Matter of the Title, Ballot Title and Submission Clause for 2013–2014 #93. Mizraim S. Cordero and Scott Prestidge, Petitioners, v. Caitlin Leahy and Gregory Diamond, Respondents, and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board.
• Court: Colorado Supreme Court

328 P.3d 155

In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2013–2014 #90.

Mizraim S. Cordero and Scott Prestidge, Petitioners/Cross–Respondents,

v.Caitlin Leahy and Gregory Diamond, Respondents/Cross–Petitioners,andSuzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board.

In the Matter of the Title, Ballot Title and Submission Clause for 2013–2014 #93.

Mizraim S. Cordero and Scott Prestidge, Petitioners,

v.Caitlin Leahy and Gregory Diamond, Respondents,andSuzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board.

Supreme Court Case No. 14SA121 Supreme Court Case Nos. 14SA124

Supreme Court of Colorado.

June 30, 2014

Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2013), Appeal from the Ballot Title Setting Board

Attorneys for Petitioner: Hogan Lovells US LLP, Chantell Taylor, Elizabeth H. Titus, Denver, CO.

Attorneys for Respondents: Heizer Paul LLP, Martha M. Tierney, Edward T. Ramey, Denver, CO.

Attorneys for Ballot Title Board John W. Suthers, Attorney General, Sueanna P. Johnson, Assistant Attorney General, Denver, Colorado.

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶ 1 In this opinion, we review the actions of the Title Board in setting titles and ballot title and submission clauses (collectively, “titles”) for Initiatives 2013–2014 # 90 and # 93 (collectively, “Proposed Initiatives”). ¹ We hold that each of the Proposed Initiatives contain one subject—the expansion of local governments' authority to enact laws regulating oil and gas development that are more restrictive than state law. We also hold that the titles set by the Title Board satisfy the clear title requirement because they are not misleading and they fairly reflect the purposeof the Proposed Initiatives. We therefore affirm the actions of the Title Board.

I. Facts and Procedural History.

¶ 2 Caitlin Leahy and Gregory Diamond (“Proponents”) are the designated proponents of the Proposed Initiatives. These initiatives are substantially similar in language, and are alternative versions of a single measure Proponents seek to place on the ballot for the 2014 general election.² Each initiative would amend the Colorado Constitution by creating article XXX, which would authorize local governments to enact laws regulating oil and gas development that are more restrictive than state law. The principal difference ³ between the two initiatives is that Initiative # 90 states that the authority of local governments to regulate oil and gas development “includes the ability to enact limits,” whereas Initiative # 93 states that the authority includes “the ability to enact prohibitions or limits.” (Emphasis added). Both initiatives provide that the provisions of the proposed article XXX apply to “every Colorado city, town, county, and city and county, notwithstanding any provision of article XX, or section 16 of article XIV, of the Colorado constitution.” Finally, both initiatives state that the laws enacted pursuant to the proposed article XXX are not a taking of private property and do not require the payment of just compensation pursuant to sections 14 and 15 of article II of the Colorado Constitution.

¶ 3 On March 21, 2014, Proponents submitted a final version of the Proposed Initiatives to the Secretary of State. On April 3, 2014, the Title Board conducted hearings for each initiative and set titles in accordance with section 1–40–106(1), C.R.S. (2013). On April 10, 2014, Mizraim Cordero and Scott Prestidge (“Petitioners”) filed motions for rehearing, arguing that the Proposed Initiatives violated the single subject requirement and that the titles failed to describe important aspects of the measures and contained an impermissible catch phrase.

¶ 4 Following a rehearing on April 16, 2014, the Title Board concluded that the Proposed Initiatives contained a single subject, but modified the titles in response to concerns raised by the Petitioners. Specifically, the Title Board removed the term “hydraulic fracturing” from both titles, and removed the phrase “prohibit or” from the title for Initiative # 93, upon Proponents' oral request.

¶ 5 Petitioners now raise several challenges to the Title Board's actions under section 1–40–107(2), C.R.S. (2013). Petitioners contend that the Title Board erred in setting the titles because the Proposed Initiatives contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, C.R.S. (2013). In addition, Petitioners contend that the titles of the Proposed Initiatives are misleading because: (1) they do not reflect the definition of “oil and gas development”; and (2) Initiative # 93 omits the term “prohibit.”

¶ 6 Proponents filed a cross-petition challenging the Title Board's removal of the term “hydraulic fracturing” from the title for Initiative # 90.

II. Standard of Review

¶ 7 In reviewing Title Board decisions, “we employ all legitimate presumptions in favor of the propriety of the Board's actions.” In re Title, Ballot Title & Submission Clause for 2011–2012 No. 3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565; In re Title, Ballot Title & 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 2011–2012 No. 3, 274 P.3d at 565.

¶ 8 The Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause. In re Title, Ballot Title & Submission Clause, & Summary Pertaining to Proposed Initiative on Parental Choice in Educ., 917 P.2d 292, 294 (Colo.1996). We will reverse the Title Board's decision only if a title is insufficient, unfair, or misleading. In re 2009–2010 No. 45, 234 P.3d at 648; see also In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 No. 29, 972 P.2d 257, 266 (Colo.1999) (observing that this court will reverse a title only if it contains a “material omission, misstatement, or misrepresentation”) (internal quotation marks omitted).

¶ 9 In our limited review of the Title Board's actions, we do not address the merits of the proposed initiatives nor suggest how they might be applied if enacted. In re 2011–2012 No.3, 274 P.3d at 565. However, we must examine their wording to determine whether the initiatives and their titles comport with the single subject and clear title requirements. In re Title, Ballot Title & Submission Clause, & Summary for 2005–2006 No. 75, 138 P.3d 267, 271 (Colo.2005). In conducting this limited inquiry, we employ the general rules of statutory construction and give 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).

III. Analysis

A. Single Subject Requirement

¶ 10 Petitioners assert that the Title Board lacked authority to set the titles because the Proposed Initiatives contain multiple subjects in violation of the single subject requirement in article V, section 1 (5.5) of the Colorado Constitution, which provides:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.

See also§ 1–40–106.5(1)(a), C.R.S. (2013) (addressing the constitutional single subject requirement).

¶ 11 The single subject requirement serves two functions: (1) “[t]o forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits”; and (2) “[t]o prevent surreptitious measures and apprise the people of the subject of each measure, that is, to prevent surprise and fraud from being practiced upon voters.” § 1–40–106.5(1)(e). Thus, “the subject matter of an initiative must be necessarily and properly connected rather than disconnected or incongruous.” In re Title, Ballot Title & Submission Clause for 2011–2012 No. 3, 2012 CO 25, ¶ 9, 274 P.3d 562, 565 (internal quotation marks and citation omitted). An initiative violates the single subject requirement where it relates to more than one subject and has at least two distinct and separate purposes. Id. (citing People ex. rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903)). Conversely, a proposed initiative that “tends to affect or carry out one general objective or purpose presents only one subject,” and “provisions necessary to effectuate the purpose of the measure are properly included within its text.” In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 No. 256, 12 P.3d 246, 253 (Colo.2000).

¶ 12 Because the Title Board “is vested with considerable discretion in setting the title [and] ballot title and submission clause,” in reviewing actions of the Title Board, “we must liberally construe the single-subject requirements for initiatives.” In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative “1996–17”, 920 P.2d 798, 802 (Colo.1996) (per curiam). We also liberally construe the single subject requirement to “avoid unduly restricting the initiative process.” In re Title, Ballot Title & Submission Clause for 2009–2010 No. 24, 218 P.3d 350, 353 (Colo.2009).

1. The Titles Satisfy the Single Subject Requirement

¶ 13 The Proposed Initiatives expand local governments' authority to enact laws regulating oil and gas development that are more restrictive than state...