Title, Ballot Title v. Hamilton, 12SA22.

• Citation: 2012 CO 26,274 P.3d 576
• Decision Date: 16 April 2012
• Docket Number: No. 12SA22.,12SA22.
• Parties: In the Matter of the TITLE, BALLOT TITLE, and SUBMISSION CLAUSE FOR 2011–2012 # 45Douglas Kemper, Petitioner v. Richard G. Hamilton and Phillip Doe, Proponents, RespondentsandWilliam A. Hobbs, Jason Gelender, and Daniel Domenico, Title Board.
• Court: Supreme Court of Colorado

2012 CO 26

274 P.3d 576

In the Matter of the TITLE, BALLOT TITLE, and SUBMISSION CLAUSE FOR 2011–2012 # 45Douglas Kemper, Petitioner

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

No. 12SA22.

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, for Petitioner.

Richard G. Hamilton, Fairplay, Colorado, pro se.

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, 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. 45 (“Initiative 45”), 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 45 and its Titles state a single subject—“public control of waters”—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 45 to amend article XVI, section 6 of the Colorado Constitution with the goal of expanding the scope of public control over all of the state's water. The existing version of article XVI, section 6 addresses the diversion of unappropriated waters of natural streams. Initiative 45, with proposed subsection (1), would delete the “unappropriated” and “natural stream” language of the exiting provision to allow diversion of “water within the state of Colorado.” This right to divert would be limited or curtailed “to protect natural elements of the public's dominant water estate by holding as unlawful any usufruct use of water causing irreparable harm to the public's estate.”

¶ 3 Proposed subsection (2) would protect the revised public water estate by requiring appropriators to return the water they use “unimpaired to the public.” Proposed subsection (3) would additionally clarify the extent of the public's control of Colorado water by declaring that the “Colorado doctrine of appropriation” would involve a public grant of a water use “privilege” to appropriators, so long as they divert water for “the common good.” Proposed subsection (4) would define the state government's role as “stewards” of the amended public water estate, and would task state officials with implementing and enforcing the revised water regime. Proposed subsection (5) would confer standing upon Colorado citizens to compel the state government to comply with the stewardship obligation outlined in subsection (4). Finally, proposed subsection (6) would authorize the legislature to enact laws supplementary to the provisions of the constitutional amendment.

¶ 4 The Title Board designated the Titles for Initiative 45 in accordance with section 1–40–106(1), C.R.S. (2011), during a public meeting on January 4, 2012. The title as designated and fixed by the Title Board reads as follows:

An amendment to the Colorado constitution concerning public control of water, and, in connection therewith, allowing appropriative water rights to be limited or curtailed by prohibiting any use of water that would irreparably harm the public ownership interest in water; expanding the right to appropriate water for beneficial use to all water within Colorado, including nontributary groundwater and not limited to unappropriated water, subject to the public ownership interest; requiring water users to return water unimpaired after use to the public so as to protect the natural environment and the use and enjoyment of water by the public; requiring state government to act as steward of and to protect, enforce, and implement the public ownership interest; and allowing any Colorado citizen to sue to enforce the amendment.

(Emphasis added).

¶ 5 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 January 11, 2012, arguing that Initiative 45 and the adopted 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 a meeting on January 18, 2012. It discussed the measure, and denied Kemper's objections, finding that both Initiative 45 and the Titles contained a single subject: “public control of waters.” Kemper seeks this Court's review of the Title Board's findings pursuant to section 1–40–107(2).

II. Analysis

¶ 6 We hold that the Title Board correctly found that Initiative 45 contains a single subject because the proposed subsections necessarily and properly relate to “public control of waters.” We also hold that the Titles set by the Title Board satisfy the clear title requirement because they fairly and clearly reflect the single subject of Initiative 45.

¶ 7 We first describe our limited role in reviewing the Title Board's single subject determination. We then outline Colorado's single subject rule, noting the dangers of omnibus initiatives. Analyzing the plain language of Initiative 45, we hold that the proposal complies with the single subject rule. Finally, we describe and apply the clear title requirement to conclude that the Titles clearly and fairly express the true intent and meaning of Initiative 45 and its single subject.

A. Single Subject

1. Standard of Review

¶ 8 In reviewing a challenge to the Title Board's single subject decision, “we employ all legitimate presumptions in favor of the propriety of the [Title] Board's actions.” In re Title, Ballot Title, and 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).

¶ 9 In addition, 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 the initiative, 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). During this examination, we employ the general rules of statutory construction and accord the language of the proposed initiative its plain meaning. In re Title, Ballot Title and Submission Clause, for 2007–2008, No. 17, 172 P.3d 871, 874 (Colo.2007).

2. The Single Subject Requirement

¶ 10 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; 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).

¶ 11 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 (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).

¶ 12 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...