IN RE BALLOT TITLE 2001-02 NO. 43

• Decision Date: 08 April 2002
• Docket Number: No. 02SA52, No. 02SA50, No. 02SA71.
• Parties: In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR PROPOSED INITIATIVE 2001-02 # 43. George Jones; and Mark G. Grueskin, Registered Elector of the State of Colorado, Petitioners, v. Dennis Polhill and Douglas Campbell, Proponents, Respondents, and William Hobbs, Alan J. Gilbert, and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause for Proposed Initiative 2001-02 # 45. Dennis Polhill and Douglas Campbell, Proponents, Petitioners, v. William Hobbs, Alan J. Gilbert, and Charles W. Pike, Respondents and Title Board.
• Court: Colorado Supreme Court

46 P.3d 438

In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR PROPOSED INITIATIVE 2001-.

George Jones; and Mark G. Grueskin, Registered Elector of the State of Colorado, Petitioners, v. Dennis Polhill and Douglas Campbell, Proponents, Respondents, and William Hobbs, Alan J. Gilbert, and Charles W. Pike, Title Board.

In the Matter of the Title, Ballot Title and Submission Clause for Proposed Initiative 2001-.

Dennis Polhill and Douglas Campbell, Proponents, Petitioners, v. William Hobbs, Alan J. Gilbert, and Charles W. Pike, Respondents and Title Board.

Nos. 02SA50, 02SA52, 02SA71.

Supreme Court of Colorado, En Banc.

April 8, 2002.

George Jones, pro se, Arvada, CO, Petitioner in Case No. 02SA50.

Isaacson, Rosebaum, Woods & Levy, P.c., Mark G. Grueskin, Denver, CO, Attorneys for Petitioner in Case No. 02SA52.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney general, Public Officials, State Services Section, Denver, CO, Attorneys for Title Board.

Dennis Polhill, pro se, Douglas Campbell, pro se, Arvada, CO.

Justice RICE delivered the Opinion of the Court.

In Case No. 02SA50 and Case No. 02SA52, Petitioners, George R. Jones and Mark G. Grueskin, brought original proceedings pursuant to section 1-40-107(2), 1 C.R.S. (2001), to challenge the action of the Ballot Title Setting Board ("Title Board") in setting the title and ballot title and submission clause ("titles") for proposed Initiative 2001-2002 # 43 ("# 43").¹ Petitioners contend that the Title Board lacked jurisdiction to set the titles because # 43 contains multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, 1 C.R.S. (2001). In the alternative, Petitioners argue that the title and submission clause do not comply with section 1-40-106(3)(b), 1 C.R.S. (2001), because they are unclear and do not fairly express the true meaning and intent of # 43. We will refer to Mr. Grueskin and Mr. Jones as the objectors.

In Case No. 02SA71, Petitioners, Douglas Campbell and Dennis Polhill, brought an original proceeding pursuant to section 1-40-107(2) to challenge the action of the Title Board in refusing to set the titles for proposed Initiative 2001-2002 # 45 ("# 45").² The Title Board concluded that it lacked jurisdiction to set titles for # 45 because it contains multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5. Petitioners claim that # 45 contains only one subject. We will refer to Mr. Campbell and Mr. Polhill as the proponents.

Mr. Campbell and Mr. Polhill are the proponents of both # 43 and # 45. Both # 43 and # 45 would add a new section, entitled "Petitions," to article VII of the Colorado Constitution. These initiatives are virtually identical; we therefore consolidate these cases for review in this court.

We conclude that both # 43 and # 45 contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. Accordingly, in # 43, we reverse the action of the Title Board and remand this matter to it with directions to strike the titles and return the initiative to the proponents. Because we conclude that # 43 contains multiple subjects, we do not consider whether the titles set by the Title Board conform to the requirements of section 1-40-106(3), 1 C.R.S. (2001). In re Proposed Initiative for 1997-98 # 64, 960 P.2d 1192, 1196 (Colo.1998) ("Because we conclude that the Initiative contains multiple subjects, we do not address the argument that the titles and summary are misleading."); see also, In re Proposed Initiative for 1997-98 # 84, 961 P.2d 456, 458 (Colo.1998); In re Proposed Initiative Amend TABOR 25, 900 P.2d 121, 123 (Colo.1995). In # 45, we affirm the action of the Title Board in refusing to set the titles.

I.

For over one hundred years, the single subject requirement has been applied to bills introduced in the General Assembly. The rule appeared in our state's first constitution and is still there today: "No bill, except general appropriations bills, shall be passed containing more than one subject." Colo. Const. article V, § 21. Our exposition of this rule in three turn of the century cases remains as applicable today as it was then. The single-subject requirement, we explained, prohibits a single legislative act from addressing "disconnected and incongruous measures," In re Breene, 14 Colo. 401, 404, 24 P. 3, 3 (1890) that have no "necessary or proper connection." Catron v. Bd. of County Comm'rs, 18 Colo. 553, 557, 33 P. 513, 514 (1893). This limitation serves to ensure that each legislative proposal depends upon its own merits for passage and protects against fraud and surprise occasioned by the inadvertent passage of a surreptitious provision "coiled up in the folds" of a complex bill. In re Breene, 14 Colo. at 404, 24 P. at 4. A bill comprises multiple subjects if it has "at least two distinct purposes which are not dependent upon or connected with each other." People ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903).

Notwithstanding its venerable history in the halls of the General Assembly, it was not until 1994 that the single-subject requirement and its attendant jurisprudence were imported into the initiative process. In that year, the people of the State of Colorado approved Referendum A on the 1994 general election ballot. As a result, article V, section 1(5.5) was added to our constitution. It provides in relevant part:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title.... 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.

Colo. Const. art. V, § 1(5.5). Contingent upon the passage of this constitutional amendment, the General Assembly enacted legislation explaining the rationale for extending the single-subject requirement to initiated and referred measures. See § 1-40-106.5. Section 1-40-106.5 makes clear that cases interpreting the single-subject requirement in the context of legislative bills control the interpretation of the single-subject requirement in the context of initiatives and referendums:

(d) The Colorado supreme court has held that the constitutional single-subject requirement for bills was designed to prevent or inhibit various inappropriate or misleading practices that might otherwise occur, and the intent of the general assembly in referring to the people section 1(5.5) of article V . . . was to protect initiated measures ... from similar practices;

(e) The practices intended by the general assembly to be inhibited by section 1(5.5) of article V ... are as follows:

(I) To 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 support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits;

(II) To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.

(2) It is the intent of the general assembly that section 1(5.5) of article V ... be liberally construed, so as to avert the practices against which they are aimed and, at the same time, to preserve and protect the right of initiative and referendum.

(3) It is further the intent of the general assembly that, in setting titles pursuant to section 1(5.5) of article V, the initiative title setting review board created in section 1-40-106 should apply judicial decisions construing the constitutional single-subject requirement for bills and should follow the same rules employed by the general assembly in considering titles for bills.

§ 1-40-106.5.

Since 1995, "[m]indful of the legislative history which requires us to evaluate the single-subject ... mandate in initiatives in the same way that we evaluate single subjects... in bills," we have relied upon the standards established in Sours, Catron, and Breene to determine whether proposed initiatives contain multiple subjects in violation of article V, section 1(5.5). In re Proposed Initiative for 1999-2000 # 25, 974 P.2d 458, 464 (Colo.1999). For instance, in In re Proposed Initiative on "Public Rights in Water II", 898 P.2d 1076 (Colo.1995), our first opportunity to interpret the new constitutional amendment, we relied heavily on the amendment itself, its explanatory legislation, and cases construing the single-subject requirement for bills. 898 P.2d at 1078-79. Accordingly, we summarized the purpose of the constitutional amendment as forbidding the joining of "incongruous subjects in the same measure" thereby ensuring that "each proposal depends on its own merits for passage." Id. at 1078 (internal quotation marks omitted). We explained that by preventing a single initiative from containing multiple subjects, article V, section 1(5.5) "would prevent proponents from engaging in `log rolling' or `Christmas tree' tactics" in which proponents attempt to garner support for their initiative from "various factions which may have different or even conflicting interests." Id. at 1079. We used the Sours test to determine whether the initiative ran afoul of the new amendment: "In order to constitute more than one subject . . ., the text of the measure must relate to more than one subject and it must have at least two distinct and separate purposes which are not dependent upon or connected with each other." Id. at 1078-79; accord In re Proposed Initiative for 1999-2000 # 104, 987 P.2d 249, 253 (Colo.1999); In re Proposed Initiative for 1997-98 # 30, 959 P.2d 822, 825 (Colo.1998); In re Amend TABOR 25, 900 P.2d at 125. We...