Smith v. Hayes (In re Title, Ballot Title & Submission Clause for 2017–2018 #4)

• Decision Date: 30 May 2017
• Docket Number: Supreme Court Case No. 17SA6
• Citation: 395 P.3d 318
• Parties: In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2017–2018 #4 Scott E. Smith and D. Michael Kopp, Petitioners, v. Daniel Hayes and Julianne Page, Respondents, and Suzanne Staiert, Sharon Eubanks, and Glenn Roper, Title Board.
• Court: Colorado Supreme Court

395 P.3d 318

In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2017–2018 #4

Scott E. Smith and D. Michael Kopp, Petitioners,

v.Daniel Hayes and Julianne Page, Respondents,andSuzanne Staiert, Sharon Eubanks, and Glenn Roper, Title Board.

Supreme Court Case No. 17SA6

Supreme Court of Colorado.

May 30, 2017

Attorneys for Petitioner Scott E. Smith: Recht Kornfeld, P.C., Mark G. Grueskin, Denver, Colorado

Attorneys for Petitioner D. Michael Kopp: Brownstein Hyatt Farber Schreck LLP, Jason R. Dunn, David B. Meschke, Denver, Colorado

Attorneys for Title Board: Cynthia H. Coffman, Attorney General, LeeAnn Morrill, First Assistant Attorney General, Denver, Colorado

No appearance on behalf of Respondents.

En Banc

JUSTICE EID delivered the Opinion of the Court.

¶1 Pursuant to section 1-40-107, C.R.S. (2016), petitioners Scott E. Smith and D. Michael Kopp ("Petitioners"), both registered electors, appeal the actions of the Ballot Title Setting Board ("Title Board") regarding the setting of the title and ballot title and submission clause for Proposed Initiative 2017–2018 #4 ("Initiative #4") (for tracking purposes, captioned "Limit on Local Housing Growth").¹ First we consider whether Initiative #4 contains a single subject and conclude that it does—namely, the limitation of housing growth in Colorado. Further, we consider, for the first time, our authority to review an abstract prepared and submitted to the Title Board as required by section 1-40-105.5, C.R.S. (2016). We hold that section 1-40-107 authorizes this court to review such an abstract. We apply the same standard of review that we apply to the single-subject and clear-title requirements—that is, we draw all legitimate presumptions in favor of the propriety of the Title Board's decision and only overturn the Board's decision in a clear case. Under this standard, we uphold the Title Board's approval of the abstract at issue here. We therefore affirm the actions of the Title Board.

I.

¶2 Respondents Daniel Hayes and Julianne Page are the designated proponents of Initiative #4, which aims to limit housing growth in Colorado. Initiative #4 would amend the Colorado Constitution by adding a new section to article XVIII, titled "Colorado growth limitation." The new section would give every "city, town, city and county, or local county" the right to limit housing growth by initiative and referendum. It would also cap annual housing growth at one percent in ten jurisdictions for the years 2019 and 2020,² after which time the growth limitation could be amended or repealed by initiative and referendum, and it would prohibit the issuance of permits to build new, privately owned residential housing units in the same ten jurisdictions until January 1, 2019. Initiative #4 also provides signature requirements for initiatives and referenda undertaken pursuant to the new section and outlines procedures for challenging initiatives.

¶3 The Title Board first denied title setting, finding that the initial version of Initiative #4 did not contain a single subject.³ The Title Board held a public hearing on a revised version of Initiative #4 on December 21, 2016. At that hearing, the Board granted single-subject approval and set a title. It also approved an initial fiscal impact statement and abstract for the Initiative, which were prepared pursuant to a Colorado statute that took effect in March 2016 and requires fiscal impact statements for every measure submitted to the Title Board, see § 1-40-105.5(2)(a).

¶4 Petitioners Scott E. Smith and D. Michael Kopp each filed a petition for rehearing, contending that Initiative #4 contained multiple subjects, the title was misleading, and the abstract failed to meet the requirements of section 1-40-105.5(3). The Title Board held a rehearing on January 4, 2017, at which it amended the title and denied both rehearing petitions in all other respects.

¶5 Petitioners each sought review by this court of the Title Board's actions.⁴ Specifically, Petitioners contend that (1) Initiative #4 contains multiple subjects, and (2) the abstract fails to comply with the requirements set forth in section 1-40-105.5(3).

II.

A.

¶6 The Colorado Constitution provides that no constitutional amendment or law "shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title." Colo. Const. art. V, § 1 (5.5); see also § 1-40-106.5(1)(a), C.R.S. (2016) (stating the constitutional single-subject requirement). In reviewing Title Board decisions, "we employ all legitimate presumptions in favor of the propriety of the Board's actions." In re Title, Ballot Title and Submission Clause for 2013–2014 #90 , 2014 CO 63, ¶ 7, 328 P.3d 155, 158. "We will only overturn the Title Board's finding that an initiative contains a single subject in a clear case." Id. In our limited review, we examine the wording of a proposed initiative to determine whether it comports with the constitutional single-subject requirement. Id. at ¶ 9, 328 P.3d at 159. We do not address the merits of a proposed initiative or suggest how it might be applied if enacted. Id. ; In re Title, Ballot Title, and Submission Clause for 2011–2012 #3 , 2012 CO 25, ¶ 8, 274 P.3d 562, 565.

¶7 The single-subject requirement functions to prevent two dangers: (1) "logrolling," or the practice of "combining subjects with no necessary or proper connection for the purpose of garnering support for the initiative from various factions—that may have different or even conflicting interests—[in order to] lead to the enactment of measures that would fail on their own merits"; and (2) voter surprise and fraud caused by the "passage of a surreptitious provision ‘coiled up in the folds' of a complex initiative." In re 2011–2012 #3 , ¶ 11, 274 P.3d at 566 (quoting In re Title, Ballot Title and Submission Clause for Proposed Initiative 2001–02 #43 , 46 P.3d 438, 442 (Colo. 2002) ); see also § 1-40-106.5(1)(e). Accordingly, the subject matter of a proposed initiative "must be necessarily and properly connected rather than disconnected or incongruous." In re 2013–2014 #90 , ¶ 11, 328 P.3d at 159 (quoting In re 2011–2012 #3 , ¶ 9, 274 P.3d at 565 ). An initiative violates the single-subject requirement if it "relates to more than one subject and has at least two distinct and separate purposes."Id.

¶8 We have held repeatedly that where a proposed initiative "tends to effect or to carry out one general objective or purpose," it presents only one subject. In re Title, Ballot Title and Submission Clause, and Summary for 1999–00 #256 , 12 P.3d 246, 253 (Colo. 2000) (quoting In re Title, Ballot Title and Submission Clause, and Summary for 1999–2000 #25 , 974 P.2d 458, 463 (Colo. 1999) ); accord In re 2013–2014 #90 , ¶ 11, 328 P.3d at 159. Additionally, an initiative does not violate the single-subject requirement simply because it contains provisions necessary to effectuate its purpose. See In re 2013–2014 #90 , ¶ 11, 328 P.3d at 159. Rather, so long as they are interrelated, such provisions "are properly included within [the initiative's] text." Id. ; see also In re Title, Ballot Title and Submission Clause for 2009–2010 #45 , 234 P.3d 642, 646 (Colo. 2010) ("An initiative may contain several purposes, but they must be interrelated.... Implementing provisions that are directly tied to the initiative's central focus are not separate subjects." (Citation omitted)). In reviewing the Title Board's actions, we remain mindful of our limited role and construe the single-subject requirement liberally to avoid unduly restricting the initiative process. In re 2013–2014 #90 , ¶ 12, 328 P.3d at 160.

¶9 Here, Petitioners contend that Initiative #4 contains multiple subjects. Petitioners assert that subsection 1 of Initiative #4 creates a new county right of initiative and restricts the governance power of home-rule municipalities, which they claim are subjects distinct from the one-percent annual limit on housing growth established in subsection 2. They argue further that subsection 4 enacts a "change to the initiative process itself," and thus constitutes yet another separate subject. We disagree.

¶10 We hold that Initiative #4 contains a single subject: limiting housing growth in Colorado. Subsections 2 and 3 limit housing growth to one percent annually in ten jurisdictions until 2021 and prohibit permits for new residential housing units in the same jurisdictions until 2019. Both provisions "tend to ... carry out [the] one general objective" of limiting housing growth in Colorado by providing a means for reducing the number of new homes built. The provisions are thus interrelated and necessarily and properly connected to the subject of limiting housing growth in Colorado. See, e.g. , In re 2009–2010 #45 , 234 P.3d at 647 (finding provisions "seek[ing] to achieve the central purpose of the initiative" to be "directly connected and related" to the initiative's single purpose).

¶11 Subsection 1 designates who has authority under Initiative #4 to enact, alter, and repeal regulations on housing growth—namely, the "electors of every city, town, city and county, or local county, whether statutory or home rule." The possibility that subsection 1 might alter the power of home-rule municipalities does not render it a distinct and separate subject. See In re 2013–2014 #90 , ¶ 18, 328 P.3d at 161. To the contrary, the identification of who may act under an initiative is necessarily and properly connected to the initiative's central subject. See id. ("The designation of the government entities that hold the regulatory power authorized under the initiative [ ] is necessarily and properly connected to the central purpose of the measure [ ]."). Additionally, to the extent subsection 1 might affect the rights of home-rule municipalities, it would do so only in the context of local proposals to regulate housing growth. Cf. id. Thus, subsection 1 is not a "disconnected or incongruous" attempt to shift voting powers broadly, but...