Opinion
No. 98SA499
March 22, 1999
Original Proceeding Pursuant to 1-40-107(2), 1 C.R.S. (1998) Appeal from the Ballot Title Setting Board
ACTION REVERSED AND REMANDED WITH DIRECTIONS
Susan E. Burch, Denver, Colorado, Attorney for Petitioner.
Douglas Bruce, Pro Se, Colorado Springs, Colorado.
No appearance by or on behalf of Respondent Jeffrey Wright.
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Christine M. Arguello, Deputy Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Title Board.
Petitioner, John S. Outcelt, brought this original proceeding under section 1-40-107(2), 1 C.R.S. (1998). Petitioner seeks review of the Title Board's action in fixing the title, ballot title and submission clause, and summary ("titles and summary") for a proposed ballot initiative designated "1999-2000 #37" (Initiative #37). Petitioner argues: (1) that this proposed initiative violates the constitutional single-subject requirement because it contains more than one subject, including subjects already found by this court to constitute impermissible additional subjects; (2) that this proposed initiative fails to conform to section 20(3)(c) of article X of the Colorado Constitution; and (3) that the titles and summary fail to clearly express the meaning of the initiative. We agree with Petitioner's first and third contentions. Accordingly, we reverse the Board's action.
The text of Initiative #37 and the titles and summary designated and fixed by the Board are attached hereto as an appendix.
Initiative #37 seeks to amend article X, section 20, of the Colorado Constitution by adding a new paragraph (d) to subsection (8). We have recently found three earlier versions of this initiative to contain multiple subjects in violation of article 5, section 1(5.5), of the Colorado Constitution. See In re Proposed Initiative for 1999-2000 No. 25, No. 98SA388, 1999 WL 86675, at *1 (Colo. Feb. 22, 1999); In re Proposed Initiative for 1997-98 No. 84, 961 P.2d 456, 460-61 (Colo. 1998); In re Proposed Initiative for 1997-98 No. 30, 959 P.2d 822, 826-27 (Colo. 1998). These three cases are directly controlling here. Applying this precedent, we find that Initiative #37 contains at least three subjects: it creates a tax cut, it imposes new criteria for voter approval of revenue and spending increases, and it imposes likely reductions in state spending on state programs. Thus, we hold that Initiative #37 is unconstitutional because it contains multiple subjects.
Article X, section 20 of the Colorado Constitution is entitled "The Taxpayer Bill of Rights" and is commonly known as Amendment 1.
Here, the Board should have applied our case law to find that Initiative #37 contained multiple subjects. See 1-40-106.5(3), 1 C.R.S. (1998). Under such circumstances, the Board should not have fixed a title. See In re Proposed Initiative for 1999-2000 No. 25, 1999 WL 86675, at *13; In re Proposed Initiative for 1997-98 No. 30, 959 P.2d at 828.
Putting aside the issue of multiple subjects, we turn to Petitioner's contention that the titles and summary fail to clearly express the meaning of the initiative. We agree. In fixing titles and summary, the Board's duty is "to capture, in short form, the proposal in plain, understandable, accurate language enabling informed voter choice." In re Proposed Initiative for 1999-2000 No. 29, No. 98SA416, 1999 WL 68793, at *10 (Colo. Feb. 16, 1999). Here, perhaps because the original text of the proposed initiative is difficult to comprehend, the titles and summary are not clear. In particular, the titles and summary fail to convey to voters the initiative's likely impact on state spending on state programs. Therefore, we hold that the titles and summary may not be presented to the voters as currently written. Cf. In re Proposed Initiative for 1999-2000 No. 25, 1999 WL 86675, at *13-14.
Thus, we remand this matter to the Board with directions to strike the titles and summary and to return Initiative #37 to its proponent.
APPENDIX PROPOSED INITIATIVE 1999-2000 # 37
Initiative #37 seeks to amend article X, section 20 of the Colorado Constitution by adding the following paragraph:
(8)(d) Tax cuts. A $25 tax cut, increased $25 yearly (to $50, $75 . . .), shall lower each tax bill for each 2001 and later district: utility customer tax and franchise charge; vehicle ownership tax; yearly income tax; property tax spent on human and health services, economic development, retirement benefits, enterprises, authorities, courts, jails, libraries, schools, elections, and district attorney, assessor, financial, and legal offices combined; income or property tax equal to the combined yearly cost of lease-purchases, unbonded obligations not paid or offset by a pledged cash reserve in the year created, tax-increment financing, tax and spending and future local debt increases voter-approved after 1992 that last more than 10 years after approval, excess revenue for more than one year per election, revenue increases voter-approved after 2000 above a fixed tax rate and a fixed maximum number of dollars yearly, and tax credits and rebates unless voter-approved, for overpayment, or for general refunds of excess or illegal revenue; income or property tax equal to yearly revenue from spending increases after 2000 above a spending limit percentage, and tax and debt increases after 2000 requiring voter approval, except by voter-approved initiative petitions adapting all state petition requirements; income or property tax equal to prior year revenue above 99% of its spending limits; income or property tax equal to yearly revenue from a tax rate increased or a spending limit percentage, computed since 1992, exceeded from 1993 through 2000, except by a fixed tax rate and a voter-approved fixed maximum number of dollars yearly; income or property tax equal to yearly revenue of each authority wholly or partly created by or related to the district but outside fiscal year spending limits, computed since 1992, and yearly cost of all state and local tax and business charge exemptions related to each authority and enterprise; and remaining business personal property tax. The state shall replace local tax cut revenue when the state has a fiscal year revenue increase from all sources of $200 million or more above that year's increase in local replacement, and shall audit yearly all state and local tax and spending limits, which are not increased; (8)(d) does not impair those binding contracts or debts existing in 2000, and shall be strictly construed — substantial compliance is insufficient — and not balanced or harmonized with existing provisions; and all attorney fees and costs to enforce (8) (d) shall always be paid to successful plaintiffs only.
(Emphasis in original.)
The title as designated and fixed by the Board is as follows:
AN AMENDMENT TO THE COLORADO CONSTITUTION ESTABLISHING A $25 TAX CUT TO LOWER EACH 2001 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX AND FRANCHISE CHARGE, VEHICLE OWNERSHIP TAX, AND SPECIFIED INCOME TAX AND PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 YEARLY THEREAFTER; REQUIRING STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WHEN YEARLY STATE REVENUE INCREASES $200 MILLION OR MORE ABOVE THAT YEAR'S INCREASE IN LOCAL REVENUE REPLACEMENT; REQUIRING YEARLY STATE AUDITS OF TAX AND SPENDING LIMITS; SPECIFYING RULES FOR CONSTRUING THIS AMENDMENT; STATING THAT THIS AMENDMENT DOES NOT IMPAIR BINDING CONTRACTS OR DEBTS EXISTING IN 2000; AND AWARDING MANDATORY ATTORNEY FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY.
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 ESTABLISHING A $25 TAX CUT TO LOWER EACH 2001 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX AND FRANCHISE CHARGE, VEHICLE OWNERSHIP TAX, AND SPECIFIED INCOME TAX AND PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 YEARLY THEREAFTER; REQUIRING STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WHEN YEARLY STATE REVENUE INCREASES $200 MILLION OR MORE ABOVE THAT YEAR'S INCREASE IN LOCAL REVENUE REPLACEMENT; REQUIRING YEARLY STATE AUDITS OF TAX AND SPENDING LIMITS; SPECIFYING RULES FOR CONSTRUING THIS AMENDMENT; STATING THAT THIS AMENDMENT DOES NOT IMPAIR BINDING CONTRACTS OR DEBTS EXISTING IN 2000; AND AWARDING MANDATORY ATTORNEY FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY?
The summary prepared by the Board is as follows:
This measure amends article X, section 20 of the Colorado Constitution, by adding a new paragraph (d) to subsection (8). A $25 tax cut, increased $25 each year thereafter, would lower each state and local tax bill for each utility customer tax and franchise charge; vehicle ownership tax; yearly income tax; property tax spent on human and health services, economic development, retirement benefits, enterprises, authorities, courts, jails, libraries, schools, elections, and district attorney, assessor, financial, and legal offices combined; income or property tax equal to the combined yearly cost of lease-purchases, unbonded obligations not paid or offset by a pledged cash reserve in the year created, tax-increment financing, tax and spending and future local debt increases approved by voters after 1992 that last more than 10 years after approval, excess revenue for more than one year per election, revenue increases voter-approved after 2000 above a fixed tax rate and a fixed maximum number of dollars yearly, and tax credits and rebates unless voter-approved, for overpayment, or for general refunds of excess or illegal revenue; income or property tax equal to yearly revenue from spending increases after 2000 above a spending limit percentage and from tax and debt increases after 2000 requiring voter approval, except by voter-approved initiative petitions adapting all state petition requirements; income or property tax equal to the prior year's revenue above ninety-nine percent of its spending limits; income or property tax equal to yearly revenue from a tax rate increased or a spending limit percentage, computed since 1992, exceeded from 1993 through 2000, except by a fixed tax rate and a voter-approved fixed maximum number of dollars yearly; income or property tax equal to the yearly revenue of each authority wholly or partly created by or related to the district but outside fiscal year spending limits, computed since 1992, and the yearly cost of all state and local tax and business charge exemptions related to each authority and enterprise; and remaining business personal property tax. The initial tax cut of $25 is applied to tax bills for tax year 2001.
The measure specifies that it does not impair binding contracts or debts existing in 2000. The state is required to replace the local government revenue affected by the tax cuts established by this measure when the state has a fiscal year revenue increase from all sources of $200 million or more above that year's increase in the amount of local revenue to be replaced. The state is required to yearly audit each tax and spending limit, which are not increased. The measure provides that it is to be strictly construed and not balanced or harmonized with existing provisions. Substantial compliance with the measure is not sufficient. All attorney fees and costs are always awarded to successful plaintiffs only who seek to enforce this new measure.
State impacts. The state income tax cut would reduce the growth in state general fund revenue by $256,396,000 during the three-year period beginning with fiscal year 2001-02. The cut in the state utility customer tax and other income tax cuts contained in the measure would reduce the growth in state general fund revenue by an indeterminate amount during the same three-year period.
The state would incur costs of at least $1,100,000 to administer the tax cuts allowed by this measure. In addition, the state may incur costs for possible annual audits, but the amount of these additional costs is indeterminate.
Assuming the state's revenue growth is sufficient to require state replacement of local government revenue losses resulting from the measure, the measure would have a significant but indeterminate negative fiscal impact on the state. Assuming no state replacement of local revenue, the measure would have a net negative state fiscal impact of at least $257,496,000 during the three-year period beginning with fiscal year 2001-02. The figure does not include the amount of negative fiscal impact that will occur but is indeterminate at this time.
Local impacts. If the state's revenue growth is not sufficient to require state replacement of local government revenue lost due to the measure, the measure would have a significant negative fiscal impact on local governments. Even if the state replaces lost local government revenues, the measure may have a negative fiscal impact on some local governments, since the measure does not increase local tax and spending limits and revenues are currently being collected outside those limits. This measure may increase local government costs due to possible accounting and audit costs, attorney fees and costs that must be mandatorily awarded, and possible increased litigation. The amount of these additional local costs is indeterminate.
December 2, 1998
Hearing adjourned 2:46 p.m.
Rehearing, December 16, 1998
John S. Outcelt, Motion for Rehearing denied