Title, Ballot Title v. Hamilton

• Decision Date: 16 April 2012
• Docket Number: No. 12SA8.,12SA8.
• Citation: 274 P.3d 562,2012 CO 25
• Parties: In the Matter of the TITLE, BALLOT TITLE, and SUBMISSION CLAUSE FOR 2011–2012 # 3Douglas Kemper, Petitioner v. Richard G. Hamilton and Phillip Doe, Proponents, RespondentsandWilliam A. Hobbs, Jason Gelender, and Daniel Domenico., Title Board.
• Court: Colorado Supreme Court

2012 CO 25

274 P.3d 562

In the Matter of the TITLE, BALLOT TITLE, and SUBMISSION CLAUSE FOR 2011–2012 # 3Douglas Kemper, Petitioner

v.Richard G. Hamilton and Phillip Doe, Proponents, RespondentsandWilliam A. Hobbs, Jason Gelender, and Daniel Domenico., Title Board.

No. 12SA8.

Supreme Court of Colorado, En Banc.

April 16, 2012.

Burns, Figa & Will, P.C., Stephen H. Leonhardt, Alix L. Joseph, Sarah M. Shechter, Greenwood Village, Colorado, Attorneys for Petitioner.

Richard G. Hamilton, Pro Se, Fairplay, Colorado.

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Ballot Title Board.No appearance by or on behalf of Phillip Doe.Justice RICE delivered the Opinion of the Court.

¶ 1 In this original proceeding under section 1–40–107(2), C.R.S. (2011), we review the Ballot Title Setting Board's (“Title Board”) findings that proposed Initiative 2011–2012 No. 3 (“Initiative 3”), its title, and its ballot title and submission clause (the “Titles”) contain a single subject. ¹ We hold that the Title Board was correct. Initiative 3 and its Titles state a single subject—“the public's rights in the waters of natural streams”—and therefore comply with article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, C.R.S. (2011). We therefore affirm the action of the Title Board.

I. Facts and Procedural History

¶ 2 Respondents Richard G. Hamilton and Phillip Doe proposed Initiative 3 to enact the “Colorado public trust doctrine” by adding new subsections (2) through (7) to article XVI, section 5 of the state constitution. Specifically, proposed subsection (2) would expressly adopt a version of the public trust doctrine to “protect the public's interests in the water of natural streams and to instruct the State of Colorado to defend the public's water ownership rights of use and public enjoyment.” Proposed subsections (3) and (4) would subordinate contract, property, and appropriative water rights to the “public estate in water.” Proposed subsection (5) would allow public access “along, and on, the wetted natural perimeter” of any “natural stream in Colorado,” and would extend this public access right to the “naturally wetted high water mark of the stream.” Proposed subsection (6) would provide enforcement mechanisms for the new public trust doctrine, and proposed subsection (7) would authorize the legislature to enact laws supplemental and complementary to the new constitutional provisions.

¶ 3 The Title Board designated the Titles for Initiative 3 in accordance with section 1–40–106(1), C.R.S. (2011), during a public meeting on December 21, 2011. The title reads as follows:

An amendment to the Colorado constitution concerning the public's rights in the water of natural streams, and, in connection therewith, making public ownership of such water legally superior to water rights, contracts, and property law; granting unrestricted public access along and use of natural streams and their stream banks up to the naturally wetted high water mark; prohibiting the state from transferring its water rights; allowing the state government to manage others' water rights, while requiring state government to act as steward of and to protect, enforce, and implement public ownership of water; and allowing any Colorado citizen to sue to enforce the amendment.

(Emphasis added).

¶ 4 The ballot title and submission clause contains the same language as the title, phrased in the form of a question. Petitioner Douglas Kemper filed a Motion for Rehearing on December 28, 2011, arguing that Initiative 3 and the Titles violated the single subject requirements of section 1–40–106.5 and of article V, section 1(5.5) of the Colorado Constitution. The Title Board heard testimony on the Motion for Rehearing during its meeting on January 4, 2012. It discussed the measure, and unanimously denied Kemper's objections, finding that both Initiative 3 and the Titles contained a single subject: “the public's rights in the waters of natural streams.” Kemper seeks this Court's review of the Title Board's single subject findings pursuant to section 1–40–107(2).

II. Analysis

¶ 5 We hold that the Title Board correctly found that Initiative 3 and its Titles contain a single subject because they necessarily and properly relate to “the public's rights in the waters of natural streams.” We first describe our limited role in reviewing the Title Board's decision. We then outline Colorado's single subject rule, noting the dangers of omnibus initiatives. Finally, we analyze the plain language of Initiative 3 to conclude that it complies with the single subject rule. We also hold that the Titles fairly and clearly reflect the proposed measure and its single subject.

A. Standard of Review

¶ 6 In reviewing a challenge to the Title Board's decision, “we employ all legitimate presumptions in favor of the propriety of the [Title] Board's actions.” In re Title, Ballot Title, Submission Clause for 2009–2010 No. 45, 234 P.3d 642, 645 (Colo.2010). We will only overturn the Title Board's finding that an initiative contains a single subject in a clear case. In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Casino Gaming Initiative Adopted on April 21, 1982, 649 P.2d 303, 306 (Colo.1982).

¶ 7 In addition, the Title Board has considerable discretion in setting the titles for a ballot initiative. In re Title, Ballot Title, Submission Clause, and Summary Adopted March 20, 1996 by the Title Bd. Pertaining to Proposed Initiative “1996–6,” 917 P.2d 1277, 1280 (Colo.1996). We will only reverse the Title Board's designation if the titles are “insufficient, unfair, or misleading.” In re Proposed Initiative 2009–2010 No. 45, 234 P.3d at 648.

¶ 8 Our limited role in this process prohibits us from addressing the merits of a proposed initiative, and from suggesting how an initiative might be applied if enacted. In re Title, Ballot Title and Submission Clause for Proposed Initiative 2001–02 No. 43, 46 P.3d 438, 443 (Colo.2002). We will sufficiently examine Initiative 3, however, to determine whether or not it violates the constitutional prohibition against initiative proposals containing multiple subjects. Id.; see also Colo. Const. art. V, § 1(5.5). We will also examine the Titles as a whole to determine if they are fair, clear, accurate, and complete. In re Proposed Initiative 2009–2010 No. 45, 234 P.3d at 649; In re Title, Ballot Title, and Submission Clause for 2007–2008 No. 62, 184 P.3d 52, 58 (Colo.2008). During these examinations, we employ the general rules of statutory construction and accord the language of the proposed initiative and its titles their plain meaning. In re Title, Ballot Title and Submission Clause, for 2007–2008, No. 17, 172 P.3d 871, 874 (Colo.2007).

B. The Single Subject Requirement

¶ 9 Colorado law requires “that every constitutional amendment or law proposed by initiative ... be limited to a single subject, which shall be clearly expressed in its title.” § 1–40–106.5(1)(a); see also Colo. Const. art. V, § 1(5.5) (“No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title....”). A proposed initiative violates this rule if its text “relate[s] to more than one subject, and [has] at least two distinct and separate purposes not dependent upon or connected with each other.” People ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903); see In re Proposed Initiative 2001–02 No. 43, 46 P.3d at 441 (describing use of Sours test to analyze ballot initiatives). As such, the subject matter of an initiative must be “necessarily and properly connected” rather than “disconnected or incongruous.” In re Title, Ballot Title, Submission Clause, and Summary Adopted April 5, 1995, by Title Bd. Pertaining to a Proposed Initiative “Pub. Rights in Waters II ”, 898 P.2d 1076, 1079 (Colo.1995).

¶ 10 A proponent's attempt to characterize a proposed initiative under “some overarching theme” will not save the measure if it contains separate and unconnected purposes. In re Proposed Initiative 2001–02 No. 43, 46 P.3d at 442. We have held that “water” and “revenue changes” are two examples of “overarching themes” that did not qualify as single subjects when the proposed initiatives associated with the themes contained disconnected or incongruous provisions. See Pub. Rights in Waters II, 898 P.2d at 1080 (holding that “water” is too general and too broad to constitute a single subject); see also In re Title, Ballot Title and Submission Clause, and Summary with Regard to a Proposed Petition for an Amendment to the Constitution of the State of Colo. Adding Subsection (10) to Section 20 of Article X (Amend TABOR 25), 900 P.2d 121, 125–26 (Colo.1995) (concluding that umbrella subject of “revenue changes” did not alter the fact that the measure contained two unrelated subjects—a tax credit and changes to the procedural requirements for ballot titles).

¶ 11 We have previously explained that the single subject rule prevents two “dangers” associated with omnibus initiatives. See In re Proposed Initiative 2001–02 No. 43, 46 P.3d at 442–43. First, 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—could lead to the enactment of measures that would fail on their own merits. Id. at 442; see § 1–40–106.5(1)(e)(I). Second, the single subject rule helps avoid “voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision ‘coiled up in the folds' of a complex initiative.” In re Proposed Initiative 2001–02 No. 43, 46 P.3d at 442; see § 1–40–106.5(1)(e)(II).

¶ 12 Recognizing these dangers, we have applied the single subject rule to public trust doctrine initiatives—like Initiative 3—on several previous occasions. In 1995 and 2007, we held that the proposed public...