Title, Ballot Title and Submission Clause, and Summary for 1997-98 No. 62, Matter of, 98SA132

• Decision Date: 08 June 1998
• Docket Number: No. 98SA132,98SA132
• Parties: 128 Ed. Law Rep. 1239, 98 CJ C.A.R. 2856 In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND SUMMARY FOR 1997-98 # 62: John S. OUTCELT, Petitioner, v. Steve SCHUCK and Sharlot Smith, Respondents, and Victoria Buckley, Rebecca Lenahan and Richard Westfall, Title Board.
• Court: Colorado Supreme Court

Page 1077

961 P.2d 1077

128 Ed. Law Rep. 1239, 98 CJ C.A.R. 2856

In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION

CLAUSE, AND SUMMARY FOR 1997-98 # 62:

John S. OUTCELT, Petitioner, v. Steve SCHUCK and Sharlot Smith, Respondents, and Victoria Buckley, Rebecca Lenahan and Richard Westfall, Title Board.

No. 98SA132.

Supreme Court of Colorado,

En Banc.

June 8, 1998.

Colorado Education Association, Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, Cathy L. Cooper, Bradley C. Bartels, Denver, for Petitioner.

Powers Phillips, P.C., Richard W. Daily, Denver, for Respondents.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Paul Farley, Deputy Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section Denver, for Title Board.

Justice HOBBS delivered the Opinion of the Court.

Petitioner John S. Outcelt (Outcelt) appeals the order of the Title Board (Board) denying his motion for rehearing on the designation of the title, ballot title and submission clause, and summary (titles and summary) for the Proposed Initiative 1997-98 # 62 (Initiative # 62). Outcelt claims that the titles and summary fail to adequately inform the public of the priorities for tax credits created by the proposed initiative, and that they fail to fairly inform the public of the limitations on funding from the Educational Opportunity Fund created by the initiative. The proponents of the initiative and the Board contend that this appeal should be dismissed as untimely filed, and, in the alternative, that the titles and summary are fair, accurate, and succinct. We conclude that Outcelt's appeal was timely filed, and we uphold the Board's action in fixing the titles and summary for this initiative.

I.

On March 6, 1998, Steve Schuck and Sharlot Smith (the proponents) submitted Initiative # 62 ¹ to the secretary of state for the fixing of the titles and summary. This initiative proposes to add a new section to Article IX of the Colorado Constitution, requiring that reductions in contributions from the state's general fund to local school districts, as a result of a student transferring from a public school to a non-public school, shall be placed into an "Educational Opportunity Fund." Money in this fund would then be used for a tax credit to parents and legal guardians of public and non-public school students in a specified order of priority.

The Board held its initial hearing on March 18, 1998, and prepared the titles and summary for Initiative # 62 pursuant to section 1-40-106, 1 C.R.S. (1997). On March 25, 1998, Outcelt moved for rehearing pursuant to section 1-40-107(1), 1 C.R.S. (1997). The Board heard Outcelt's motion on Wednesday, April 1, 1998, adopted several of Outcelt's proposed changes, rejected several others, and denied the petition for rehearing. On April 2, 1998, pursuant to section 1-40-107(2), 1 C.R.S. (1997), Outcelt requested a certified copy of the initiative together with the titles and summary, the motion for rehearing, and the Board's ruling on the motion for rehearing. The secretary of state made certified copies of these documents available to Outcelt on Monday, April 6, 1998.

Outcelt filed his appeal with this court on Wednesday, April 8, 1998. On April 9, 1998, the proponents filed a motion to dismiss the appeal, claiming that it was not filed within the five day time limit prescribed by section 1-40-107(2). We requested that the parties brief the issue of timely filing in addition to Outcelt's substantive challenges to the titles and summary.

II.

We hold that an appeal from the Board's title and summary setting action must be filed within five days of the Board's denial of the rehearing motion, pursuant to section 1-40-107(2). However, we conclude that the appeal in this case was timely filed because the intervening weekend is not included under C.A.R. 26(a) when ascertaining compliance with the five day filing requirement. We uphold the Board's action in fixing the titles and summary for Initiative # 62.

A. The Five Day Filing Requirement

Section 1-40-107(2) describes the procedure for filing an appeal in this court to review the Title Board's action:

If any person who filed a motion for a rehearing pursuant to subsection (1) of this section is overruled by the title board, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles, submission clause, and summary of the proposed law or constitutional amendment, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within five days thereafter, the matter shall be docketed as a cause there pending....

(Emphasis added.) Outcelt contends that the five day filing period runs from the time the secretary of state answers the request for certified documents by furnishing them to the appellant. The Board and the proponents contend that the Board's denial of the rehearing motion triggers the commencement of the filing period. We agree.

We must read and interpret statutory language in its context. See § 2-4-101, 1 C.R.S. (1997). When legislative language is unambiguous, we give effect to the plain and ordinary meaning of the statute without resort to other rules of statutory construction. See Climax Molybdenum Co. v. Walter, 812 P.2d 1168, 1173 (Colo.1991). When the language is ambiguous or capable of more than one meaning, we construe the statute in light of the General Assembly's objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect. See Denver Area Labor Federation, AFL-CIO v. Buckley, 924 P.2d 524, 527 (Colo.1996).

In the context of the initiative process, we construe ambiguous statutory provisions, or conflicting interpretations of legislative language, in a manner which favors the initiative and referendum rights of citizens. See Fabec v. Beck, 922 P.2d 330, 341 (Colo.1996). In construing constitutional and statutory provisions governing the initiative process, we refrain when possible from a technical construction which would hamper the initiative process further than necessary to "fairly guard against fraud and mistake in the exercise by the people of this constitutional right." See id. (quoting Loonan v. Woodley, 882 P.2d 1380, 1384 (Colo.1994)).

The term "thereafter" in section 1-40-107(2) obviously refers to the preceding sentence. But ambiguity arises because the preceding sentence refers to two separate actions: (1) the Board's action in overruling the motion for rehearing, and (2) the secretary of state's action in furnishing certified documents relating to the Board's action. To determine which action triggers the running of the five day filing requirement, we must ascertain the General Assembly's objectives in the enactment of section 1-40-107(2).

We conclude that the five day filing requirement achieves two legislative objectives. The first objective is that of finality of Board action in the event no appeal is timely filed. We have previously noted that finality of agency action is a primary objective of the General Assembly when it fixes statutory deadlines for taking an appeal from an administrative decision. See State Personnel Bd. v. Gigax, 659 P.2d 693, 694 (Colo.1983)(interpreting statute which required filing of appeal to State Personnel Board within ten days, and noting that "[p]romoting the finality of decisions by the Board was clearly one of the General Assembly's primary objectives when it incorporated a ten-day limitation into [the statute]"). The second objective consists of an expedited appeal process from the Board's title and summary setting action. See § 1-40-107(2)(stating that appeals docketed in this court under this section shall have priority).

Outcelt asserts that the words "five days thereafter" must refer to the verb immediately preceding, "shall furnish," which describes the secretary of state's certification function. This approach mirrors the rule of statutory construction adopted by this court in People v. McPherson, 200 Colo. 429, 432, 619 P.2d 38, 40 (1980), which stated that "relative and qualifying words and phrases, where no contrary intention appears, are construed to refer solely to the last antecedent with which they are closely connected." However, in section 2-4-214, 1 C.R.S. (1997), the General Assembly expressly rejected this approach, stating that "the rule of statutory construction expressed in [McPherson] ... has not been adopted by the general assembly and does not create any presumption of statutory intent." ²

Of greater significance, Outcelt's proposed construction would entirely defeat the legislative objectives of finality of Board action and an expedited procedure in the event of an appeal. Under section 1-40-107(2) the secretary of state has no obligation to certify documents related to the Board's action except "upon request." If the time for filing an appeal does not begin to run until an opponent of the Board's action chooses to request the certification, the appeal process could be continued indefinitely at the instance of a party who has every incentive to favor delay and cause uncertainty. The proponent would be required to wait for an indefinite period for an appeal to be filed, or, with a constitutional deadline looming for gathering the requisite number of valid signatures, ³ begin to circulate a petition which may be superseded as a result of our review and remand to the Board.

Outcelt contends that requiring an appeal to be filed within five days of the denial of a rehearing motion may require the appellant to proceed without having obtained all of the certified documents. No such delay occurred in this case because the secretary of state certified the relevant documents on the fifth day after rehearing was denied. Thus, we need not address the hypothetical problem...