IN RE BALLOT TITLE 1999-00 NO. 256

• Decision Date: 23 October 2000
• Docket Number: No. 00SA177, No. 00SA179., No. 00SA178, No. 00SA175
• Citation: 12 P.3d 246
• Parties: In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR 1999-00 # 256, Jerry G. Percy, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-00 # 256, Ray Christensen, Brad Anderson and Kent Lebsack, Petitioners, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-00 # 256, Robert A. Lembke, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-00 # 256, Rodman Stewart, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board.
• Court: Colorado Supreme Court

12 P.3d 246

In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR 1999-,

Jerry G. Percy, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board.

In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-,

Ray Christensen, Brad Anderson and Kent Lebsack, Petitioners, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board.

In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-,

Robert A. Lembke, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board.

In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-,

Rodman Stewart, Petitioner, v. John Fielder and Elise Jones, Respondents, and William Hobbs, Alan J. Gilbert and Charles W. Pike, Title Board.

Nos. 00SA175, 00SA177, 00SA178, 00SA179.

Supreme Court of Colorado, En Banc.

October 23, 2000.

Isaacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Blain D. Myhre, Denver, CO, Attorneys for Petitioner in No. 00SA175.

Bill Myers, P.C., Bill Myers, Kelly, Haglund, Garnsey & Kahn, LLC, Edwin S. Kahn, Denver, CO, Claire B. Levy, LLC, Claire B. Levy, Boulder, CO, Attorneys for Respondents in Nos. 00SA175, 00SA177, 00SA178, 00SA179.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, CO, Attorneys for Title Board in Nos. 00SA175, 00SA177, 00SA178, 00SA179.

Fairfield and Woods, P.C., Stephen H. Leonhardt, John L. Palmquist, Bernard F. Gehris, Denver, CO, Attorneys for Petitioners in No. 00SA177.

Kerr, Friedrich, Brosseau, Bartlett, LLC, John O'Brien, Denver, CO, Co-counsel for Petitioner Brad Anderson in No. 00SA177.

Grimshaw & Harring, A Professional Corporation, Richard L. Harring, Norman F. Kron, Joan M. Fritsche, Denver, CO, Attorneys for Petitioner in No. 00SA178.

Ireland, Stapleton, Pryor & Pascoe, P.C., Christopher G. Hayes, Denver, CO, Attorneys for Petitioners in No. 00SA179.

PER CURIAM.

We consolidated these four ballot title review proceedings concerning a proposed initiative titled "Citizen Management of Growth."

The petitioners are registered electors who brought these proceedings pursuant to section 1-40-107(2), 1 C.R.S. (1999), to review the actions taken by the initiative title setting board (the Board) in fixing the title, ballot title and submission clause (titles), and summary (collectively, titles and summary)¹ for Initiative 1999-00 # 256 (the Initiative).²

On April 21, 2000, the proponents, John Fielder and Elise Jones, filed a draft of the Initiative with the Secretary of State's Office. If adopted, the Initiative would add a new article XXVIII to the Colorado Constitution, entitled "Citizen Management of Growth." The measure generally provides that, unless otherwise excepted, local governments may approve development only: (1) within areas committed to development, as defined in the proposal; or (2) within future growth areas defined by voter-approved growth area maps. Local government has the responsibility to: (1) delineate the areas committed to development; and (2) prepare and submit to the voters on specified election dates a growth area map, the content of which is defined in the proposal.

The Initiative was set on the Board's agenda for hearing on May 3, 2000. On that date, the Board set the Initiative's titles and summary. On May 10, all of the petitioners filed motions for rehearing. The Board heard the motions on May 17, 2000, and granted them in part and denied them in part.

These four review proceedings raise both procedural and substantive issues. The issues can be grouped in three main categories: a procedural issue relating to the Board's jurisdiction to set the titles and summary; whether the Initiative contains a single subject; and whether the titles and summary reflect the true intent of the Initiative or whether they are misleading. We conclude that the Board had jurisdiction to set the titles; the Initiative contains only a single subject; and that the titles and summary are not misleading. On July 3, 2000, we announced that the action of the Board was affirmed, with an opinion to follow. This is that opinion.

I. THE JURISDICTIONAL ISSUE

The petitioner in No. 00SA175, Jerry G. Percy, claims that the Board did not have jurisdiction to set the titles and summary because of four amendments the proponents made to the Initiative before submitting it to the secretary of state. Article V, section 1(5) of the Colorado Constitution states:

(5) The original draft of the text of proposed initiated constitutional amendments and initiated laws shall be submitted to the legislative research and drafting offices of the general assembly for review and comment. No later than two weeks after submission of the original draft, unless withdrawn by the proponents, the legislative research and drafting offices of the general assembly shall render their comments to the proponents of the proposed measure at a meeting open to the public, which shall be held only after full and timely notice to the public. Such meeting shall be held prior to the fixing of a ballot title. Neither the general assembly nor its committees or agencies shall have any power to require the amendment, modification, or other alteration of the text of any such proposed measure or to establish deadlines for the submission of the original draft of the text of any proposed measure.

Section 1-40-105, 1 C.R.S. (1999), specifies the procedures that the proponents and the directors must follow:

(1) The original typewritten draft of every initiative petition for a proposed law or amendment to the state constitution to be enacted by the people, before it is signed by any elector, shall be submitted by the proponents of the petition to the directors of the legislative council and the office of legislative legal services for review and comment.... No later than two weeks after the date of submission of the original draft ... the proponents, the directors of the legislative council and the office of legislative legal services, or their designees, shall render their comments to the proponents of the petition concerning the format or contents of the petition at a meeting open to the public. Where appropriate, such comments shall also contain suggested editorial changes to promote compliance with the plain language provisions of this section....

(2) After the public meeting but before submission to the secretary of state for title setting, the proponents may amend the petition in response to some or all of the comments of the directors of the legislative council and the office of legislative legal services, or their designees. If any substantial amendment is made to the petition, other than an amendment in direct response to the comments of the directors of the legislative council and the office of legislative legal services, the amended petition shall be resubmitted to the directors for comment in accordance with subsection (1) of this section prior to submittal to the secretary of state as provided in subsection (4) of this section.

(Emphasis added.) The requirement that the original draft be submitted to the legislative council and office of legislative legal services permits the proponents to benefit from the experience of experts in constitutional and legislative drafting, and allows the public to understand the implications of a proposed initiative at an early stage in the process. See In re Proposed Initiated Constitutional Amend. Concerning Limited Gaming in the Town of Idaho Springs, 830 P.2d 963, 966 (Colo.1992).

According to Percy, following the public meeting before the directors of the legislative council and the office of legislative legal services (the directors), see Colo. Const. art. V, § 1(5); § 1-40-105(1), the proponents made four substantial changes to the Initiative that were not in direct response to comments made by the directors, see § 1-40-105(2). After making the changes, the proponents did not resubmit the Initiative to the directors for comment before submitting the Initiative to the secretary of state. See § 1-40-105(2). Percy asserts that because the proponents did not resubmit the Initiative to the directors, the Board did not have jurisdiction to set the titles and summary. See In re Limited Gaming, 830 P.2d at 966-68; In re Proposed Initiative Under the Designation "Tax Reform", 797 P.2d 1283, 1288 (Colo.1990).

The proponents and the Board respond that the changes to the Initiative were made either in direct response to the directors' comments, or were not substantial, and thus section 1-40-105(2) did not require the amended petition to be resubmitted to the directors.

Percy contends that the addition of the following amendments to the original version of the Initiative required resubmission of the amended version to the directors:

(1) Section 4(5)(c) of the original version contained three criteria that growth area maps:

(c) Shall be consistent with growth proposed by other Local Governments, in that Growth Area Maps (1) shall be developed in cooperation with the government of each county in which the proposed Growth Area is located and any other Local Government that shares a common boundary with the proposed Growth Area; (2) shall not conflict with or overlap the Growth Area Map that another Local Government is proposing for approval at the same election or which has been previously approved by the voters of another Local Government; and (3) shall be consistent with any area for future growth (i) approved by any Regional Planning Commission, Metropolitan Planning Organization, or council of governments with the participation of the proposing Local Government or (ii) created by intergovernmental agreement to which the proposing Local Government is a party.

(Emphasis...