DocketNumber： No. 00SA163
Citation Numbers： 4 P.3d 1094
Judges： Bender, Hobbs, Martinez
Filed Date： 7/10/2000
Status： Precedential
Modified Date： 1/2/2022
delivered the Opinion of the Court.
Two registered electors, Jorge L. Garcia and Susan Marie Pacheco (collectively, Garcia) challenge the action of the Title Board in setting the title and ballot title and submission clause (titles) and summary for Initiative 1999-2000 #258(A), an "Amendment of the Colorado Constitution for English Education" (Initiative #
I.
The Title Board set the titles and summary for Initiative # 258(A) at its hearing of April 19, 2000. On May 3, 2000, it granted Garcia's petition for rehearing in part. Garcia filed this original proceeding with us on May 8, 2000, pursuant to section 1-40-107(2), 1 C.R.S. (1999).
Initiative # 258(A) proposes a constitutional amendment that would require all public school students in Colorado to be taught in English. Students whose primary language is other than English would be taught through an English immersion program designed to teach English and academic subjects at a level appropriate to the proficiency of the class of those whose primary language is other than English.
The English immersion program for each student is to be temporary, not normally to exceed one year, after which the student would join the standard classroom of native English speakers and those who have acquired enough fluency in English to participate without additional accommodations. Teachers and instructional aides may use languages other than English to assist students by translating and clarifying.
Foreign language teaching to English speakers is exempted from the English instruction directive, but a student whose primary language is other than English may not participate in any foreign language programs for more than one class period per day without a parental waiver.
The parental waiver exception allows parents to opt children out of the English immersion program and transfer them into a bilingual program at the same school or another school, if a bilingual program is available.
Initiative #258(A) prohibits a school district or school from being required to provide a bilingual program. It provides a cause of action for enforcement of its provisions. If approved by the voters, Initiative #258(A) would take effect upon proclamation by the Governor and would apply to the public schools in school districts with school terms that begin more than sixty days after the date of the Governor's proclamation.
IL.
We hold that Initiative # 258(A) does not contain more than one subject. We also hold that the titles and summary are unclear and misleading regarding a principal feature of the proposed constitutional amendment, and that they employ a prohibited catch phrase. Consequently, we reverse the action of the Title Board. *- ‘
A. Standard of Review
Colorado's Constitution and statutes prohibit the Title Board from setting the titles and summary for an initiative containing more than one subject that cannot be clearly expressed in the titles See Colo. Const. art. V, section 1(5.5); § 1-40-106.5(8), 1 C.R.S. (1999). Accordingly, we make two closely interdependent inquiries: one commanding that the subject treated in the body of the proposed initiative be clearly expressed in its titles, and the other forbidding the union of separate and distinct subjects in the same proposed initiative. See In re Ballot Title 1999-2000 # 25, 974 P.2d 458, 460-61 (Colo.1999).
The single-subject requirement prevents the proponent of an initiated constitutional amendment or statute from joining two distinct and separate purposes that are not dependent upon or connected with each other. See In re Ballot Title 1999-2000 # 104, 987 P.2d 249, 253 (Colo.1999). Implementing provisions that are directly tied to the initiative's central focus are not separate subjects. See In re Ballot Title 1999-2000 # 200A, 992 P.2d 27, 30-31 (Colo.2000).
In conducting our single-subject review, we do not make policy-that role belongs to the initiative sponsors and, ultimately, to the voters who consider a proposed constitutional amendment or statute at the polls. Nor do we determine the initiative's efficacy, construction, or future application-
The titles must be sufficiently clear and brief for the voters to understand the principal features of what is being proposed; a material omission can create misleading titles. See In re Ballot Title 1999-2000 # 29, 972 P.2d 257, 266 (Colo.1999). In setting the titles, the Board must "correctly and fairly express the true intent and meaning" of the proposed initiative and must "consider the public confusion that might be caused by misleading titles." $ 1-40-106(8)(b), 1 C.R.S. (1999); In re Ballot Title 1999-2000 # # 245(f) & 245(g), 1 P.3d 739, 743 (Colo.2000). Titles shall "unambiguously state the principle of the provision sought to be added, amended or repealed." In re Ballot Title 1999-2000 # 104, 987 P.2d at 254.
Titles may not contain a catch phrase that unfairly prejudices the proposal in its favor; this contravenes section 1-40-106(8)(a). See In re Ballot Title 1999-2000 # # 227 & 228, 3 P.3d 1, 6-7 (Colo.2000). A "catch phrase" consists of "words which could form the basis of a slogan for use by those who expect to carry out a campaign for or against an initiated constitutional amendment." In re Ballot Title 1997-1998 # 105, 961 P.2d 1092, 1100 (Colo.1998); see also In re Ballot Title 1997-1998 # 26, 954 P.2d 586, 598 (Colo.1998).
B. Single Subject
The central focus of Initiative # 258(A) is the instruction of all public school students using the English language. To this end, the initiative creates classrooms of non-English speaking students who are taught English and the other subjects of the school's curriculum in a "structured English immersion" program designed to bridge students into English language mainstream classrooms within one year.
Garcia claims that the principal purpose of the amendment, its directive to deliver all public school instruction in English, is joined with three other purposes in the amendment: (1) a fundamental reallocation of the power of school boards to control the instruction of students in their districts; (2) the abolition of bilingual education in the public schools; and (8) creation of a cause of action for enforcement of the initiative's provisions.
We agree that adoption of Initiative # 258(A) would impact the traditional powers of school boards. Those powers presently include the power to require bilingual education in public schools. Initiative # 258(A) provides that "[nJo school or school district shall be required to offer a bilingual education program." The initiative defines "bilingual education" as "any language acquisition program or other program of instruction in which some instruction, textbooks, and/or teaching materials are in the English-learner's native language."
This directive to teach all subjects in English, subject to the English immersion waiver exception and the exception for teaching foreign languages, would constrain schools, school districts, and school boards. But the mere fact that a constitutional amendment may affect the powers exercised by government under pre-existing constitutional provisions does not, taken alone, demonstrate that a proposal embraces more than one subject. All proposed constitutional amendments or laws would have the effect of changing the status quo in some respect if adopted by the voters.
Instead, in applying our standards for examining an alleged single-subject violation, we look to whether the purposes of the amendment are "distinct," "separate," or "unconnected." See In re "Public Rights In Waters II," 898 P.2d 1076, 1078-79 (Colo.1995). The effect of altering the school districts' power to require bilingual education follows directly and logically from the central focus of Initiative # 258(A), which is to require instruction for all public school students (except the teaching of foreign languages) to be conducted in English. This effect is not a separate, distinct, or unconnected subject, but a logical incident of adopting structured English immersion as the chosen method of teaching non-English speaking students. Accordingly, we hold
Garcia's second single-subject argument is that, while Initiative # 258(A) holds out the ability for parents to transfer their children from the English immersion program into a bilingual education program, the initiative in fact contains the separate, distinct, and unconnected surreptitious purpose of abolishing bilingual education programs throughout Colorado's public school system.
We agree that the initiative does contain an apparent inconsistency between providing, on the one hand, for a waiver from the English immersion program in order to transfer into a bilingual program, and prohibiting school districts and schools from being required to provide bilingual programs, on the other. Placing limits on bilingual programs, however, is not a purpose separate, distinct, and unconnected from the initiative's central focus of providing for all public school instruction to be conducted in English. To the contrary, such limits appear to be connected to the initiative's central focus. Thus, we hold that the initiatives limits on bilingual education do not constitute a separate subject.
Garcia's final contention in regard to multiple subjects is that the initiative's cere-ation of a cause of action for enforcement of its provisions constitutes a separate subject. As we have noted, however, implementation provisions tied to an initiative's central focus do not violate the single-subject requirement. See In re Ballot Title 1999-2000 # 200A, 992 P.2d at 30-31. This initiative presents an enforcement mechanism essentially identical to that considered and approved in In re Ballot Title 1999-2000 # 200A. Its inclusion here is not a separate subject.
Accordingly, we hold that Initiative # 258(A) does not violate the single-subject requirement. f to*
C. Fair, Clear, Accurate Titles and Summary
Determining that the initiative does not contain multiple subjects does not end our inquiry. The Board's chosen language for the titles and summary must be fair, clear, and accurate, and must not mislead the voters. See In re Ballot Title 1999-2000 # 29, 972 P.2d at 259. The titles and summary are critical to the voters' accurate understanding 'of a proposal. Eliminating a key feature of the initiative from the titles is a fatal defect if that omission may cause confusion and mislead voters about what the initiative actually proposes. See In re Ballot Title 1997-98 # 62, 961 P.2d at 1082.
Garcia argues that the titles and summary for initiative # 258(A) do not accurately state the proposal and will mislead the voters. We agree. The titles and summary do not state, paraphrase, or summarize the initiative's provision that "no school or school district shall be required to offer a bilingual education program."
"'This omission of a key feature of Initiative # 258(A) is material, and renders the titles and summary misleading. 'The initiative and the titles recite that parents of non-English speaking children may opt out of the English immersion program into a bilingual program. But the initiative provides that no school district or school "shall be required to offer a bilingual education program." Thus, unless schools voluntarily offer a bilingual program-a decision which will, under the initiative, apparently have to occur school-by-school and which will thus depend on individual school resources and the predilections of individual school principals and faculty-parents of non-English speaking children may have no meaningful choice, despite the initiative's seeming provision of such a choice.
Due to the omission from the titles of the initiative's prohibition against bilingual programs being required, voters could reasonably conclude that Initiative #258(A) does not alter the authority of school boards to implement the initiative's opt-out provision by requiring bilingual programs. Although the titles need not state every detail of an initiative or restate the obvious, they must not mislead the voters or promote voter confusion. See In re Ballot Title 1999-2000 # 29, 972 P.2d at 266. Titles that contain a "material and significant omission, misstatement, or misrepresentation" cannot stand. See In re Ballot Title 1997-98 # 62, 961 P.2d at 1082.
The Title Board's failure here to articulate in the titles that school districts and schools
We hold that the titles are materially defective for failure to include a key feature of the initiative, which results in misleading and confusing the voters.
D. Catch Phrase
"It is well established that the use of catch phrases or slogans in the title, ballot title and submission clause, and summary should be carefully avoided by the Board." In re Amend Tabor No. 32, 908 P.2d 125, 130 (Colo.1995). This rule recognizes that the particular words chosen by the Title Board should not prejudice electors to vote for or against the proposed initiative merely by virtue of those words' appeal to emotion. See In re Ballot Title 1999-2000 # 215, 3 P.3d 11, 14 (Colo.2000). "Catch phrases" are words that work to a proposal's favor without contributing to voter understanding. By drawing attention to themselves and triggering a favorable response, catch phrases generate support for a proposal that hinges not on the content of the proposal itself, but merely on the wording of the catch phrase.
Catch phrases may also "form the basis of a slogan for use by those who expect to carry out a campaign for or against an initiated constitutional amendment," thus further prejudicing voter understanding of the issues actually presented. In re Ballot Title 1999-2000 # # 227 & 228, 3 P.3d at 6-7; In re Proposed Initiative on Casino Gaming, 649 P.2d 303, 308 (Colo.1982). Slogans are catch phrases tailored for political campaigns-brief striking phrases for use in advertising or promotion. They encourage prejudice in favor of the issue and, thereby, distract voters from consideration of the proposal's merits.
We determine the existence of a catch phrase or slogan in the context of contemporary political debate. See In re Ballot Title 1999-2000 # # 227 & 228, 3 P.3d
at 7; In re Workers Comp Initiative, 850 P.2d 144, 147 (Colo.1993). We approach the potential existence of a catch phrase cautiously. See In re Ballot Title 1999-2000 # # 227 & 228, 3 P.3d at 7. Our task is to recognize terms that provoke political emotion and impede voter understanding, as opposed to those which are merely descriptive of the proposal. See id.
Here, the words "as rapidly and effectively as possible" are included in the first clause of the Board's titles. They appear in the title as follows:
An amendment to the Colorado Constitution concerning English language education, and in connection therewith, requiring all children in Colorado public schools to be taught English as rapidly and effectively as possible ....
(Emphasis added.) Counterpart language appears in the submission clause. These words operate as both a catch phrase and a slogan. They mask the policy question regarding whether the most rapid and effective way to teach English to non-English speaking children is through an English immersion program. This question is a subject of great public debate. By including the "as rapidly and effectively as possible" language in the titles for Initiative # 258(A), the Title Board tips the substantive debate surrounding the issue to be submitted to the electorate. While we agree that the initiative contains this language, the Title Board is not free to include this wording in the titles if, as here, it constitutes a catch phrase. See In re Proposed Initiative on "Obscenity," 877 P.2d 848, 850-51 (Colo.1994).
IIL.
Accordingly, we reverse the action of the Title Board.
APPENDIX
Proposed Initiative "1999-2000-# 258(A)"
The title as designated and fixed by the Board is as follows:
The ballot title and submission clause as designated and fixed by the Board is as follows:
SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING ENGLISH LANGUAGE EDUCATION, AND IN CONNECTION THEREWITH, REQUIRING ALL CHILDREN - IN - COLORADO - PUBLIC SCHOOLS TO BE TAUGHT ENGLISH AS RAPIDLY AND EFFECTIVELY AS POSSIBLE; REQUIRING EVERY CHILD TO BE TAUGHT IN ENGLISH, EXCEPT FOR CERTAIN CHILDREN WHO PRIMARILY SPEAK A LANGUAGE OTHER THAN ENGLISH; REQUIRING SUCH CHILDREN TO BE EDUCATED THROUGH A SPECIFICALLY DESIGNED - ENGLISH - IMMERSION PROGRAM DURING A TEMPORARY TRANSITION PERIOD NOT NORMALLY INTENDED TO EXCEED ONE YEAR AND TO THEREAFTER TRANSFER SUCH CHILDREN WHO HAVE ACQUIRED A GOOD WORKING KNOWLEDGE OF ENGLISH TO AN ENGLISH LANGUAGE - MAINSTREAM - CLASSROOM; EXCEPTING CERTAIN CHILDREN WHO PRIMARILY SPEAK A LANGUAGE OTHER THAN ENGLISH FROM SUCH ENGLISH IMMERSION PROGRAM WHEN THE PARENT OR LEGAL GUARDIAN PROVIDES A WRITTEN INFORMED CONSENT WAIVER; ESTABLISHING THE PARENT OR LEGAL GUARDIANS LEGAL STANDING TO SUE FOR ENFORCEMENT OF THE MEASURE AND, IF SUCCESSFUL, TO COLLECT ATTORNEYS FEES AND ACTUAL DAMAGES; - ESTABLISHING THAT THE AMENDMENT SHALL NOT AFFECT ANY CHARTER SCHOOL: SPECIFYING THAT THE AMENDMENT SHALL NOT AFFECT ANY FOREIGN LANGUAGE INSTRUCTION: PROGRAM,
The summary prepared by the Board is as follows:
The measure amends the Colorado constitution by declaring that the English language is the common language of the United States and of Colorado and that English proficiency is a prerequisite for economic opportunity. In addition, the measure declares that full proficiency in a new language is best developed through high levels of classroom exposure to the language at an early age.
The measure requires all children in Colorado public schools to be taught English as rapidly and effectively as possible.
The measure defines "English-learner" to mean a child who is not able to participate meaningfully in an English language mainstream classroom and primarily speaks a language other than English. The measure defines "structured English immersion" to mean a program of instruction specifically designed to teach English and academic subjects to English-learners, in which all instruction is in English at a level appropriate to the English proficiency of the class of English-learners. The measure specifies that English-learners shall be educated through a program of structured English immersion during a temporary transition period not normally to exceed one year. The measure specifies that all students, except students whose parents or legal guardians have given written informed consent and signed a written waiver, shall be taught in English,. Upon acquiring a good working knowledge of English, the measure requires English-learners to be transferred to English language mainstream classes. The measure specifies that nothing shall be construed to impose or mandate any limit on the amount of time an English-learner may receive specialized assistance in order to learn English or academic subject matter.
The measure allows a student to be excepted from the structured English immersion education requirement upon the prior written informed consent of the student's parent or legal guardian. The measure identifies requirements of the written consent waiver, including a mandatory visit by the parent or legal guardian to the school to apply for the waiver and the provision to the parent or legal guardian, in a language they can understand, of a description of the educational materials and program of instruction offered at the school or at another school in the same school district. The measure specifies that if a parent has executed a waiver, the child may be transferred to classes where the child is taught English and other subjects through bilingual education or other generally recognized methodologies permitted by law. The measure requires schools that do not offer bilingual education to allow a parent to transfer his or her child to a school within the child's school district that does offer such a program, if one is available.
The measure specifies that nothing shall be construed to affect foreign language instruction programs designed to teach English-speakers another language and provides that native speakers of other languages who do not have a good working knowledge of English shall not be allowed to participate in any foreign language program for more than one class period per day without prior written informed consent of such child's parent or legal guardian.
The measure specifies that nothing shall be construed to prevent a teacher or instructional aide from providing supplemental assistance in the native language to English-learners for purposes of translation and clarification or to prevent school personnel from
The measure grants a child's parent or legal guardian the legal standing to sue for enforcement of the provisions of this measure. If successful, the measure authorizes the court to award the parent or legal guardian normal and customary attorneys' fees and actual damages.
The measure specifies that the constitutional amendment shall take effect upon proclamation of the vote by the governor and shall apply to public schools in school districts with school terms commencing on or after sixty calendar days of such proclamation.
The Department of Local Affairs has determined that there would be no fiscal impact on local governments other than school districts resulting from the enactment of this measure. ~
The Office of State Planning and Budgeting has determined that full compliance with the language of the measure would likely have a state fiscal impact. However, the Office of State Planning and Budgeting has determined that it is not possible to estimate the magnitude of the fiscal impact of the measure at this time because the specifics of the implementation and enforcement of this measure would be decided by school districts, the General Assembly, and the Governor at a future date.
Hearing April 19, 2000:
Single subject approved; staff draft amended; titles and summary set.
Hearing adjourned 9:55 p.m.
Hearing May 3, 2000:
Motion for Rehearing granted in part to the extent that titles and summary were amended in response to grounds stated in part IV of the Motion, and denied with respect to all other grounds.
Titles and summary amended.
Hearing adjourned 6:29 p.m.
The text of Initiative # 258(A) is as follows:
Be it Enacted by the People of the State of Colorado:
Section 1. Amendment of the Colorado Constitution for English Education.
Article IX of the Constitution of the state of Colorado is amended by the addition of a new section to read:
Section 17. English Language Education. (1) General Declarations. The English language is the common language of the United States and of Colorado, and proficiency in English is a prerequisite for economic opportunity. English proficiency is one of the most important skills that public schools provide students, regardless of their ethnicity or national origin. Full proficiency in a new language, such as English, is best developed through high levels of exposure to that language in the classroom at an carly age. The current high dropout rates and low English proficiency levels of many immigrant children- demonstrate that existing programs in many public schools do a poor job of educating immigrant children. Immigrant parents are cager to have their children acquire a good knowledge of English as quickly as possible, so their children may participate fully in the American Dream of economic and educational advancement.
(2) Definitions. For purposes of this seetion, the following terms have the following definitions:
(a) "Bilingual education" means any language acquisition program or other program of instruction in which some instruction, textbooks, and/or teaching materials are in the English-learner's native language.
(b) "English language mainstream classroom" means a standard classroom-that is, one in which the language of instruction is English and the students are native-English-speakers or have acquired enough fluency in English to be able to participate meaningfully in the program of instruction without add1— tional accommodations. °
- (c) "English-learner" means a child who is not able to participate meaningfully in an English language mainstream classroom and pmmamly speaks a language other than English. .
(d) "Structured English immersion" means a program of instruction specifically designed
(3) English language education. (a) All children in the state's public schools shall be taught English as rapidly and effectively as possible.
(b) Subject to the exceptions provided in subsection (4), all children in the state's pub-lie schools shall be taught in English.
(c) Children who are English-learners shall be educated through a program of structured English immersion during a temporary transition period not normally to exceed one year. Once English-learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms.
(4) Exceptions. (a) The requirements of subsection (38) may be waived with the prior written informed consent, to be provided annually, of the child's parent or legal guardian.
(b) Such informed consent shall require that:
I. The parent or legal guardian must visit the school to apply for the waiver; and,
II. The parent or legal guardian shall be provided by the school with a full de-seription, in a language they can understand, of the educational materials and program of instruction offered at the school or at other schools within the same school district.
(c) If after such a visit, the parent or legal guardian wishes the child to be in a program of instruction other than that required in subsection (8), the parent or legal guardian may waive the requirements of subsection (8) by executing a written waiver provided by the school district that indicates the parent's or legal guardian's choice. If a parent has executed a written waiver, the child may be transferred to classes where the child is taught English and other subjects through bilingual education or other generally recognized educational methodologies permitted by law. Schools that do not offer bilingual education must allow parents to transfer their children to a school within the district that offers this programs, if one is available. Parents shall be informed in a language they can understand of their right to refuse to agree to a waiver of the requirements of subsection (8). No school or school district shall be required to offer a bilingual education program.
(d) Nothing in this section shall be construed to affect any foreign language instruction program designed to teach English-speakers another language. Native speakers of other languages who do not already have a good working knowledge of Emglish may not participate in any foreign language programs for more than one class period per day without a parental waiver as specified in this subsection.
(e) Nothing in this subsection (4) shall be construed to prevent any teacher or instructional aide from providing supplemental assistance in the native language to English-learners for the purposes of translation and clarification. Nor shall this subsection (4) be construed to prevent school personnel from using languages other than English for non-instructional purposes, including communicating with parents or legal guardians.
(£) Nothing in this subsection (4) shall be construed as imposing or mandating any limits on the amount of time English-learners may receive specialized assistance in order to learn English or academic subject matter. Students may continue to receive specialized language assistance after they exit the structured English immersion program.
(5) Legal standing and parental enforcement. If a child has been denied an English language education under subsection (3), the child's parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this section. If successful, the parent or legal guardian shall be awarded normal and customary attorneys' fees and actual damages, but not punitive or consequential damages.
(6) Charter schools. Nothing in this seetion shall affect the creation, curriculum, or the operation of charter schools.
(7) Interpretation. Under cireumstances in which portions of this section are subject to conflicting interpretations, subsection (8)
Section 2. Effective date-applicability. This act shall take effect upon proclamation by the Governor, and shall apply to public schools in school districts with school terms beginning more than sixty days after such date.
. The titles, summary, and Initiative # 258(A) are attached as Appendix A.
. Garcia lists the following issues for review:
1. Did the Ballot Title Setting Board (the "Board") incorrectly determine that Initiative 1999-2000 #258(A) constitutes a single subject as required by Article V, section 1(5.5) of the Colorado Constitution and C.R.S. § 1-40-106.52 Particularly, does the initiative contain at least three distinct and separate subjects:
a. a mandate that "program{s] of structured English immersion" shall be developed and instituted in the state's public schools for children who primarily speak another language and who would not be able to participate meaningfully in an "English language mainstream classroom";
b. a particularized override of the fundamental constitutional structure and allocation of authority established by Article IX, section 15 of the Colorado Constitution-with no disclosure whatsoever in the title, ballot title and submission clause, or summary-to remove from local school boards their constitutionally vested power to require any of the schools in their districts to offer bilingual education programs (ie., any classroom instruction in a child's native language if other than English); and
c. - the establishment of a new constitutionally sanctioned civil cause of action against schools and school districts.
2. Did the Board incorrectly overrule Petitioners' objection that the title, ballot title and submission clause, and summary do not fairly express the true intent and meaning of Initiative 1999-2000 #258(A) by failing to disclose the intent and effect of the initiative to fundamentally alter the constitutional structure and allocation of power to local school boards over "control of instruction in the public schools of their respective districts"-and thus to override Article IX, section 15 of the Colorado Constitution-with regard to the provision of bilingual education programs?
3. Did the Board incorrectly overrule Petitioners' objection that the title, ballot title and submission clause, and summary are unfair and prejudicial in that they explicitly and officially characterize the programs of "structured English immersion" mandated by Initiative 1999-2000 # 258(A) as programs under which children will be taught English "as rapidly and effectively as possible"?
4. Did the Board incorrectly overrule Petitioners' objection that the title and the ballot title and submission clause do not fairly express the true intent and meaning of Initiative 1999-2000 # 258(A), to require the design and full implementation of the mandated "structured English immersion" programs within extreme time constraints?
. - English Language Education in Public Schools