In The Matter Of The Title v. Brown
| Decision Date | 28 June 2010 |
| Docket Number | No. 10SA135.,10SA135. |
| Citation | 235 P.3d 1071 |
| Parties | In the Matter of the TITLE, BALLOT TITLE and SUBMISSION CLAUSE FOR 2009-2010 # 91.Christopher Howes, Objector, Petitionerv.Richard G. Brown and Garald L. Barber, Proponents, RespondentsandWilliam A. Hobbs, Sharon Eubanks, and Geoff Blue, Title Board. |
| Court | Colorado Supreme Court |
COPYRIGHT MATERIAL OMITTED
Scott E. Gessler, Mario D. Nicolais, II, Steven A. Klenda, Hackstaff Gessler LLC, Denver, Colorado, Attorneys for Petitioner.
Richard G. Brown, Pro Se Respondent.
Garald L. Barber, Pro Se Respondent.
No appearance by or on behalf of the Ballot Title Setting Board.
Christopher Howes, a registered elector of the State of Colorado, filed this original proceeding pursuant to section 1-40-107(2), C.R.S. (2009), to challenge the Title Board's action in setting the title, ballot title and submission clause, and summary for 2009-2010 Initiative # 91 (“Initiative # 91”). Under the stated broad purpose “to protect and preserve the waters of the state,” Initiative # 91 proposes a constitutional amendment to article XVI, section 5 of the Colorado Constitution that would impose a tax on beverage containers, exempting containers that hold alcoholic beverages, dairy products, and medicines. The initiative would create a special fund into which the revenue generated by this tax would be placed, and it articulates that the fund shall be used as specified in the initiative.
Initiative # 91 directs eighty percent of the beverage container tax revenue to be distributed to Colorado's nine basin roundtables and the interbasin compact committee for use as specified in section (5) of the initiative. In addition, section (10) of the initiative would impose a prohibition on legislative actions by the General Assembly through the last day of December 2014, banning it from altering the statutes currently governing the basin roundtables and the interbasin compact committee, or from creating or empowering any other agency with authority to supersede or be superior to the basin roundtables or interbasin compact committee.
Among other arguments, Howes contends that Initiative # 91 contains multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. We agree. We hold that Initiative # 91 contains at least two subjects: (1) creating and administering a beverage container tax, and (2) prohibiting the General Assembly from exercising its legislative authority over the basin roundtables and interbasin compact committee until the year 2015, while embedding these entities within the water sections of the Colorado Constitution and vesting them with significant new authority.
We therefore reverse the action of the Title Board and return this matter to the Board with directions to strike the title and return the initiative to the proponents. Because we determine that Initiative # 91 contains multiple subjects, we need not address Howes' remaining arguments that the title set by the Title Board is misleading and that the Title Board lacked jurisdiction because the proponents amended the initiative without complying with section 1-40-105(4), C.R.S. (2009). See In re Title, Ballot Title & Submission Clause for Proposed Initiative 2001-02 # 43, 46 P.3d 438, 440 (Colo.2002); In re Title, Ballot Title & Submission Clause, and Summary for 1997-98 No. 45, 960 P.2d 648, 650 (Colo.1998).
On April 19, 2010, the Title Board set the title, ballot title and submission clause, and summary for Initiative # 91. Howes filed a motion for rehearing pursuant to section 1-40-107(1), C.R.S. (2009), arguing that Initiative # 91 contained multiple subjects, that the title was misleading, and that the Title Board did not have jurisdiction to set a title because the proponents made substantial amendments to Initiative # 91 without highlighting the changes as required by section 1-40-105(4).
The Title Board granted Howes' motion in part, striking several terms in the title that it determined could be misleading.1 However, the Title Board denied Howes' motion with respect to all of his other arguments, including that Initiative # 91 contained multiple subjects. Howes filed this original proceeding with us pursuant to section 1-40-107(2) to challenge the Title Board's decision, making the same arguments he made to the Board in his motion for rehearing.
Initiative # 91 2 begins by stating, “[i]n order for the waters of this state to be available to future generations of Colorado citizens for both consumptive and nonconsumptive uses, it is necessary and prudent to establish a means to protect and preserve the waters of the state.” The initiative then declares that “[a] fee on containers that hold nonalcohol beverages for human consumption is rationally related to the protection and preservation of the waters of this state for future generations.”
Accordingly, the initiative proposes a constitutional amendment to article XVI, section 5 of the Colorado Constitution imposing a tax on beverage containers in the amount of one cent for each six fluid ounces, up to a maximum of fifty cents on any single container. The initiative specifically exempts containers that hold alcoholic beverages, dairy products, and medicines, as well as containers filled with a fountain beverage that are intended for immediate consumption.
Initiative # 91 would create a special fund in the state treasury into which the estimated $110 million annual revenue generated from the beverage container tax would be deposited and instructs the State Treasurer how and when to distribute the funds. Section (5) of the initiative specifies that the bulk of the fund shall be available exclusively to the basin roundtables and the interbasin compact committee for:
Initiative # 91 specifies to whom the revenue will be distributed. Five percent of the beverage container tax revenue, up to six million dollars, is to be maintained as a reserve, and the state may borrow up to two-thirds of this reserve to defend against legal action pursuant to the Colorado River Compact.
After the reserve requirement is met, twenty percent of the remaining revenue is to be transferred to the general fund for appropriation to the Colorado Water Conservation Board and the State Engineer for specified uses, and to the State Treasurer and State Auditor for administrative costs connected with the fund.
The remaining eighty percent of the revenue is to be distributed to the nine basin roundtables and the interbasin compact committee, which were established by sections 37-75-101 to -107, C.R.S. (2009).3
Section (10) of the initiative places a four-year prohibition on legislative actions by the General Assembly, banning it from amending, repealing, or modifying sections 37-75-101 to -107-the statute governing the basin roundtables and the interbasin compact committee-as those sections existed on January 1, 2010, or from creating or empowering any other agency with authority to supersede or be superior to the basin roundtables or interbasin compact committee. Section (10) provides in full:
There is hereby established a four-year moratorium on the amendment, repeal, or modification of article 75 of title 37, Colorado Revised Statutes, that created and governs the basin roundtables and the interbasin compact committee as article 75 of title 37 was incorporated in the laws of Colorado as of January 1, 2010. The purpose for the moratorium is to provide for the stability of the fund, the express uses of moneys in the fund, the accountability for the use of any moneys received from the fund and to provide adequate time for the basin roundtables and the interbasin compact committee to complete the tasks that have been assigned to them under the provisions of article 75 of title 37, Colorado Revised Statutes and [Initiative # 91's] section (5). During the period of this moratorium, the General Assembly shall not create nor empower any other agency to supersede or be superordinate to the basin roundtables or the interbasin compact committee. This moratorium is terminated and this subsection (10) is repealed on January 1, 2015.
(Emphasis added).4
Howes argues that Initiative # 91 contains more than one subject in violation of Colorado Constitution article V, section 1(5.5). Specifically, Howes argues that Initiative # 91 has three subjects: (1) creating a beverage container tax; (2) significantly transforming the role of the basin roundtables and the...
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