Title v. Leahy
| Decision Date | 30 June 2014 |
| Docket Number | Supreme Court Case No. 14SA116,, Supreme Court Case No. 14SA119,, Supreme Court Case No. 14SA122 |
| Citation | 328 P.3d 136 |
| Parties | In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2013–2014 #85 Mizraim Cordero and Scott Prestidge, Petitioners v. Caitlin Leahy and Gregory Diamond, Respondents and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board In the Matter of the Title, Ballot Title and Submission Clause for 2013–2014 #86 Mizraim Cordero and Scott Prestidge, Petitioners/Cross-Respondents v. Caitlin Leahy and Gregory Diamond, Respondents/Cross-Petitioners and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board In the Matter of the Title, Ballot Title and Submission Clause for 2013–2014 #87 Mizraim Cordero and Scott Prestidge, Petitioners/Cross-Respondents v. Caitlin Leahy and Gregory Diamond, Respondents/Cross-Petitioners and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board |
| Court | Colorado Supreme Court |
OPINION TEXT STARTS HERE
Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2013) Appeal from the Ballot Title Setting BoardAttorneys for Petitioners: Brownstein Hyatt Farber Schreck LLP Sarah M. ClarkMichael F. Feeley Denver, CO
Attorneys for Respondents: Heizer Paul LLP Martha M. TierneyEdward T. Ramey Denver, CO
Attorneys for Ballot Title Board John W. Suthers, Attorney General Sueanna P. Johnson, Assistant Attorney General Denver, Colorado
En Banc
¶ 1 In this opinion, we review the actions of the Title Board in setting titles and ballot title and submission clauses (collectively, “titles”) for Initiatives 2013–2014 # 85, # 86, and # 87 (collectively, “Proposed Initiatives”).1 We hold that each of the Proposed Initiatives contains one subject—the creation of a statewide setback from occupied structures for new oil and gas wells. We also hold that the titles set by the Title Board fairly reflect the purpose of the Proposed Initiatives and are not misleading. We therefore affirm the actions of the Title Board.
¶ 2 Caitlin Leahy and Gregory Diamond (“Proponents”) are the designated proponents of the Proposed Initiatives. These initiatives are substantially similar in language, and are alternative versions of a single measure Proponents seek to place on the ballot for the 2014 general election.2 Each initiative would amend the Colorado Constitution by creating article XXX, which would establish a statewide setback requirement for new oil and gas wells; that is, new oil and gas wells would have to be located at least a specified distance from any occupied structure. The Proposed Initiatives differ in that Initiative # 85 requires a 1500 foot setback, Initiative # 86 requires a 2000 foot setback, and Initiative # 87 requires a half-mile (2640 foot) setback.3 The Proposed Initiatives state that the required setbacks do not constitute a taking under the Colorado Constitution, article II, sections 14 and 15. Finally, the Proposed Initiatives authorize a homeowner to waive the setback requirement with regard to his or her home.
¶ 3 On March 21, 2014, Proponents submitted a final version of the Proposed Initiatives with the Secretary of State. On April 3, 2014, the Title Board conducted hearings for each initiative and set titles in accordance with section 1–40–106(1), C.R.S. (2013). On April 10, 2014, Mizraim Cordero and Scott Prestidge (“Petitioners”) filed motions for rehearing, arguing that the Proposed Initiativesviolate the single subject requirement and that the titles are unclear and misleading. Petitioners further argued that the titles of Initiatives # 86 and # 87 “improperly conflict” with the title set for proposed Initiative # 85, in violation of section 1–40–106(1)(b), which provides that titles “shall not conflict with those selected for any petition previously filed for the same election.”
¶ 4 Following a rehearing on April 16, 2014, the Title Board concluded that the Proposed Initiatives contained a single subject, but modified the titles in response to concerns raised by Petitioners. Specifically, the Title Board removed the term “hydraulic fracturing” after determining that it was a catch phrase and politically charged. The Title Board also amended the titles to clarify that the Proposed Initiatives change existing statewide setback requirements. The Title Board rejected Petitioners' arguments regarding conflicting titles, observing that proponents commonly submit alternative versions of a single measure to the Title Board. The Title Board accepted Proponents' representations that they will collect signatures on only one version of their proposed initiative, and observed that the concern with conflicting titles instead generally lies where different sets of proponents circulate similar measures that may confuse voters. Following the rehearing, the title set for Initiative # 85 states:
An amendment to the Colorado constitution concerning a statewide setback requirement for new oil and gas wells, and, in connection therewith, changing existing setback requirements to require any new oil or gas well to be located at least 1,500 feet from the nearest occupied structure; authorizing a homeowner to waive the setback requirement for the homeowner's home; and establishing that the statewide setback requirement is not a taking of private property requiring compensation under the Colorado constitution.
¶ 5 The titles set for Initiatives # 86 and # 87 are identical in all respects to the titles set for Initiative # 85, except for the setback requirements of 2000 feet and one-half mile, respectively.
¶ 6 Petitioners challenge the Title Board's actions under section 1–40–107(2), C.R.S. (2013). Petitioners contend that the Title Board erred in setting titles because the Proposed Initiatives contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, C.R.S. (2013). Petitioners also contend that the titles of the Proposed Initiatives are misleading because: (1) the titles fail to inform voters that the Proposed Initiatives do not bar federal takings claims under the United States Constitution; (2) the titles fail to inform voters that the Proposed Initiatives may only affect oil and gas resources belonging to the state of Colorado; (3) the titles use the catchphrase “statewide setback” rather than the word “prohibition”; and (4) the titles for Initiatives # 86 and # 87 conflict with the title set for Initiative # 85.
¶ 7 Proponents filed a cross-petition with regard to Initiatives # 86 and # 87. The cross-petition argues that in excluding the phrase “hydraulic fracturing” from the titles of Initiatives # 86 and # 87, the Title Board rendered the titles incomplete and unclear.
¶ 8 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 & Submission Clause for 2011–2012 No. 3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565; 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 2011–2012 No. 3, 274 P.3d at 565.
¶ 9 The Title Board is vested with considerable discretion in setting the title and ballot title and submission clause. In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative on Parental Choice in Educ., 917 P.2d 292, 294 (Colo.1996). We will reverse the Title Board's decision only if a title is insufficient, unfair, or misleading. In re 2009–2010 No. 45, 234 P.3d at 648; see also In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 No. 29, 972 P.2d 257, 266 (Colo.1999)( that this court will reverse a title only if it contains a “material omission, misstatement, or misrepresentation”) (internal quotation marks omitted).
¶ 10 In our limited review of the Title Board's actions, we do not address the merits of the proposed initiatives nor suggest how they might be applied if enacted. In re 2011– 2012 No. 3, 274 P.3d at 565. However, we must examine their wording to determine whether the initiatives and their titles comport with the single-subject and clear title requirements. In re Title, Ballot Title & Submission Clause, & Summary for 2005–2006No. 75, 138 P.3d 267, 271 (Colo.2006). In conducting this limited inquiry, we employ the general rules of statutory construction and give words and phrases their plain and ordinary meaning. In re Title, Ballot Title & Submission Clause for 2007–2008 No. 17, 172 P.3d 871, 874 (Colo.2007).
¶ 11 Petitioners assert that the Title Board lacked authority to set the titles because the Proposed Initiatives contain multiple subjects in violation of the single subject requirement in article V, section 1(5.5) of the Colorado Constitution, which 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.
See also§ 1–40–106.5(1)(a), C.R.S. (2013) ().
¶ 12 The single subject requirement serves two functions: (1) “[t]o forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures...
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