Fine v. Ward (In re Titles)
| Decision Date | 27 June 2022 |
| Docket Number | 22SA142,22SA101,22SA155 |
| Citation | 2022 CO 37 |
| Parties | Christopher Fine, Petitioner v. Steven Ward and Levi Mendyk, Respondents In the Matter of the Titles, Ballot Titles, and Submission Clauses for Proposed Initiatives 2021-2022 #67, #115, and #128 and Teresa Conley, David Powell, and Jeremiah Barry Title Board: |
| Court | Colorado Supreme Court |
Original Proceedings Pursuant to § 1-40-107(2), C.R.S. (2021) Appeals from the Ballot Title Setting Board
Attorneys for Petitioner:
Recht Kornfeld, P.C.
Denver, Colorado
Attorneys for Respondent:
Maven Law Group
Suzanne Taheri
Englewood, Colorado
Attorneys for Title Board in Cases 22SA101 and 22SA155:
Philip J. Weiser, Attorney General
Emily B. Buckley, Assistant Attorney General
Denver, Colorado
Attorneys for Title Board in Case 22SA142:
Philip J. Weiser, Attorney General
Peter G. Baumann, Assistant Attorney General
OPINION
¶1 In this opinion, we consider whether three proposed initiatives-Initiative 2021-2022 #67, Initiative 2021-2022 #115, and Initiative 2021-2022 #128 (collectively, "Initiatives")-violate the single-subject requirement of the Colorado Constitution. Each of the Initiatives includes provisions that would allow food retailers already licensed to sell beer to also sell wine and provisions that would authorize third-party delivery services to deliver all alcohol beverages sold from licensed retailers to consumers at their homes.
¶2 We hold that these provisions combine two subjects that are not necessarily or properly connected: (1) the sale of wine at grocery stores and (2) the home delivery of alcohol by third parties. The Initiatives therefore violate the single-subject requirement, and the Title Board lacked jurisdiction to set titles for them. Accordingly, we reverse the Board's actions.
¶3 Steven Ward and Levi Mendyk (collectively, "Respondents") submitted the Initiatives to the Board for designation of a fair title and submission clause pursuant to section 1-40-106, C.R.S. (2021). The Board conducted hearings on the Initiatives in March and April 2022 and designated and fixed their titles.[1]
¶4 Christopher Fine ("Petitioner"), a registered elector, then filed motions for rehearing on each fixed title and its corresponding ballot title and submission clause, alleging in part that the Initiatives contain multiple subjects. See Colo. Const. art. V, § 1(5.5); § 1-40-106.5, C.R.S. (2021). The Board reheard the Initiatives and subsequently made some edits to the titles, but it otherwise denied Petitioner's motions with one member of the Board dissenting.
¶5 During the rehearing on Initiative #67, the dissenting member of the Board observed: "I am thinking there may very well be people who don't have a problem with adding wine to grocery stores and convenience stores but have a bigger concern when all types of hard liquor could be expanded and delivered in the manner that's proposed by proponents." Another member of the Board expressed the same concerns, despite ultimately voting to set title.
¶6 Petitioner filed this original proceeding for review of the Board's actions pursuant to section 1-40-107(2), C.R.S. (2021).
¶7 We begin with the standard of review. Then, we discuss the single-subject requirement for initiatives and analyze whether the Initiatives violate that requirement. Concluding that they do, and therefore that the Board lacked jurisdiction to set title, we reverse the Board's actions.
¶8 When a proposed initiative comprises multiple subjects, the Board lacks jurisdiction to set its title. See Colo. Const. art. V, § 1(5.5) (); § 1-40-106.5 (). "We liberally construe the [single-subject] requirement both because of the Title Board's considerable discretion in setting the title and the ballot title and submission clause and in order to avoid unduly restricting the initiative process." In re Title, Ballot Title & Submission Clause for 2021-2022 #16, 2021 CO 55, ¶ 8, 489 P.3d 1217, 1220 (quoting In re Title, Ballot Title & Submission Clause for 2019-2020 #315, 2020 CO 61, ¶ 17, 500 P.3d 363, 367).
¶9 We therefore overturn the Board's determination of a single subject only in a "clear case," In re 2019-2020 #315, ¶ 17, 500 P.3d at 367 (quoting In re Title, Ballot Title, & Submission Clause for 2013-2014 #76, 2014 CO 52, ¶ 8, 333 P.3d 76, 79)- giving "all legitimate presumptions in favor of the propriety of the Board's actions," In re 2021-2022 #16, ¶ 9, 489 P.3d at 1220 (quoting In re Title, Ballot Title & Submission Clause for 2009-2010 #91, 235 P.3d 1071, 1076 (Colo. 2010)). However, our deference here is not absolute; we have an obligation to "examine the initiative's wording to determine whether it comports with the constitutional requirements," In re 2019-2020 #315, ¶ 8, 500 P.3d at 366, and we have found clear violations of the single-subject requirement on review on multiple occasions, see, e.g., In re 2021-2022 #16, ¶ 42, 489 P.3d at 1225 (); In re Title, Ballot Title & Submission Clause for 2015-2016 #132, 2016 CO 55, ¶ 36, 374 P.3d 460, 469 (); In re Title, Ballot Title & Submission Clause, & Summary for 1997-1998 #84, 961 P.2d 456, 461 (Colo. 1998) (concluding that two initiatives aimed at lowering certain state and local taxes "contain[ed] multiple subjects and thus violate[d] the [single-subject] requirement"); In re Title, Ballot Title & Submission Clause, Summary for 1997-1998 #64, 960 P.2d 1192, 1198 (Colo. 1998) ().
¶10 In conducting our limited review of the Title Board's actions, we use general rules of statutory construction, "giving words and phrases their plain and ordinary meanings." In re 2021-2022 #16, ¶ 10, 489 P.3d at 1220 (quoting In re 2019-2020 #315, ¶ 8, 500 P.3d at 366). We do not consider the merits of the proposed initiatives nor their validity or efficacy if approved by voters and enacted. Id.
¶11 Article V of the Colorado Constitution reserves the power of initiative to the people, § 1(2), but prohibits an initiative from "containing more than one subject," § 1(5.5). If an initiative contains multiple subjects, then "no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls." Id.; see also § 1-40-106.5 ().
¶12 The single-subject requirement exists "to prevent or inhibit various inappropriate or misleading practices that might otherwise occur." § 1-40-106.5(1)(d). Specifically, it is designed to prevent "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," § 1-40-106.5(1)(e)(I), and to "prevent surprise and fraud from being practiced upon voters" by ensuring that the title of the measure "apprise the people of the subject," § 1-40-106.5(1)(e)(II).
¶13 To meet the single-subject requirement, we have previously explained that an initiative's provisions must be "necessarily and properly connected," In re 2021-2022 #16, ¶ 13, 489 P.3d at 1221 (quoting In re 2019-2020 #315, ¶ 13, 500 P.3d at 367); that is, "relat[ing] directly to its single subject," id. at ¶ 14, 489 P.3d at 1221 (quoting In re 2009-2010 #91, 235 P.3d at 1076), and "tend[ing] to effect or to carry out one general objective or purpose," id. (quoting In re Title, Ballot Title & Submission Clause for 2017-2018 #4, 2017 CO 57, ¶ 8, 395 P.3d 318, 321). An initiative with provisions that are "disconnected or incongruous," id. at ¶ 13, 489 P.3d at 1221 (quoting In re 2019-2020 #315, ¶ 13, 500 P.3d at 367)-covering "more than one subject and [having] at least two distinct and separate purposes which are not dependent upon or connected with each other," id. (quoting In re Title, Ballot Title & Submission Clause for 2005-2006 #74, 136 P.3d 237, 239 (Colo. 2006))-violates this requirement.
¶14 We have recognized that "[m]ere implementation or enforcement details directly tied to the initiative's single subject will not, in and of themselves, constitute a separate subject." In re 2005-2006 #74, 136 P.3d at 239. However, attempting to "characterize an initiative under some general theme will not save [it] from violating the single-subject rule if the initiative contains multiple subjects." In re 2019-2020 #315, ¶ 16, 500 P.3d at 367 (quoting In re 2009-2010 #91, 235 P.3d at 1076).
¶15 We also consider the purposes of the single-subject requirement when assessing whether an initiative's provisions are necessarily and properly connected. See In re 2021-2022 #16, ¶ 16, 489 P.3d at 1221 ( that this analysis includes the "anti-logrolling and anti-fraud purposes of the single-subject requirement"). First, the single-subject requirement prompts us to ask...
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Summaries of Published Opinions
...of Appeals' judgment on whether courts should apply a "strong presumption" and remanded the case to the trial court for further findings. 2022 CO 37. Nos. 22SA101,22SA142,22SA155. In the Matter of the Titles, Ballot Titles, and Submission Clauses for Proposed Initiatives 2021-2022 #67, #115......