Title, Ballot Title, Submission Clause, Summary for 1997-98 No. 84, Matter of, 84

• Decision Date: 08 June 1998
• Docket Number: 98SA148,No. 84,No. 85,Nos. 98SA147,84,85,s. 98SA147
• Citation: 961 P.2d 456
• Parties: 98 CJ C.A.R. 2850 Matter of TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, SUMMARY FOR 1997-98John S. OUTCELT, Petitioner, v. Douglas BRUCE and Jeffrey Wright, Respondents, and Victoria Buckley, Rebecca Lennahan and Richard Westfall, Title Board. (Two Cases) Matter of TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, SUMMARY FOR 1997-98
• Court: Colorado Supreme Court

Page 456

961 P.2d 456

98 CJ C.A.R. 2850

Matter of TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, SUMMARY FOR 1997-98 No. 84 John S. OUTCELT, Petitioner, v. Douglas BRUCE and Jeffrey Wright, Respondents and Victoria Buckley, Rebecca Lennahan and Richard Westfall Title Board. (Two Cases) Matter of TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, SUMMARY FOR 1997-98 No. 85.

Nos. 98SA147, 98SA148.

Supreme Court of Colorado En Banc.

June 8, 1998.

Susan E. Burch, Denver, for Petitioner.

Douglas Bruce, pro se, Jeffrey Wright, pro se, Colorado Springs, 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 MULLARKEY delivered the Opinion of the Court.

John Outcelt, a registered voter in the State of Colorado, challenges the actions of the initiative title setting board (the Board) in setting the title, ballot title and submission clause (collectively, the title), and summary for the proposed initiatives designated 1997-98 # 84 (Initiative # 84) and 1997-98 # 85 (Initiative # 85). ¹ Both initiatives would amend article X, section 20, of the Colorado Constitution. ²

On April 1, 1998, the Board set the title and summary for Initiative # 84 and Initiative # 85 at a hearing where the Board considered the proposed initiatives. On April 8, 1998, Outcelt filed motions for rehearing. The Board subsequently denied Outcelt's motions for rehearing on April 15, 1998. Pursuant to section 1-40-107(2), 1 C.R.S. (1997), Outcelt then sought this court's review of the Board's actions. Because Initiative # 84 and Initiative # 85 are nearly identical, we consolidated our review of the Board's actions for both initiatives.

We now hold that Initiative # 84 and Initiative # 85 contain multiple subjects and therefore violate article 5, section 1(5.5), of the Colorado Constitution. Accordingly, we reverse the Board's actions.

I.

Except for one minor difference, Initiative # 84 is identical to Initiative # 85. Both Initiative # 84 and Initiative # 85 seek to amend article X, section 20, of the Colorado Constitution by adding a new paragraph (d) to subsection (8). The new paragraph (d) would lower various state and local taxes and would require the state to replace affected local revenue loss. In addition, under the new paragraph, the state's revenue replacement obligation is subject to all tax and spending limits. The new paragraph (d) under Initiative # 84 provides:

A $25 tax cut, increased $25 the next year and then $50 yearly (to $100, $150 ...), shall lower each tax bill for each 1999 and later district: utility customer tax and franchise charge; vehicle ownership tax; yearly income tax; property tax spent on human and health services, district attorney and assessor offices, libraries, jails, courts, schools, economic development, enterprises, and authorities combined; property tax equal to yearly payments for lease-purchases and school debt; and remaining business personal property tax. The state shall replace affected local revenue monthly within all tax and spending limits, and audit each limit yearly; legal fees and costs shall mandatorily be awarded to successful plaintiffs only; and once a year, the general assembly may delay for one year all or part of the next year's increase in one or more tax cuts, but only if further tax cut or replacement amounts in that next year will leave total remaining state revenue from all sources growing less than $200 million.

The only difference in the new paragraph (d) under Initiative # 85 is that a tax cut on "franchise charges" is not included.³

Outcelt argues that the initiatives contain several deficiencies and that the Board's actions must therefore be reversed. First, Outcelt asserts that the initiatives contain multiple subjects. Second, Outcelt argues that even if there is only one subject in the initiatives, the title for each initiative does not correctly and fairly express the true intent and meaning of the initiatives. Third, Outcelt contends that by referring to a "tax cut," the titles contain an impermissible catch phrase. Fourth, Outcelt argues that Initiative # 84 and Initiative # 85 conflict with prior initiatives which this court recently addressed in In re 1997-98 # 45, 960 P.2d 648 (Colo.1998). Fifth, according to Outcelt, the titles of the initiatives do not conform with article X, section 20(3)(b), of the Colorado Constitution. Finally, Outcelt argues that the fiscal impact statements are incomplete.

We agree with Outcelt that Initiative # 84 and Initiative # 85 are unconstitutional because they contain multiple subjects. Because the initiatives are invalid on that basis, we need not address Outcelt's additional challenges. See In re 1997-98 # 30, 959 P.2d 822, 827-28 (Colo.1998) (as modified Apr. 13, 1998) (explaining that because the initiative encompassed more than one subject, the court did not need to address the additional challenges to the initiative); In re Amend TABOR 25, 900 P.2d 121, 123 (Colo.1995) (holding that the initiative encompassed more than a single subject and declining to address whether the title, ballot title and submission clause, and summary conformed to the requirements of section 1-40-106(3), 1B C.R.S. (1994 Supp.)). Accordingly, we limit our discussion to the multiple subjects contained in the initiatives.

II.

A.

Under the Colorado Constitution, initiatives must be limited to a single subject. See Colo. Const. art. V, § 1(5.5); In re "Public Rights in Waters II", 898 P.2d 1076, 1078 (Colo.1995). Article V, section 1(5.5), of the Colorado Constitution provides:

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 ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.

We reviewed the history and purpose of article V, section 1(5.5) in In re "Public Rights in Waters II", 898 P.2d at 1078-79. There, we explained that the single subject requirement "is intended to ensure that each proposal depends upon its own merits for passage," In re "Public Rights in Waters II", 898 P.2d at 1078, and that the requirement "forbids the joining of 'incongruous subjects in the same measure.' " Id. (quoting § 1-40-106.5(1)(e)(I), 1B C.R.S. (1994 Supp.)). Like the constitutional single subject requirement for bills passed by the General Assembly, the single subject requirement for initiatives prevents an initiative's proponents from joining together "multiple subjects into a single initiative in the hope of attracting support from various factions which may have different or even conflicting interests." Id. at 1079. Additionally, the single subject requirement is intended to protect voters against surprise and fraud. See In re Petition Procedures, 900 P.2d 104, 108 (Colo.1995) (citing § 1-40-106.5, 1B C.R.S. (1994 Supp.)).

Our prior decisions have established the appropriate test for determining whether or not an initiative adheres to the single subject requirement. See, e.g., In re Petition Procedures, 900 P.2d at 109; In re "Public Rights in Waters II", 898 P.2d at 1078-79. An initiative violates the single subject requirement when it 1) relates to more than one subject and 2) has at least two distinct and separate purposes which are not dependent upon or connected with each other. See In re "Public Rights in Waters II", 898 P.2d at 1078-79.

In reviewing the Board's actions setting the title, ballot title and submission clause, and summary, "we will engage in all legitimate presumptions in favor of the propriety of the Board's actions." In re Petition Procedures, 900 P.2d at 108. At the same time, "we must sufficiently examine an initiative to determine whether or not the constitutional prohibition against initiative proposals containing multiple subjects has been violated." In re 1997-98 # 30, 959 P.2d at 825.

B.

In In re 1997-98 # 30, we reviewed an initiative (Initiative # 30) that also proposed to amend article X, section 20, of the Colorado Constitution. Like the initiatives at issue in this case, Initiative # 30 would have added a new paragraph (d) to subsection (8) of section 20 of article X of the Colorado Constitution. See In re 1997-98 # 30, 959 P.2d at 823. In addition to similar tax-cutting language as that contained in Initiative # 84 and Initiative # 85, Initiative # 30 would have required the specification of a maximum tax rate with a fixed maximum number of dollars in the ballot title of voter-approved revenue and spending increases enacted since 1992. ⁴ See id. at 823-23. In reviewing the initiative, we found "at least two subject matters in Initiative # 30." Id. at 826. First, we explained that Initiative # 30 created tax cuts. See id. Second, based on the "fixed maximum tax rates with a fixed maximum number of dollars" provision, we explained that Initiative # 30 imposed new criteria for voter-approved revenue and spending increases. See id. at 826-27. Accordingly, we held that Initiative # 30 was unconstitutional. See id. at 827.

In arguing that the initiatives now before us contain only one subject, the Board points out that the only difference between this case and In re 1997-98 # 30 is that Initiative # 84 and Initiative # 85 have eliminated the objectionable provision in Initiative # 30 which referred to the "fixed maximum tax rates with a fixed maximum number of dollars." See id. at 826. Thus, according to the Board, "[t]he only subject issue raised by the petitioner which is not barred...