Title v. Spalding
| Decision Date | 23 June 2014 |
| Docket Number | Supreme Court Case No. 14SA105 |
| Citation | 333 P.3d 76 |
| Parties | In the MATTER OF the TITLE, BALLOT TITLE, AND SUBMISSION CLAUSE FOR 2013–2014 #76 Philip Hayes, Petitioner v. Mike Spalding and Natalie Menten, Respondents 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 Petitioner: Recht Kornfeld, P.C., Mark G. Grueskin, Denver, Colorado.
Attorneys for Ballot Title Board: John W. Suthers, Attorney General, Sueanna P. Johnson, Assistant Attorney General, Denver, Colorado, Natalie Menten, Pro Se, Lakewood,Colorado, Mike Spalding, Pro Se, Littleton, Colorado.
¶ 1 In this case reviewing the action of the Title Board setting a title for a proposed initiative, we hold that Proposed Initiative for 2013–2014 # 76 relates to more than one subject and has at least two distinct and separate purposes that are not dependent upon or necessarily and properly connected with each other, in violation of article V, section 1(5.5), of the Colorado Constitution.1
¶ 2 Initiative # 76 would repeal existing article XXI of the Colorado Constitution in its entirety. Currently, article XXI sets forth provisions for recalling state and local elected officers. Initiative # 76 proposes to comprehensively revamp article XXI's recall provisions, for the purpose of altering the manner in which state and local recall elections are triggered and conducted. Initiative # 76 has a second purpose, to establish a new constitutional right to recall non-elected state and local officers. Historically, Colorado law has provided only for the recall of elected officers. The initiative's second subject has a distinct and separate purpose from its first subject. Because the second subject has a purpose that is not dependent upon or necessarily and properly connected to the first, we conclude that Initiative # 76 proposes more than a single subject in violation of article V, section 1(5.5) of the Colorado Constitution.
¶ 3 Accordingly, we reverse the Title Board's action and return this matter to it with directions to strike the title and return the initiative to its proponents.
¶ 4 Proposed by registered electors Mike Spalding and Natalie Menten, Proposed Initiative for 2013–2014 # 76 seeks to repeal and replace the existing manner of triggering and conducting a recall election under Colorado Constitution article XXI and also institute a new constitutional right to recall state and local non-elected officers. The Title Board set a title and submission clause for this initiative. Registered elector Philip Hayes objected to the Title Board's action. He filed a motion for rehearing on grounds that the initiative contained multiple subjects in violation of article V, section 1(5.5), of the Colorado Constitution. The Title Board modified the title and submission clause in response to two of Hayes' objections but otherwise denied the motion for rehearing. It ruled that the initiative contains only a single subject, “the recall of government officers.” It then finalized the title and submission clause for Initiative # 76. Hayes appealed the Title Board's action to us pursuant to section 1–40–107, C.R.S. (2013).
¶ 5 The proponents of the initiative and the Title Board contend that the initiative, the title, and the submission clause address only a single subject in compliance with constitutional, statutory, and case law requirements. We disagree. We agree with Hayes that the initiative unconstitutionally proposes multiple subjects and the Title Board acted unconstitutionally in setting a title for it.
¶ 6 We hold that Initiative # 76 relates to more than one subject and has at least two distinct and separate purposes that are not dependent upon or necessarily and properly connected with each other, in violation of article V, section 1(5.5), of the Colorado Constitution.
¶ 7 In 1994, Colorado's electorate approved a referendum that extended the single subject/clear title limitation applicable to bills to proposed initiatives. In re Proposed Initiative for 1999–2000 # 25, 974 P.2d 458, 463 n. 4 (Colo.1999). “[A] proposed initiative contains multiple subjects not only when it proposes new provisions constituting multiple subjects, but also when it proposes to repealmultiple subjects.” In re Proposed Initiative for 1999–2000 # 104, 987 P.2d 249, 254 (Colo.1999) (emphasis in original). The legislature has assigned to us the duty of reviewing whether the Title Board has discharged its responsibilities in accordance with the applicable law. § 1–40–107; see alsoId.
¶ 8 Our function is limited to determining whether the contested language within the initiative creates a distinct and separate subject which is not connected to or dependent upon the remaining aspects of the initiative. Id. at 258. In reviewing a challenge to the Title Board's single subject determination, we employ all legitimate presumptions in favor of the Title Board's actions; we will only overturn the Title Board's finding that an initiative contains a single subject in a clear case. In re Proposed Initiative for 2011–2012 # 45, 274 P.3d 576, 579 (Colo.2012). The subject matter of an initiative must be necessarily and properly connected rather than disconnected or incongruous. Id. We do not determine the initiative's efficacy, construction, or future application. SeeIn re Proposed Initiative for 2009–2010 # 91, 235 P.3d 1071, 1076 (Colo.2010). But, like the constitutional single subject requirement for bills passed by the General Assembly, the single subject limitation applicable to initiatives prevents the proponents from combining multiple subjects to attract a “yes” vote from voters who might vote “no” on one or more of the subjects if they were proposed separately. In re Proposed Initiative for 1997–1998 # 84, 961 P.2d 456, 458 (Colo.1998). We must sufficiently examine an initiative to determine whether or not it violates the constitutional prohibition against initiative proposals containing multiple subjects. Id.
¶ 9 We begin our analysis in this case by examining the proponents' and Title Board's fundamental error in assuming that article XXI currently provides for the recall of both non-elected and elected officers. We then address sections 2 and 3 of Initiative # 76. We conclude that these sections propose new recall petition, election, and vacancy provisions, for the purpose of altering the requirements for triggering and conducting state and local recall elections. These provisions would repeal, replace, and preempt multiple but unspecified existing constitutional, statutory, and home rule charter provisions. These changes to the existing recall process constitute at least one subject. Then, we turn to the initiative's section 1. We conclude that it proposes to institute a new constitutional right to recall non-elected officers, in addition to elected officers. This is a second subject with a distinct and separate purpose not dependent upon or connected to the first subject.
¶ 10 The proponents attempt to unite these separate subjects under the description “recall of government officers” in the title and submission clause. We have previously found such umbrella proposals unconstitutional. For example, we have rejected attempts to pass disparate proposals with common themes such as “water,” In re Public Rights in Waters II, 898 P.2d 1076, 1080 (Colo.1995), or “revenue changes,” In re Amend TABOR 25, 900 P.2d 121, 125–26 (Colo.1995). Such initiatives combine proposals that voters might favor with those they would otherwise oppose, in order to achieve passage. SeeIn re Proposed Initiative for 2005–2006 # 55, 138 P.3d 273, 282 (Colo.2006). To avert such mischief, the single subject requirement limits the voters to answering “yes” or “no” to a straightforward, single subject proposal. SeeIn re Petition Procedures, 900 P.2d 104, 108 (Colo.1995). In the case before us, some voters might favor altering the requirements or procedures for recalling elected officers but not favor establishing a new constitutional right to recall non-elected officers, or vice-versa. Initiative # 76 unconstitutionally combines the two subjects in an attempt to attract voters who might oppose one of these two subjects if it were standing alone.
¶ 11 We turn first to the assertion that article XXI currently provides for the recall of non-elected officers.
¶ 12 In their briefs to us, the proponents and the Title Board argue that Initiative # 76 deals with a single subject: “the recall of government officers.” In making this contention,they assert that the right to recall non-elected officers is already contemplated by article XXI. For this proposition, they cite our decision in Groditsky v. Pinckney, 661 P.2d 279 (Colo.1983). However, they misconstrue our decision in Groditsky and, most significantly, they misread article XXI. Article XXI, sections 1 and 4, provide only that elected state and local officers are subject to recall.
¶ 13 Article XXI, section 1, provides:
Every elective public officer of the state of Colorado may be recalled from office at any time by the registered electors entitled to vote for a successor of such incumbent through the procedure and in the manner herein provided for, which procedure shall be known as the recall, and shall be in addition to and without excluding any other method of removal provided by law.
(Emphasis added).
Article XXI, section 4, provides:
The recall may also be exercised by the registered electors of each county, city and county, city and town of the state, with reference to the elective officers thereof, under such procedure as shall be provided by law.
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Every person having authority to exercise or exercising any public or governmental duty,...
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