Title v. Leahy

• Decision Date: 30 June 2014
• Docket Number: Supreme Court Case No. 14SA126
• Citation: 328 P.3d 172
• Parties: In the MATTER OF the TITLE, BALLOT TITLE, AND SUBMISSION CLAUSE FOR 2013–2014 #89 Douglas Kemper, Mizraim S. Cordero, and Scott Prestidge, Petitioners v. Caitlin Leahy and Gregory Diamond, Respondents and Suzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board.
• Court: Colorado Supreme Court

328 P.3d 172

In the MATTER OF the TITLE, BALLOT TITLE, AND SUBMISSION CLAUSE FOR 2013–2014 #89Douglas Kemper, Mizraim S. Cordero, and Scott Prestidge, Petitioners

v. Caitlin Leahy and Gregory Diamond, RespondentsandSuzanne Staiert, Daniel Domenico, and Jason Gelender, Title Board.

Supreme Court Case No. 14SA126

Supreme Court of Colorado.

June 30, 2014

Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2013), Appeal from the Ballot Title Setting Board

Attorneys for Petitioner Douglas Kemper: Burns, Figa & Will, P.C., Stephen H. Leonhardt, Alix L. Joseph, Wenzel J. Cummings, Greenwood Village, Colorado

Attorneys for Petitioners Mizraim S. Cordero and Scott Prestidge: Ryley Carlock & Applewhite, Richard C. Kaufman, Julie A. Rosen, Sarah K. Pallotti, Denver, Colorado

Attorneys for Respondents Caitlin Leahy and Gregory Diamond: Heizer Paul LLP, Martha M. Tierney, Edward T. Ramey, Denver, Colorado

Attorneys for Ballot Title Board: John W. Suthers, Attorney General, Sueanna P. Johnson, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶ 1 In this original proceeding under section 1–40–107(2), C.R.S. (2013), we review the Ballot Title Setting Board's (“Title Board”) findings that proposed initiative 2013–2014 # 89 (“Initiative # 89”), its title, and its ballot title and submission clause (collectively, the “Titles”) contain a single subject and that the Titles are clear.¹ We hold that Initiative # 89 and its Titles state a single subject and that the Titles satisfy the clear title requirement.² We therefore affirm the action of the Title Board.

I. Facts and Procedural History

¶ 2 Respondents Caitlin Leahy and Gregory Diamond proposed Initiative # 89 to create a public right to Colorado's environment by adding new section 32 to article II of the state constitution. Specifically, proposed subsection (1) states that Colorado's environment, meaning “clean air, pure water, and natural and scenic values,” is the “common property of all Coloradans.” Proposed subsection (2) makes state and local governments trustees of the environment and requires that they conserve the state's environment. Finally, proposed subsection (3) authorizes local governments to enact “laws, regulations, ordinances, and charter provisions that are more restrictive and protective of the environment” than the laws enacted by the state. This proposed subsection also states that if a local law conflicts with state law, the more restrictive and protective law governs.

¶ 3 The Proponents submitted a final version of Initiative # 89 to the Secretary of State on March 21, 2014. The Title Board conducted a hearing for the initiative. The Title Board concluded that the initiative contained a single subject as required by article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, C.R.S. (2013). Accordingly, the Title Board set the Titles in accordance with section 1–40–106(1), C.R.S. (2013).

¶ 4 On April 10, 2014, Petitioner Douglas Kemper filed a Motion for Rehearing, arguing that Initiative # 89 violated the single subject requirements of section 1–40–106.5 and of article V, section 1(5.5) of the Colorado Constitution, and violated the clear title requirement of section 1–40–106. Petitioners Mizraim S. Cordero and Scott Prestidge also filed a motion for rehearing on the same day. Cordero and Prestidge made similar arguments to Kemper and also raised other issues with respect to the single subject and clear title requirements.

¶ 5 At the rehearing on April 16, 2014, the Title Board rejected Petitioners' objections and concluded that the measure contained a single subject. The Title Board did, however, modify the Titles. The amended title reads as follows:

An amendment to the Colorado constitution concerning a public right to Colorado's environment, and, in connection therewith, declaring that Colorado's environment is the common property of all Coloradans; specifying that the environment includes clean air, pure water, and natural and scenic values and that state and local governmentsare trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs.³

According to the Title Board, the initiative's single subject is the “creation of the public's right to Colorado's environment.”

¶ 6 Petitioners now raise several challenges to the Title Board's actions regarding Initiative # 89. Petitioners assert that in setting the Titles, the Title Board violated article V, section 1(5.5) of the Colorado Constitution and section 1–40–106.5, because Initiative # 89 contains multiple subjects. In addition, Petitioners contend that the Titles are misleading.

II. Analysis

¶ 7 We hold that Initiative # 89 and its Titles contain a single subject—the creation of the public's right to Colorado's environment—and that the Titles are fair, clear, and accurate. To reach this result, we first explain the limited scope of our review. We then discuss Colorado's single subject rule and analyze the plain language of Initiative # 89 to conclude that it contains a single subject. Finally, we describe Colorado's title requirements and determine that the Titles here comport with the requirements.

A. Standard of Review

¶ 8 When 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). As such, we liberally construe the single subject requirement and “only overturn the Title Board's finding that an initiative contains a single subject in a clear case.” In re Title, Ballot Title, & Submission Clause for 2011–2012 No. 3, 2012 CO 25, ¶ 6, 274 P.3d 562; In re Title, Ballot Title, Submission Clause, & Summary Adopted March 20, 1996, by the Title Bd. Pertaining to Proposed Initiative 1996–6, 917 P.2d 1277, 1280 (Colo.1996). Similarly, when reviewing the Titles for clarity and accuracy, we only reverse the Title Board's decision if the Titles are “insufficient, unfair, or misleading.” In re 2009–2010 No. 45, 234 P.3d at 648.

¶ 9 In addition to being limited by the deferential standard that we afford the Title Board's decisions, our review is also limited to two narrow inquiries. First, we analyze the plain language of the initiative to determine whether it comports with the requirement that the proposal only contain a single subject. In re 2011–2012 No. 3, ¶ 8. Second, we analyze the Titles to determine if they are “fair, clear, accurate, and complete.” Id. In conducting each of these inquiries, we employ the general rules of statutory construction and give the 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).

¶ 10 Crucially, when reviewing the Title Board's decision, we do not consider the merits of the proposed initiative. In re 2011–2012 No. 3, ¶ 8. Nor do we review the initiative's “efficacy, construction, or future application,” as those issues do not come up unless and until the voters approve the amendment. In re 2009–2010 No. 45, 234 P.3d at 645; In re Title, Ballot Title, Submission Clause, & Summary for 1999–2000 No. 200A, 992 P.2d 27, 30 (Colo.2000) (“[T]he initiative's efficacy, construction, or future application ... is a matter for judicial determination in a proper case should the voters approve the initiative.”).

¶ 11 With this standard in mind, we now review the single subject requirement and then consider whether Initiative # 89 violates it.

B. Initiative # 89 Does Not Violate the Single Subject Requirement

¶ 12 In accord with article V, section 1(5.5) of the state constitution, section 1–40–106.5(1)(a) requires that “every constitutional amendment or law proposed by initiative... be limited to a single subject.” Accordingly, a proposed initiative that “relate[s] to more than one subject, and ha[s] at least two distinct and separate purposes not dependent upon or connected with each other,” violates this rule. SeePeople ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 177 (1903). In other words, a proposed initiative cannot seek to accomplish multiple, discrete, unconnected purposes. SeeIn re Title, Ballot Title, Submission Clause, & Summary Adopted April 5, 1995, by Title Bd. Pertaining to a Proposed Initiative Pub. Rights in Waters II, 898 P.2d 1076, 1080 (Colo.1995) ( “Waters II ”) (holding that the initiative violated the single subject requirement where there was “no unifying or common objective between the ... paragraphs”). By contrast, “if the initiative tends to effect or to carry out one general object or purpose, it is a single subject under the law.” Id. at 1079. An initiative meets this requirement as long as the subject matter of the initiative is “necessarily or properly connected.” In re 1996–6, 917 P.2d at 1280 (internal quotation marks omitted). Stated differently, “so long as an initiative encompasses related matters it does not violate the single subject requirement.” In re Title, Ballot Title, Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to the Constitution of the State of Colo. Adding Section 2 to Article VII, 900 P.2d 104, 113 (Colo.1995) (Scott, J., concurring). While the initiative's subject or purpose may be broad, an initiative cannot satisfy the single subject requirement simply by claiming that each proposed change falls under the same general overarching theme. Compare In re Title, Ballot Title, Submission Clause, & Summary for 1999–2000 No. 256, 12 P.3d 246, 254 (Colo.2000) (holding that an initiative does not violate the single subject requirement simply because it covers a broad subject), withWaters II, 898 P.2d at 1080 (holding that “water” is too general to satisfy the single subject requirement).

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