In re Title, Ballot Title & Sub. Clause

• Decision Date: 30 May 2006
• Docket Number: No. 06SA41.,06SA41.
• Citation: 136 P.3d 237
• Parties: In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2005-2006 # 74, Beverly Ausfahl and Nicole Kemp, objectors, Petitioners, v. Jon Caldara and Dennis Polhill, proponents, Respondents, and William A. Hobbs, Allison Eid, and Sharon L. Eubanks, Title Board.
• Court: Colorado Supreme Court

Page 237

136 P.3d 237

In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2005-2006 # 74,

Beverly Ausfahl and Nicole Kemp, objectors, Petitioners, v. Jon Caldara and Dennis Polhill, proponents, Respondents, and William A. Hobbs, Allison Eid, and Sharon L. Eubanks, Title Board.

No. 06SA41.

Supreme Court of Colorado.

May 30, 2006.

Isaacson Rosenbaum, P.C., Edward T. Ramey, Denver, for Petitioners.

No appearance on behalf of Jon Caldara and Dennis Polhill, Proponents.

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

RICE, Justice.

Petitioners Beverly Ausfahl and Nicole Kemp (Petitioners) brought this original proceeding under section 1-40-107(2), C.R.S. (2005), to review the action of the Title Board (Board) in fixing a title and a ballot title and submission clause for a ballot initiative (Initiative # 74) for the 2006 general election. Petitioners contend that Initiative # 74 addresses multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. We hold that the proposed initiative contains more than one subject in violation of the Colorado Constitution, and therefore the Title Board should have refused to fix the titles. Accordingly, we reverse the Title Board's action.

I. Facts

Initiative # 74 imposes expiration dates upon all of the governmental actions for which voter approval is required under article X, section 20 of the Colorado Constitution (Amendment 1)¹. Specifically, any ballot issue that must adhere to Amendment 1 must sunset, expire, and end within ten years of its passage. In addition, any such ballot issue may be renewed only once by a vote of the people, but not for longer than a period of ten years. As noted in the Initiative, the "preferred interpretation shall prevent one generation's decision to increase tax or debt from burdening future generations without future generations direct voting consent."

The Title Board conducted its initial public meeting and set a title, ballot title, and submission clause for the proposed initiative. Petitioners filed a Motion for Rehearing, objecting that the proposed initiative contained multiple subjects. The Motion for Rehearing was heard at the next regularly scheduled meeting of the Title Board. At the rehearing, the Title Board overruled Petitioners' objection. Petitioners then sought review in this court.

II. Law

A. The "Single-Subject" Provision

This case involves the application of the single-subject limitation to initiatives.² Despite our limited role,³ we have been asked on numerous occasions to determine whether or not a proposed initiative contains a single subject. To this end, we have developed principles by which we review the decisions of the Title Board,⁴ with whom the responsibility resides to initially review all proposed initiatives.⁵ Primary among these principles is the axiomatic concept that, in order to pass constitutional muster, a proposed initiative must concern only one subject—that is to say it must effect or carry out only one general object or purpose.⁶

To evaluate whether or not an initiative effectuates or carries out only one general object or purpose, we look first to the text of the proposed initiative. The single-subject requirement is not violated if the "matters encompassed are necessarily or properly connected to each other rather than disconnected or incongruous." In re Amend Tabor 25, 900 P.2d 121, 125 (Colo.1995); see In re "Public Rights in Waters II", 898 P.2d 1076, 1078-79 (Colo.1995). Said another way, the single-subject requirement is not violated unless the text of the measure "relates to more than one subject and has at least two distinct and separate purposes which are not dependent upon or connected with each other." In re Petition Procedures, 900 P.2d 104, 109 (Colo.1995); see People v. Sours, 31 Colo. 369, 405, 74 P. 167, 178 (1903).

Mere implementation or enforcement details directly tied to the initiative's single subject will not, in and of themselves, constitute a separate subject.⁷ Finally, in order to pass the Single-subject test, the subject of the initiative should be capable of being clearly expressed in the initiative's title.⁸

B. Review of Prior "Amendment 1" Initiatives

We must decide whether Initiative # 74 contains multiple subjects consistently with our prior case law. To this end, we first review our cases concerning Amendment 1.

We start our analysis with In re Amend Tabor 25, 900 P.2d 121 (Colo.1995). In this case, the proponents of the initiative sought to add a new subsection to Amendment 1. In re Amend Tabor 25, 900 P.2d at 121-23. The Initiative proposed to establish a tax credit and set forth several procedural requirements for future ballot titles. Id. The proponents of the Initiative claimed that the proposed measure comprised a single subject, "government revenue changes." Id. at 125. We held that, "because the proposed $40 tax credit is not `dependent upon or connected' to procedures for adopting future initiatives, we find the very evils that the electorate determined must be avoided by adoption of article V, section 1(5.5) are present here." Id.

Shortly thereafter, we again considered an attempt to amend Amendment 1 by petition. In re Amend Tabor # 32, 908 P.2d 125 (Colo. 1995). This proposed initiative sought to establish a tax credit that would apply to six state or local taxes and would require the state to replace local revenues that were lost because of the tax credit provision. Id. at 129. The petitioners contended that the initiative violated the constitutional single-subject requirement because it applied the tax credit to more than one tax and also required the state to replace monthly local government revenues. Id. at 128-29. We disagreed and held:

Although the Initiative applies the tax credit to more than one tax, the single purpose of the Initiative is the implementation of a tax credit. All six taxes are connected to the same tax credit and are bound by the same limitations. The provision of the Initiative requiring mandatory replacement of lost local government revenues is dependent upon and closely connected to the $60 tax credit. The Initiative relates to a single definite object or purpose and does not impermissibly encompass multiple unrelated subjects.

Id. at 129.

We next considered In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo.1996). This initiative sought to repeal certain portions of Amendment 1 related to spending and revenue limits, elections, local responsibility for state mandated programs, and emergency reserves, and to reenact certain portions of the Amendment. In re Proposed Initiative 1996-4, 916 P.2d at 533. The proponents contended that each repealed subsection addressed the single subject of "limiting government spending." Id. We held, however, that the initiative contained multiple subjects disconnected from any encompassing principle because the initiative covered subjects ranging from the property valuation administrative process to elections to emergency taxes. Id. "`Limiting government spending' is too broad and general a concept to satisfy the single subject requirement, just as `water' was not a single subject in In re Public Rights in Waters II." Id. (citing In re Public Rights in Waters II, 898 P.2d at 1080).

During the next election cycle, we were again asked to consider proposed changes to Amendment 1. In re 1997-98 # 30, 959 P.2d 822 (Colo.1998). Initiative # 30 sought to change Amendment 1 by creating an annually increasing reduction in tax revenue upon which municipalities, school districts, and various special districts depend to fund local programs. Id. at 823. Revenues affected would have included those from utility customer and franchise charges, vehicle ownership taxes, and property taxes that fund human and health services, district attorney and assessors offices, libraries, courts, schools, economic development, enterprises, and authorities. Id. The shortfall in local programs caused by the tax cuts would have been funded by the transfer of state revenues to local governments. Id.

In addition, Initiative # 30 proposed to add new criteria to Amendment 1 by providing that voter-approved revenue and spending increases enacted since 1992 were to specify a maximum tax rate with a fixed maximum number of dollars in the ballot title of those measures. Id. at 824.

The Board contended that the initiative had a single subject, "tax cuts." Id. at 826. We disagreed. We held that, although a tax cut was one of the purposes of the initiative, the initiative also proposed to subject voter-approved local revenue and spending increases enacted since 1992 to a new Amendment 1 requirement—that a fixed tax rate/maximum dollar amount must be stated in the ballot title of those measures. Id. Thus, we concluded that, because the initiative contained two subject matters, a tax cut and new criteria for voter approval of revenue and spending increases under Amendment 1, the proposed initiative violated the single-subject limitation. Id. at 827.

Shortly thereafter, we considered two more proposed initiatives which were somewhat similar to the initiative discussed in In re 1997-98 # 30. See In re Proposed Initiative for 1997-98 # 84, 961 P.2d 456 (Colo. 1998). These initiatives sought to change Amendment 1 by lowering various state and local taxes and requiring the state to replace affected local revenue loss. Id. at 457. Under the proposed changes, the state's revenue replacement obligation was subject to all tax and spending limits. Id.

Like with Initiative # 30, the Title Board argued that the only subject encompassed in these initiatives was "tax cuts." Id. at 459. We disagreed again, however, because the initiatives required the state to dedicate a portion of the state's current revenues to replace lost local revenue, which would have the effect of lowering the...