IN RE BALLOT TITLE 1999-2000 NO. 255, No. 00SA147
| Decision Date | 03 July 2000 |
| Docket Number | No. 00SA152, No. 00SA151, No. 00SA166., No. 00SA147 |
| Parties | In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR 1999-2000 # 255. William Bernard Herpin, Jr., Petitioner, v. John F. Head and Arnold Grossman, Respondents, and William Hobbs, Alan Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title And Submission Clause, and Summary for 1999-2000 # 255. Barry Wagoner, Petitioner, v. John F. Head and Arnold Grossman, Respondents, and William Hobbs, Alan Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-2000 # 255. Ari Armstrong and Debra Collins, Petitioners, v. John F. Head and Arnold Grossman, Respondents, and William Hobbs, Alan Gilbert and Charles W. Pike, Title Board. In the Matter of the Title, Ballot Title and Submission Clause, and Summary for 1999-2000 # 255. Aimee Rathburn, Petitioner, v. John F. Head and Arnold Grossman, Respondents, and William Hobbs, Alan Gilbert and Charles W. Pike, Title Board. |
| Court | Colorado Supreme Court |
James O. Bardwell, Denver, Colorado, Attorney for Petitioner in No. 00SA147.
Hall & Evans, L.L.C., Alan Epstein, Hugo Teufel, Denver, Colorado, Attorneys for Petitioner in No. 00SA151.
Barry K. Arrington, Arrington & Rouse, P.C., Denver, Colorado, Attorney for Petitioners in No. 00SA166.
Paul Grant, Englewood, Colorado, Attorney for Petitioners in No. 00SA152.
Issacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Edward T. Ramey, Denver, Colorado, Attorneys for Respondents.
Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Title Board.
We have consolidated four ballot title review proceedings that all relate to a proposed initiative concerning background checks at gun shows. The petitioners are registered electors who brought these original 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 1900-00 # 255 (the "Initiative").2
On March 24, 2000, the proponents of the Initiative, John F. Head and Arnold Grossman, filed a draft of the Initiative with the Secretary of State's Office. The Initiative proposed to add a new article 26.1 to title 12 of the Colorado Revised Statutes, consisting of sections 12-26.1-101 to -108. Proposed article 26.1 is entitled "Background Checks — Gun Shows." The Initiative was set on the Board's agenda for hearing on April 5, 2000. On April 5, over the objections of petitioners Barry Wagoner, Ari Armstrong, and Debra Collins, the Board set the Initiative's titles and summary. On April 10, the petitioner in No. 00SA147, William Bernard Herpin, filed a pro se motion for rehearing. Petitioner Wagoner (No. 00SA151), and petitioners Armstrong and Collins (No. 00SA152) filed motions for rehearing on April 12. The Board heard the motions for rehearing on April 19, 2000, and granted the motions in part and denied them in part. After the other petitioners had filed their petitions for review in this court, petitioner Aimee Rathburn (No. 00SA166) filed her motion for rehearing on April 26. The Board denied Rathburn's motion for rehearing on May 3, 2000, concluding that it did not have jurisdiction to hear the motion, but, in the alternative, if it did have jurisdiction, it denied the motion on the merits.
These four review proceedings raise numerous procedural and substantive issues. The issues can be grouped in four main categories: procedural issues relating to the Board's jurisdiction to set and amend the titles and summary; whether the Initiative contains a single subject; whether the titles and summary that the Board has set reflect the true intent of the Initiative or whether it is misleading; and whether the fiscal impact statement contained in the summary is adequate. We conclude that the Board had jurisdiction to set the titles and summary and to correct two clerical mistakes; the Initiative contains but a single subject; the titles and summary are not misleading; and the fiscal impact statement is adequate. The final issue is whether the Board had jurisdiction to consider Rathburn's motion for rehearing. We conclude that it did not.
Petitioner Wagoner and petitioners Armstrong and Collins assert that section 1-40-106(3)(a), 1 C.R.S. (1999), precluded the Board from setting the titles and summary at its April 5, 2000, meeting because the office of state planning and budgeting (OSPB) did not file its fiscal impact statement by noon on the Friday before the meeting. Wagoner asserts that the evidence at the hearing revealed that the OSPB submitted two versions of its report regarding fiscal information on Friday, March 31, after the noon deadline; one apparently at 12:05 p.m., and the other, a replacement report that corrected a calculation error in the previous version, at about 3:15 p.m. The petitioners claim that under the plain language of section 1-40-106(3)(a), the Board could not hold a hearing on the Initiative until its next meeting, Wednesday, April 19, 2000.
The petitioners therefore read the Friday noon deadline as jurisdictional. At all times relevant to this proceeding,3 section 1-40-106(3)(a), 1 C.R.S. (1999), provided:
(3)(a) The title board shall prepare a clear, concise summary of the proposed law or constitutional amendment. The summary shall be true and impartial and shall not be an argument, nor likely to create prejudice, either for or against the measure. The title board may request assistance in the preparation of the summary from the legislative council and, if, in the opinion of the title board, the proposed law or constitutional amendment will have a fiscal impact on the state or any of its political subdivisions, shall request assistance in such matter from the office of state planning and budgeting or the department of local affairs. When the title board requests fiscal impact information from the office of state planning and budgeting or the department of local affairs, the fiscal impact information shall be filed with the secretary of state by 12 noon on the Friday before the meeting of the title board at which the draft is to be considered. The legislative council, the office of state planning and budgeting, and the department of local affairs shall furnish any assistance requested, and the summary shall include an estimate of any such fiscal impact, together with an explanation thereof.
(emphasis added.) The petitioners also assert that former section 1-40-106(3)(a) must be read "in pari materia" with section 1-40-106(1), which contains similar filing deadline language. Section 1-40-106(1), 1 C.R.S. (1999) provides:
(1) For ballot issues, beginning with the first submission of a draft after an election, the secretary of state shall convene a title board consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services or the director's designee. The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause, at public meetings to be held at 2 p.m. on the first and third Wednesdays of each month in which a draft or a motion for reconsideration has been submitted to the secretary of state. To be considered at such meeting, a draft shall be submitted to the secretary of state no later than 3 p.m. on the twelfth day before the meeting at which the draft is to be considered by the title board. The first meeting of the title board shall be held no sooner than the first Wednesday in December after an election, and the last meeting shall be held no later than the third Wednesday in May in the year in which the measure is to be voted on.
(emphasis added.) Without citing any authority, Wagoner asserts that section 1-40-106(1) has been held to be jurisdictional. Cf. In re Proposed Initiated Constitutional Amend. Concerning The "Fair Treatment II", 877 P.2d 329, 333 (Colo.1994)
().
The respective deadlines contained in sections 1-40-106(1) and 1-40-106(3)(a) must be viewed in the context of the people's fundamental constitutional right of initiative. "The right of initiative and referendum, like the right to vote, is a fundamental right under the Colorado Constitution." Loonan v. Woodley, 882 P.2d 1380, 1383 (Colo.1994). We have held that the "constitutional and statutory provisions governing the initiative process should be liberally construed so that the constitutional right reserved to the people `may be facilitated and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right.'" Fabec v. Beck, 922 P.2d 330, 341 (Colo.1996) (quoting Loonan, 882 P.2d at 1384; some internal quotation marks omitted). Unlike the twelfth-day deadline contained in section 1-40-106(1), which is entirely within the power of the proponents themselves to meet, the noon Friday deadline is the responsibility of the staff of the OSPB and department of local affairs ("DOLA"). If section 1-40-106(3)(a) were considered jurisdictional, the staff of a government agency would have the power to delay progress on an initiative simply by retaining the requested fiscal information until a few minutes after noon on the Friday before the scheduled hearing. This would be inconsistent with...
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