Milo v. Coulter

JUSTICE HOOD

delivered the Opinion of the Court.

T 1 This original proceeding requires us to review the Title Board's action setting the title, ballot title and submission clause for Initiative 2018-2014 #129.¹ ("Initiative #129") Initiative #129 seeks to amend the state constitution to add a provision defining "fee" as a "voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer."

«I 2 We hold that Initiative # 129 contains a single subject: the definition of a "fee." We also hold that the title clearly expresses Initiative #129's single subject. We thus affirm the action of the Title Board.

I. Background

T3 Proponents Peter Coulter and Lisa Brumfiel proposed Initiative # 129 to amend article X, section 20 of the Colorado Constitution, commonly known as the Taxpayer's Bill of Rights ("TABOR"). Initiative #129 seeks to amend TABOR to define the term "fee" and differentiate it from a tax:

The official definition of "fee" as used in the Colorado Constitution, Colorado Revised Statutes, Codes, Directives, and all Public Colorado Legal Documets [sic] is as follows:

A fee is a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer, which fee should reasonably approximate the payer's fair share of the costs incurred by the government in providing said specific benefit.

Ancillary and/or extraneous benefits, as those terms are defined by Blacks [sic] Law Dictionary, of any fee shall not be considered in determining the value of said fee.

T4 Initiative #129 then states that it "shall supersede conflicting constitutional, state statutory, court findings of fact, local charter, ordinance, or resolution, and other state and local provisions." Its purpose is to "specifically supersede the Colorado Supreme Courts [sic] findings of fact in Barber vs. Ritter." ²

15 Proponents submitted Initiative # 129 to the Secretary of State. The Title Board held a hearing and set title in accordance with section 1-40-106(1), C.R.S. (2013). The title mirrored Initiative # 129's definition of "fee," and the ballot title and submission clause made clear that Initiative # 129 was seeking to amend the Colorado Constitution.

T6 Petitioner Anthony Milo filed a motion for rehearing, arguing that Initiative # 129 contained multiple subjects. In the alternative, he contended that its title was misleading. After a hearing, the Title Board concluded that Initiative #129 contained a single subject and its title was clear.

T 7 Petitioner now seeks review of the Title Board's actions under section 1-40-107(2), C.R.S. (2013).

II. Standard of Review

T8 Our role in reviewing Title Board actions is limited. We employ all legitimate presumptions in favor of the propriety of the Title Board's actions and will overturn its finding that an initiative contains a single subject only in a clear case. In re Title, Ballot Title & Submission Clause for 2011-2012 # 3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565; In re Title, Ballot Title & Submission Clause for 2009-2010 # 45, 234 P.3d 642, 645 (Colo.2010). We liberally construe the single-subject requirement to "avoid unduly restricting the initiative process." In re Title, Ballot Title & Submission Clause for 2009-2010 # 24, 218 P.3d 350, 353 (Colo.2009).

19 In addition, the Title Board has considerable discretion to set the title, and the ballot title and submission clause. In re Title, Ballot Title & Submission Clause, & Summary Pertaining to the Proposed Initiative on Parental Choice in Educ., 917 P.2d 292, 294 (Colo.1996). We will reverse the Title Board's decision if the title is insufficient, unfair, or misleading. In re # 45, 234 P.3d at 648.

110 Our limited role in this process prohibits us from addressing the merits of a proposed initiative or suggesting how an initiative might be applied if enacted. In re Title, Ballot Title & Submission Clause for Proposed Initiative 2001-2002 # 43, 46 P.3d 438, 443 (Colo.2002). Although our role is limited, we "examine sufficiently an initiative's central theme to determine whether it contains hidden purposes under a broad theme." In re Title, Ballot Title & Submission Clause for 2007-2008 # 17, 172 P.3d 871, 875 (Colo.2007).

III. Analysis

¶11 Petitioner argues that Initiative # 129 contains a "virtually limitless" number of unrelated subjects because its definition of "fee" is broadly applicable. He notes that the definition will apply in constitutional, statutory, and common law contexts, as well as to "all public Colorado legal documents." He also argues that the title is misleading because it does not clearly express Initiative #129's "overwhelming breadth." Proponents counter that the breadth of Initiative # 129 is not at issue; the only issue is whether it contains a single subject. And although potentially broad in application, they argue that Initiative #129 contains a single subject-the definition of a "fee"-and that the title clearly expresses that subject.

112 We first address whether Initiative # 129 contains a single subject and conclude that it does. Next, we discuss the clear title requirement and find that the title is clear.

A. Initiative #129 Contains a Single Subject

{13 The Colorado Constitution prohibits initiatives "containing more than one subject." Colo. Const. art. V, § 1(5.5); see also § 1-40-106.5(1)(a), C.R.S. (2018) (requiring that proposed initiatives "be limited to a single subject").

114 This single-subject requirement serves two purposes: (1) it ensures that the initiative "depends upon its own merits for passage"; and (2) it "protects against fraud and surprise occasioned by the inadvertent passage of a surreptitious provision 'coiled up in the folds' of a complex bill." In re Title & Ballot Title & Submission Clause for 2005-2006 # 55, 138 P.3d 273, 277 (Colo.2006) (quoting In re # 43, 46 P.3d at 440). To these ends, an initiative may not group "distinct purposes under a broad theme" to cireumvent the single-subject requirement, nor can it "hide purposes unrelated to the [iJnitiative's central theme" to gain passage of a hidden provision. Id. at 277-78.

115 An initiative thus violates the single-subject requirement "when it (1) relates to more than one subject and (2) has at least two distinct and separate purposes." In re Title, Ballot Title & Submission Clause for 2007-2008 # 61, 184 P.3d 747, 750 (Colo.2008). By contrast, a proposed initiative that "tends to effect or carry out one general objective or purpose presents only one subject." In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 # 25, 974 P.2d 458, 463 (Colo.1999). The "provisions necessary to effectuate the purpose of the measure are properly included within its text." In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 # 256, 12 P.3d 246, 253 (Colo.2000). But they "must be 'necessarily and properly connected rather than 'disconnected or incongruous." In re Title, Ballot Title, Submission Clause for 2011-2012 # 3, 2012 CO 25, ¶ 9, 274 P.3d 562, 565 (2012).

1 16 Initiative #129 seeks to amend TABOR to add a provision defining "fee" and then apply that definition to a wide range of contexts, including "the Colorado Constitution, Colorado Revised Statutes, Codes, Directives and all public Colopado legal docu-mets [sic]." Despite that definition's broad applicability, its breadth, by itself, does not necessarily violate the single-subject requirement. See In re # 256, 12 P.3d at 254 (holding that an initiative does not violate the single-subject requirement simply because it covers a broad subject). Instead, we must determine whether the matters encompassed by the initiative are necessarily and properly connected to each other rather than disconnected or incongruous. See In re # 3, ¶ 9, 274 P.3d at 565.

117 After defining "fee," Initiative #129 provides the circumstances under which that definition will apply. Althorigh that definition applies broadly, its breadth does not necessarily make its provisions disconnected or incongruous. To the contrary, Initiative # 129's provisions are necessarily and properly connected with each other; it defines the term "fee" and then renders uniform that definition throughout Colgrado law. In other words, Initiative #129 "tends to effect or carry out one general objective or purpose"-that is, changing the definition of "fee." See In re # 256, 12 P.3d at 253-54.

118 Petitioner also appears to argue that Initiative # 129's breadth is simply an effort to group "distinct purposes under a broad theme." He does not provide concrete examples of Initiative #129's distinct purposes, however, but instead argues that the contexts to which its definition will apply-"public Colorado legal documents" and "court findings of fact," for instance-are so vague that its effect is essentially unknowable. But we do not review an initiative for artful drafting, nor can we address the merits of a proposed initiative or suggest how it might be applied if enacted. See In re # 43, 46 P.3d at 443. The mere fact that an initiative may change the law does not mean that it violates the single-subject requirement, even if it "makes policy choices that are not inevitably interconnected." See In re # 256, 12 P.3d at 254. In any event, we cannot consider "[the effects this measure could have on Colorado ... law if adopted by voters." Those concerns, however valid, "are irrelevant to our review of whether [the proposed initiative] and its Titles contain a single subject." In re # 3, ¶ 20 n. 2, 274 P.3d at 568 n. 2.

$19 We hold that Initiative #129 contains a single subject: the definition of a “fee.”

B. The Title Clearly Expresses Initiative # 129's Single Subject

" 20 Petitioner argues that the title is misleading because it is silent about Initiative # 129's broad application to Colorado constitutional, statutory, and common law, as well as to "all public Colorado legal documents."

121 The Colorado Constitution dictates that an initiative's single subject shall be clearly expressed in its title See Colo. Const. art. V, § 1(5.5); In re Title, Ballot Title & Submission Clause for 2011-2012 # 45, 2012 CO 26, ¶ 21, 274 P.3d 576, 581.

122 When setting a title, the Title Board "shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a 'yes/for' or 'no/against' vote will be unclear." § 1-40-106(8)(b), C.R.S. (2018). The title "shall correctly and fairly express the true intent and meaning" of the initiative. Id. The title should enable the electorate, whether familiar or unfamiliar with the sub-jeet matter of a particular proposal, to intelligently determine whether to support or oppose such a proposal. In re # 45, 234 P.3d at 648.

128 When reviewing a clear title challenge, we give "great deference" to the Title Board in the exercise of its drafting authority, and we will reverse the Title Board if the title is "insufficient, unfair, or misleading." Id.

124 Initiative #129 is captioned "Definition of 'Fee/" and its title informs prospective voters that the initiative seeks to amend the state constitution by adding that definition to it. The submission clause rephrases the title in question form:

Shall there be an amendment to the Colorado constitution defining a "fee" as a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer, which fee should reasonably approximate the payer's fair share of the costs incurred by the government in providing the benefit?

125 The title conveys Initiative #1209's singular purpose: to provide a uniform definition of "fee." And although the title does not list every context in which the definition of "fee" may conceivably apply, a title need not "spell out every detail of a proposal." In re # 256, 12 P.3d at 256. Besides, the title makes clear that the initiative is seeking to amend the Colorado Constitution, and a constitutional amendment necessarily will apply broadly and trump conflicting state or local provisions.

126 To the extent that Initiative #129 also applies to "public Colorado legal doeu-ments," we reiterate our limited role. Unless clearly misleading, we "will not rewrite the titles to achieve the best possible statement of the proposed measure's intent." Id. at 255. The title is not so misleading that we feel compelled to interfere with the Title Board's choice of language. And that language fairly reflects the initiative's purpose: to provide a uniform definition of "fee."

T 27 We hold that the title clearly expresses Initiative # 129's single subject.

IV. Conclusion

128 For the reasons stated, we affirm the action of the Title Board.

APPENDIX-Initiative # 129 and Title

BE IT ENACTED BY THE PEOPLE OF THE STATE OF COLORADO:

SECTION 1. IN THE CONSTITUTION OF THE STATE OF COLORADO, AMEND ARTICLE X SECTION 20 ADD AS FOLLOWS:

THE OFFICIAL DEFINITION OF "FEE" AS USED IN THE COLORADO CONSTITUTION, COLORADO REVISED STATUTES, CODES, DIRECTIVES AND ALL PUBLIC COLORADO LEGAL DOCU-METS IS AS FOLLOWS:

A FEE IS A VOLUNTARILY INCURRED GOVERNMENTAL CHARGE IN EXCHANGE FOR A SPECIFIC BENEFIT CONFERRED ON THE PAYER, WHICH FEE SHOULD REASONABLY APPROXIMATE THE PAYER'S FAIR SHARE OF THE COSTS INCURRED BY THE GOVERNMENT IN PROVIDING SAID SPECIFIC BENEFIT.

ANCILLARY AND/OR BENEFITS, AS THOSE TERMS ARE DEFINED BY BLACKS LAW DICTIONARY, OF ANY FEE SHALL NOT BE CONSIDERED IN DETERMINING THE VALUE OF SAID FEE.

SELE-EXECUTING, SEVERABILITY, CONFLICTING PROVISIONS.

ALL PROVISIONS OF THIS SECTION ARE SELFE-EXECUTING EXCEPT AS SPECIFIED HEREIN, ARE SEVERA-BLE, AND, EXCEPT WHERE OTHERWISE INDICATED IN THE TEXT, SHALL SUPERSEDE CONFLICTING CONSTITUTIONAL, STATE STATUTORY, COURT FINDINGS OF FACT, LOCAL CHARTER, ORDINANCE, OR RESOLUTION, AND OTHER STATE AND LOCAL PROVISIONS. ALL PROVL-SIONS OF THIS SECTION SPECIFICALLY SUPERSEDE THE COLORADO SUPREME COURTS FINDINGS OF FACT IN BARBER VS. RITTER.

EFFECTIVE DATE.

UNLESS OTHERWISE PROVIDED BY THIS SECTION, ALL PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UPON OFFICIAL DECLARATION OF THE VOTE HEREON BY PROCLAMATION OF THE GOVERNOR, PURSUANT TO SECTION 1(4) OF ARTICLE V.

Ballot Title Setting Board

Proposed Initiative 2013-2014 #129

The title as designated and fixed by the Board is as follows:

An amendment to the Colorado constitution defining a "fee" as a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer, which fee should reasonably approximate the payer's fair share of the costs incurred by the government in providing the benefit.

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 defining a "fee" as a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer, which fee should reasonably approximate the payer's fair share of the costs incurred by the government in providing the benefit?

JUSTICE HOBBS dissents, and CHIEF JUSTICE RICE joins in the dissent.

1 . Initiative # 129 and the title are attached as an appendix.

2 . In Barber v. Ritter, 196 P.3d 238 (Colo.2008), we held "that a charge is a 'fee,' and not a 'tax,' when the express language of the charge's enabling legislation explicitly contemplates that its primary purpose is to defray the cost of services provided to those charged." Id. at 250. We left open the possibility that, despite a statutory label of "fee," a charge may be a "tax" if it "is unreasonably in excess of the cost of services the charge is designed to defray." Id. at 250 n. 15.