VanWinkle v. Sage

• Decision Date: 21 June 2021
• Docket Number: Supreme Court Case No. 21SA125
• Citation: 489 P.3d 1217
• Court: Colorado Supreme Court
• Parties: In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2021-2022 #16 Janie VanWinkle, Carlyle Currier, Chris Kraft, Terri Diane Lamers, William Hammerich, and Joyce Kelly, Petitioners v. Alexander Sage and Brent Johannes, Respondents and Theresa Conley, David Powell, and Julie Pelegrin, Title Board.

489 P.3d 1217

In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2021-2022 #16Janie VanWinkle, Carlyle Currier, Chris Kraft, Terri Diane Lamers, William Hammerich, and Joyce Kelly, Petitioners

v. Alexander Sage and Brent Johannes, RespondentsandTheresa Conley, David Powell, and Julie Pelegrin, Title Board.

Supreme Court Case No. 21SA125

Supreme Court of Colorado.

June 21, 2021

Attorneys for Petitioners: Recht Kornfeld, P.C., Mark G. Grueskin, Denver, Colorado

Respondents Alexander Sage and Brent Johannes, pro se, Boulder, Colorado

Attorneys for Title Board: Natalie Hanlon Leh, Chief Deputy Attorney General, Michael Kotlarczyk, Assistant Attorney General, Peter G. Baumann, Campaign Finance Enforcement Fellow, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 In this opinion, we review the actions of the Title Board ("Board") in setting the title and ballot title and submission clause (collectively, "titles") for Initiative 2021-2022 #16 ("Initiative 16"). Initiative 16 proposes to amend Colorado's criminal animal cruelty statutes. Among other changes, it would (1) end certain exemptions for livestock, (2) create a safe harbor for the slaughter of livestock with various conditions, and (3) expand the definition of "sexual act with an animal" (a type of animal cruelty).

¶2 We conclude that Initiative 16 contains at least two subjects, which violates the single-subject rule of article V, section 1(5.5) of the Colorado Constitution. Although the central theme of the initiative is incorporating livestock into the animal cruelty statutes, redefining "sexual act with an animal" strays into a second subject by addressing the bodily integrity of all animals, not just livestock. Because these subjects are not necessarily and properly connected, there is the potential for the very kind of voter surprise against which the single-subject requirement seeks to guard – here, voters might not understand that what is nominally a livestock initiative also affects the care of all animals, or vice versa. We therefore reverse the actions of the Board.

I. Facts and Procedural History

¶3 Respondents, Alexander Sage and Brent Johannes, submitted Initiative 16 to the Board, which is responsible for "fix[ing] a proper fair title for each proposed law ..., together with a submission clause." § 1-40-106(1), C.R.S. (2020). The Board ruled that the initiative concerns a single subject and set titles.

¶4 Petitioners, Janie VanWinkle, Carlyle Currier, Chris Kraft, Terri Diane Lamers, William Hammerich, and Joyce Kelly, filed a motion for rehearing. See § 1-40-107(1)(a)(I), C.R.S. (2020). They argued that Initiative 16 contains three subjects: the removal of livestock exemptions from the animal cruelty statutes, a requirement that livestock live a quarter of their initiative-defined "natural lifespan[s]" before they can be slaughtered, and an expansion of the definition of "sexual act with an animal." They also claimed that the initiative's titles were misleading and contained impermissible catch phrases.

¶5 The Board tweaked Initiative 16's titles but reaffirmed the single-subject ruling.¹ Two of its three members, however, acknowledged that the single-subject issue was "close." Rehearing on Proposed Initiative 2021-2022 #16 before the Title Bd., at 1:25:53, 1:26:54 (Apr. 7, 2021), https://csos.granicus.com/MediaPlayer.php?view_id=1&clip_id=213 [https://perma.cc/B7T8-Q72L] (statements of David Powell and Theresa Conley).

¶6 Petitioners filed this original proceeding to challenge the Board's decision, see § 1-40-107(2), renewing their arguments that Initiative 16 spans multiple subjects and that the titles include impermissible catch phrases.

II. Analysis

¶7 We begin with the standard of review. Then, we discuss the single-subject requirement for initiatives. Finally, we describe Initiative 16 and analyze whether it contains multiple subjects. We conclude that it does.

A. Standard of Review

¶8 "We liberally construe the single subject requirement both because of the Title Board's considerable discretion in setting the title and the ballot title and submission clause and in order to avoid unduly restricting the initiative process." In re Title, Ballot Title & Submission Clause for 2019-2020 #315, 2020 CO 61, ¶ 17, ––– P.3d –––– ; see also § 1-40-106.5(2), C.R.S. (2020) ("It is the intent of the general assembly that section 1 (5.5) of article V ... be liberally construed, so as to avert the practices against which [it is] aimed and, at the same time, to preserve and protect the right of initiative ....").

¶9 "We will therefore overturn the Board's finding that an initiative contains a single subject only in a ‘clear case,’ " In re 2019-2020 #315, ¶ 17 (quoting In re Title, Ballot Title, & Submission Clause for 2013-2014 #76, 2014 CO 52, ¶ 8, 333 P.3d 76, 79 ), and "we employ all legitimate presumptions in favor of the propriety of the Board's actions," In re Title, Ballot Title & Submission Clause for 2009-2010 #91, 235 P.3d 1071, 1076 (Colo. 2010).

¶10 "[I]n our limited review of the Title Board's actions, we do not address the merits of the proposed initiative." In re 2019-2020 #315, ¶ 8. Nor do we "determine the initiative's efficacy, construction, or future application, which is properly determined if and after the voters approve the proposal." In re 2009-2010 #91, 235 P.3d at 1076. "However, we must examine the proposal sufficiently to enable review of the Title Board's action." Id. "In conducting this limited inquiry, we employ the general rules of statutory construction, giving words and phrases their plain and ordinary meanings." In re 2019-2020 #315, ¶ 8.

B. The Single-Subject Requirement

¶11 The Colorado Constitution reserves the initiative power to the people but prohibits measures that contain multiple subjects: "No measure shall be proposed by petition containing more than one subject ...." Colo. Const. art. V, § 1 (5.5). "If a measure contains more than one subject, ... no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls." Id.; see also § 1-40-106.5(1)(a) (" Section 1 (5.5) of article V ... require[s] that every ... law proposed by initiative ... be limited to a single subject ....").

¶12 This prohibition exists

[t]o forbid ... the practice of putting together ... subjects having no necessary or proper connection, for the purpose of enlisting in support of the [initiative] the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits.

§ 1-40-106.5(l)(e)(I). The single-subject requirement also "prevent[s] surprise and fraud from being practiced upon voters." § 1-40-106.5(1)(e)(II).

¶13 To decide whether an initiative addresses a single subject, we ask if its provisions are "necessarily and properly connected rather than disconnected or incongruous." In re 2019-2020 #315, ¶ 13 (quoting In re Title, Ballot Title & Submission Clause for 2015-2016 #73, 2016 CO 24, ¶ 14, 369 P.3d 565, 568 ); accord In re 2009-2010 #91, 235 P.3d at 1077 ("[W]hen an initiative's provisions seek to achieve purposes that bear no necessary or proper connection to the initiative's subject, the initiative violates the constitutional rule against multiple subjects."). "Said another way, the single-subject requirement is not violated unless the text of the measure ‘relates to more than one subject and has at least two distinct and separate purposes which are not dependent upon or connected with each other.’ " In re Title, Ballot Title & Submission Clause for 2005-2006 #74, 136 P.3d 237, 239 (Colo. 2006) (quoting In re Title, Ballot Title & Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to the Const. of State Adding Section 2 to Article VII (Petition Procs.), 900 P.2d 104, 109 (Colo. 1995) ).

¶14 Accordingly, "[w]e have held repeatedly that where a proposed initiative ‘tends to effect or to carry out one general objective or purpose,’ it presents only one subject." In re Title, Ballot Title & Submission Clause for 2017-2018 #4 , 2017 CO 57, ¶ 8, 395 P.3d 318, 321 (quoting In re Title, Ballot Title & Submission Clause, & Summary for 1999-00 #256, 12 P.3d 246, 253 (Colo. 2000) ). And "[a]n initiative proposing a comprehensive framework contains a single subject if all of its provisions relate directly to its single subject." In re 2009-2010 #91, 235 P.3d at 1076. Similarly, "an initiative will not be deemed to violate the single subject requirement merely because it spells out details relating to its implementation." In re 2019-2020 #315, ¶ 15.

¶15 "The [permissible] breadth of [an] initiative's objective, however, is not without limits." Id. at ¶ 16. "[W]here an initiative advances separate and distinct purposes, ‘the fact that both purposes relate to a broad concept or subject is insufficient to satisfy the single subject requirement.’ " In re 2009-2010 #91, 235 P.3d at 1076 (alteration omitted) (quoting In re Title, Ballot Title & Submission Clause, & Summary for 1997-1998 #64, 960 P.2d 1192, 1196 (Colo. 1998) ).

¶16 Finally, given the anti-logrolling and anti-fraud purposes of the single-subject requirement, our application of the necessarily-and-properly-related test has often taken into account whether voters might favor only part of an initiative and the potential for voter surprise. See, e.g., In re 2017-2018 #4, ¶ 14, 395 P.3d at 322 ; In re Title, Ballot Title, & Submission Clause for 2011-2012 #3, 2012 CO 25, ¶¶ 18-20, 274 P.3d 562, 567-68 ; In re 2009-2010 #91, 235 P.3d at 1079.

C. Initiative 16 Violates the Single-Subject Requirement

1. Initiative 16²

¶17 Initiative 16 would remove the animal cruelty statutes' exception for "accepted animal husbandry practices utilized by any person in the care of companion or livestock animals." See § 18-9-201.5(1), C.R.S. (2020). Similarly, the measure would end an exemption to certain sentencing provisions for "the treatment of livestock...