In re Title and Ballot Title and Submission

• Decision Date: 12 June 2006
• Docket Number: No. 06SA20.,06SA20.
• Citation: 138 P.3d 273
• Parties: In the Matter of the TITLE AND BALLOT TITLE AND SUBMISSION CLAUSE FOR 2005-2006 #55, Manolo Ganzales-Estay, objector, Petitioner v. Richard D. Lamm, Waldo Benavidez & Fred Elbel, proponents, and William A. Hobbs, Allison Eid, and Dan Cartin, Title Board, Respondents.
• Court: Colorado Supreme Court

138 P.3d 273

In the Matter of the TITLE AND BALLOT TITLE AND SUBMISSION CLAUSE FOR 2005-2006 #55 Manolo Ganzales-Estay, objector, Petitioner v. Richard D. Lamm, Waldo Benavidez & Fred Elbel, proponents, and William A. Hobbs, Allison Eid, and Dan Cartin, Title Board, Respondents.

No. 06SA20.

Supreme Court of Colorado, En Banc.

June 12, 2006.

As Modified on Denial of Rehearing June 26, 2006.^*

Isaacson Rosenbaum P.C., Mark G. Grueskin, Kara Veitch, Denver, CO, Attorneys for Petitioner Manolo Ganzales-Estay.

Richard D. Lamm, Denver, CO, pro se.

Robert M. Hardaway, University of Denver Sturm College of Law Denver, CO, Attorney for Proponents Richard D. Lamm, Waldo Benavidez and Fred Elbel.

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General State Services Section, Public Officials Unit, Denver, CO, Attorneys for Title Board.

Justice MARTINEZ delivered the Opinion of the Court.

Petitioner, Manolo Ganzalez-Estay, brought this original proceeding under section 1-40-107(2), C.R.S. (2005), to challenge the action of the initiative title setting board (the "Board") setting the title and ballot title and submission clause ("titles") for a proposed ballot initiative ("Initiative #55" or "Initiative"). Initiative #55 prohibits the State of Colorado, as well as all cities, counties, and political subdivisions thereof, from providing any non-emergency services to persons who are not otherwise lawfully present in the United States. Petitioner argues the Board lacked jurisdiction to set the title for Initiative #55 on the basis that it violates article V, section 1(5.5) of the Colorado Constitution because it contains multiple subjects and amends or repeals unrelated provisions of the constitution.

We agree that Initiative #55 contains multiple subjects connected only by the broad theme of restricting non-emergency services. The concept of a single subject at first glance appears straightforward. However, an initiative may be offered as a single subject by stating the subject in broad terms. If an initiative states vague terms, then it may appear to present a single subject. But when the details necessary to understand the subject are considered, the initiative may involve separate subjects. To avoid subjective decision-making in this arena, we have developed an analysis to determine whether an initiative contains unrelated subjects contained within an overarching theme. Our case law requires us to examine an initiative to determine its purposes and whether they are related to the central theme of an initiative.

Applying this well-established analysis, we observe that the initiative contains at least two subjects: decreasing taxpayer expenditures on behalf of people not lawfully present- in Colorado by terminating services benefiting the welfare of individuals and restricting unrelated administrative services. Accordingly, we reverse the action of the Board and remand this matter to it with directions to strike the title and return Initiative #55 to its proponents.

I. Facts and Proceedings

In 2004, a prior version of Initiative #55 was presented to the Board. The measure, known as Initiative 2003-2004 #88 ("Initiative #88"), proposed to amend article V of the Colorado Constitution by adding section 51, "Restrictions on Non-Emergency Services." Section 51 provided that Colorado's provision of "non-emergency services" would be restricted to lawfully present citizens and aliens:

(1) Except as mandated by federal law, the provision of non-emergency services by the State of Colorado or any city, county or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

(2) Any person lawfully residing in the State of Colorado shall have standing to sue the State of Colorado or any county, city or other political subdivision of the State of Colorado to enforce this section.

(a) Courts of record of the State of Colorado shall have jurisdiction to hear cases brought to enforce this section.

The General Assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section.

(3) The General Assembly shall have the authority to implement this section by definitions and other appropriate legislation.

(Emphasis added.) Initiative #88 was approved as to single subject matter by the Board.

Petitioner and Ramon Del Castillo filed a motion for rehearing. They argued both that Initiative #88 contained multiple subjects and the title did not accurately reflect the content of the measure. The Board denied the motion.

To this court, Petitioner and Castillo argued only that the title "is misleading, does not correctly and fairly express the true meaning of the initiative, does not unambiguously state the principle of the provision to be added to the Constitution, and will lead to voter confusion...." Petitioner and Castillo did not argue the initiative contained multiple subjects contrary to Colorado Constitution article V, section 1(5.5). We affirmed the action of the Board without opinion. In the Matter of the Title, Ballot Title & Submission Clause for 2003-04 #88 (No. 04SA95, May 6, 2004).

Sufficient signatures were not obtained to meet the deadline for the 2004 November election. On December 21, 2005, William G. Herron and Janice Herron submitted Initiative #55, entitled "Restrictions on Non-Emergency Services," to the Board for inclusion on the 2006 ballot. Initiative #55 repeated, with minor changes, the provisions of Initiative #88. At the January 4, 2006, Board hearing, Richard D. Lamm, Waldo Benavidez and Fred Elbel ("Proponents") were designated as the proponents. The Board set the title, Petitioner sought reconsideration before the Board, and the Board denied Petitioner's motion. Petitioner filed a Petition for Review before this court and argues Initiative #55 violates the single subject requirement.

The text of Initiative #55 is attached hereto as APPENDIX A. The text of the title and ballot title and submission clause as prepared by the Board are attached hereto as APPENDIX B.

II. Claim Preclusion and Law of the Case

The Proponents contend this court is barred from reviewing the Board's actions because both the doctrine of the "law of the case" and claim preclusion prohibit our reconsideration of the same issues already finally adjudicated by this court In re 2003-04 #88, including the issue of whether the Proposed Initiative sets forth a "single subject" in compliance with Colorado Constitution article V, section 1(5.5). The Board argues this appeal is barred by claim preclusion. We reject these arguments.

Initially, we note that In re 2003-04 #88 was not selected for publication and therefore has no value as precedent. See C.A.R. 35(f); Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 999 (Colo.2003). In addition, the principles of claim preclusion and law of the case are inapplicable under this special statutory proceeding. The Board sets the title and submission clause at public meetings. Thereafter, any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board has a statutory right to file a motion with the secretary of state. § 1-40-107(1), C.R.S. (2005). Any registered elector who filed a motion for rehearing and is not satisfied with the Board's ruling may file an appeal with the Colorado Supreme Court and thus requires our review:

(2) If any person presenting an initiative petition for which a motion for a rehearing is filed, any registered elector who filed a motion for rehearing is not satisfied with the ruling of the title board upon the motion, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles and submission clause of the proposed law or constitutional amendment, together with a certified copy of ten motions for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within five days thereafter, the matter shall be disposed of promptly, consistent with the rights of the parties, either affirming the action of the title board or reversing it, in which latter case the court shall remand it with instructions, pointing out where the title board is in error.

§ 1-40-107(2), C.R.S. (2005).

The statute does not provide an exception for proposed ballot initiatives containing identical or nearly identical language. Consequently, statutory proceedings require the title board and this court to review initiatives even if containing language identical to a previous initiative. Applying claim preclusion or law of the case principles would circumvent this special statutory process and exempt Initiative #55 from the applicable standards. Hence, we do not apply claim preclusion or law of the case principles here and review Initiative #55 consistent with the statute.

III. Single Subject Requirement

Petitioner raises a single subject challenge to Initiative #55. We first review our previously established single subject analysis and emphasize that an initiative may neither hide purposes unrelated to its central theme nor group distinct purposes under a broad theme.

Turning to the Initiative itself, we determine that its claimed subject, restricting non-emergency services, is broad and intended to affect all government operations. Against this backdrop, we explore the purposes effected by restricting all non-emergency services not mandated by federal law and identify two distinct, unrelated purposes: reducing taxpayer expenditures by restricting the delivery of benefits in the nature of medical and social services to individuals lawfully present in Colorado and restricting other largely administrative services that do not primarily confer benefits to individuals. Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme.

A. ...