IN RE TITLE, FOR 1999-2000 NO. 104, 99SA165.

• Decision Date: 01 November 1999
• Docket Number: No. 99SA165.,99SA165.
• Citation: 987 P.2d 249
• Parties: In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR 1999-2000 # 104, Bennett S. Aisenberg, Petitioner, v. Douglas Campbell and Mark Dorn, Respondents, and Donetta Davidson, Rebecca Lennahan, and Michael McLachlan, Title Board.
• Court: Colorado Supreme Court

987 P.2d 249

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

Bennett S. Aisenberg, Petitioner, v. Douglas Campbell and Mark Dorn, Respondents, and Donetta Davidson, Rebecca Lennahan, and Michael McLachlan, Title Board.

No. 99SA165.

Supreme Court of Colorado, En Banc.

November 1, 1999.

Susan E. Burch, Denver, Colorado, Attorney for Petitioner.

Douglas Campbell, Pro Se, Mark Dorn, Pro Se, Arvada, Colorado.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Title Board.

Justice RICE delivered the Opinion of the Court.

In this original proceeding brought pursuant to section 1-40-107(2), 1 C.R.S. (1999), Petitioner, Bennett S. Aisenberg, seeks review of the Initiative Title Setting Board's¹ ("Title Board" or "Board") May 5, 1999 action in fixing the title, ballot title and submission clause, and summary ("titles") for a proposed ballot initiative designated "1999-2000 # 104" ("the Initiative").² Initiative # 104 proposes to amend Article VI of the Colorado Constitution by adding a new Section 6 to this article,³ and to repeal several other provisions. Because we conclude that the Initiative contains more than one subject in violation of Article V, Section 1(5.5) of the Colorado Constitution, and that the titles set by the Board do not clearly and correctly express the subject of the proposal, we reverse the action of the Board.

I. FACTS

Initiative # 104 proposes extensive changes to matters concerning Colorado judicial personnel. First, the Initiative would institute new requirements regarding the nomination, appointment, removal, and retention of active county, district, court of appeals, and supreme court judges,⁴ and impose new limits on the duration of a judicial term of office and the number of terms a judicial officer may serve. In particular, the new Section 6 would effectuate several changes, including: (1) a provision imposing term limits upon judges by limiting them to a maximum term of four years and providing that no judge may serve more than three future terms at any given judicial level;⁵ (2) a provision stating that a future partial term of one year or more constitutes a full term; (3) a provision stating that the governor shall appoint all future active county, district, probate, juvenile, water, court of appeals, and supreme court judges, and senior judges for service up to 60 court days in any 12 months;⁶ (4) a provision barring any newly appointed judge from taking office without senate approval following a public hearing held at least ten days after public notice; (5) a provision requiring all senate-approved appointees to stand for a retention vote in the next November election; (6) a provision requiring any judge retained by less than a sixty percent vote to face an election in November (the resulting one-year term would count as a full term); (7) a provision suspending without pay any judge convicted of a crime or subject to a negative finding by the Commission on Judicial Discipline and requiring him or her to stand for retention in the next November election to be held at least ninety days after the conviction or finding; (8) a provision requiring judges who are the subject of citizen-initiated removal petitions signed by the requisite number of electors to stand for a retention vote in the next November election at least ninety days after such petitions are filed; (9) a ban against active or senior judges from serving — following mandatory retirement, removal by discipline or election, resignation with a retention or removal election pending, or defeat for retention — without the written consent of all parties to a case or after being term-limited; (10) a provision requiring calendar year information concerning an incumbent's caseload, case resolution time, continuances, hours of attendance, and sentencing information to be made public and computer accessible by the following March 1; and (11) a provision requiring ballot information booklets and mailed election notices to contain the aforementioned calendar year information, as well as any criminal conviction or negative finding by the Commission on Judicial Discipline, a statement in favor of retention or for removal, and a "summary" of all comments against retention that may be filed by any person or group.

Second, the Initiative repeals the present requirement that judges be licensed attorneys, providing that judicial appointees need only be "qualified electors" in a given judicial district.

Third, the Initiative modifies the powers of the Commission on Judicial Discipline by: (1) providing that all future Commission complaints, papers, hearings, and findings are to be public and accessible via computer within a limited time frame; (2) altering the confidentiality afforded to complainants and witnesses; and (3) depriving the Commission of its disciplinary discretion. The Initiative also requires that all appellate opinions be made public and computer accessible within this time frame.

Fourth, the Initiative prohibits the "mention or publication" of reports prepared by the Judicial Performance Commission.

Fifth, the Initiative contains directives regarding the enforcement of its substantive provisions. Paragraph (4) of the new Section 6 states that its provisions are subject to the following enforcement specifications: (1) the Initiative is to be strictly construed; good faith and substantial compliance are insufficient; (2) the provisions of the Initiative are severable and self-executing; and (3) the provisions of the Initiative shall not be balanced or harmonized with, but shall supersede conflicting laws. Paragraph (4) of the ballot text further provides that any person or group shall have standing to enforce Section 6 by originally filing a suit before the supreme court. These suits, in turn, must be orally argued, decided, and ruled upon within sixty days of filing, and successful petitioners are to be awarded attorney's fees and costs.

Finally, the Initiative proposes to repeal the following sections of Article VI of the Colorado Constitution: 7, 8, 11, 14, 15, 20(1), 20(3) & 23(3)(g), and the second sentence of 10(2). Three of these sections are of particular significance for purposes of the instant case. First, Article VI, Section 8 states that a person is not eligible to be a supreme court justice unless he or she is a qualified elector of the State of Colorado and has been licensed to practice law in Colorado for at least five years. Second, Article VI, Section 11 imposes similar eligibility requirements for district court judges. Third, the Initiative repeals Article VI, Section 23(3)(g), which provides that all papers filed with and all proceedings before the Commission on Judicial Discipline are confidential, and that all papers filed with and all testimony presented before the Commission are privileged.

The Board did not fix titles for the proposal at its first meeting on April 21, 1999, because one of the two Board members in attendance thought that the proposal contained multiple subjects. On May 5, 1999, the Board reconvened for a rehearing on the proposal. Notably, the Board member who voted against the proposal at the initial hearing was not present at the rehearing. Both Board members in attendance agreed that the proposal contained only a single subject; therefore, the Board's initial action was reversed and titles were fixed.⁷

II. SINGLE-SUBJECT/CLEAR TITLES REQUIREMENT

Petitioner argues that this Initiative is unconstitutional because: (1) the Initiative contains more than one subject in violation of Subsection 5.5 of Section 1 of Article V of the Colorado Constitution, and (2) the titles set by the Board do not clearly and correctly express the subject of the Initiative. We agree; therefore, we now reverse the Board's action.

We noted in our recent analysis of an unrelated initiative in In re Proposed Initiative for 1999-2000 # 25, 974 P.2d 458, 460-61 (Colo.1999), that two closely interdependent inquiries are germane to our review of a proposed initiative: one commanding that the subject treated in the body of the proposed initiative be clearly expressed in its titles and the other forbidding the union of separate and distinct subjects in the same proposed initiative. The duality of this requirement is illustrated by the following statement this court made over 100 years ago in In re Breene, 14 Colo. 401, 404, 24 P. 3, 3-4 (1890):⁸

[The constitutional provision] embraces two mandates, viz.: one forbidding the union in the same legislative bill of separate and distinct subjects, and the other commanding that the subject treated in the body of the [proposal] shall be clearly expressed in its title. Each of these mandates is designed to obviate flagrant evils connected with the adoption of laws. The former prevents joining in the same [proposal] disconnected and incongruous matters. The purpose of the latter is ... "to prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the [proposal]."

Id. Accordingly, we examine the interrelated clear titles and single-subject requirement in turn.

A. Single-Subject Requirement

The Colorado Constitution provides that the Board may not set the titles of a proposed Initiative, or submit it to the voters, if the Initiative contains multiple subjects. See In re Proposed Initiative "Petitions," 907 P.2d 586, 588 (Colo.1995)

. Article V, Section 1(5.5), which sets forth the single-subject requirement for initiatives, provides, in pertinent part:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a

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