Opinion
No. 84SA281
Decided July 5, 1984.
Original Proceeding Pursuant to C.R.S. 1-40-102(3)
Robert B. Keating, Pro Se.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Maurice G. Knaizer, Assistant Attorney General, for Title Setting Board.
EN BANC
This is an original proceeding under section 1-40-102(3), 1B C.R.S. (1980), in which we must review the titles and submission clause approved by the Initiative Title Setting Review Board (Board) for a proposed initiated law concerning the dispensing and possession of fermented malt beverages. We conclude that the titles and submission clause express the true meaning and intent of the proposed law with sufficient clarity. Therefore, we affirm the action of the board.
I.
The proposed initiated law would amend section 12-46-112 of the Colorado Beer Code, sections 12-46-101 to -118, 5 C.R.S. (1978 1983 Supp.), to raise the fermented malt beverage drinking age from eighteen to twenty-one and to change the prohibited times of sale of that beverage from the hours between 12:00 midnight and 5:00 A.M. to the period 2:00 A.M. to 7:00 A.M. The measure would accomplish these objectives by substitution of the new age limit and hours in the existing provisions of the Colorado Beer Code. The proposed new law is set forth in full text in Appendix A to this opinion.
"Fermented malt beverage" is defined in the Colorado Beer Code as follows: "Fermented malt beverage" means any beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops, or any similar product or any combination thereof in water containing not less than one-half of one percent and not more than three and two-tenths percent alcohol by weight. § 12-46-103(1), 5 C.R.S. (1983 Supp.).
Pursuant to section 1-40-101(2), 1B C.R.S. (1980), the Board designated and fixed the following title for the proposed measure:
AN ACT TO PROHIBIT THE SELLING, SERVING, OR GIVING OF FERMENTED MALT BEVERAGES TO PERSONS UNDER TWENTY-ONE YEARS OF AGE AS OF JULY 1, 1985, EXCEPT TO PERSONS REACHING EIGHTEEN YEARS OF AGE BEFORE SUCH DATE.
The Board also designated and fixed a ballot title and submission clause as follows:
SHALL THERE BE AN ACT TO PROHIBIT THE SELLING, SERVING, OR GIVING OF FERMENTED MALT BEVERAGES TO PERSON [SIC] UNDER TWENTY-ONE YEARS OF AGE AS OF JULY 1, 1985, EXCEPT TO PERSONS REACHING EIGHTEEN YEARS OF AGE BEFORE SUCH DATE?
Finally, the Board prepared the following summary of the proposed law:
The act would prohibit the selling, serving, or giving of fermented malt beverages to persons under twenty-one years of age, as well as the purchase or public possession of such beverages by those under twenty-one.
The measure would forbid any sale of fermented malT beverages between the hours of 2:00 A.M. and 7:00 A.M.
The act would take affect [sic] July 1, 1985. It would not prohibit the consumption of fermented malt beverages by persons who turned eighteen before that date.
The measure would result in a reduction in the sales of fermented malt beverages and a related reduction in state and local government revenues. The extent to which revenue reductions would be offset by reductions in alchohol-related [sic] social costs is indeterminable.
Thereafter, under the authority of section 1-40-102(3), 1B C.R.S. (1980), Robert B. Keating (petitioner), a qualified elector, filed a motion with the Secretary of State for a rehearing, challenging the title, the ballot title, and submission clause on the basis that they "do not fairly or clearly express the true meaning and intent of the proposed law." The petitioner did not object to the summary. The Board held a hearing to consider the motion and denied it. The petitioner then sought relief in this court under the procedures prescribed in section 1-40-102(3), 1B C.R.S. (1980).
The petitioner challenges the titles and submission clause on three bases. First, he alleges that the titles and submission clause are deficient because they fail to mention that the proposed statute would forbid persons under twenty-one years of age from possessing fermented malt beverages in any store, public place, state property, or motor vehicle on a public way. Second, he contends that it is inaccurate to describe the proposed act's provision that persons who are eighteen years of age and older prior to July 1, 1985, may continue to "consume fermented malt beverages" as an exception to the prohibition of selling, serving, or giving of fermented malt beverages to that group. Finally, the petitioner objects to the absence of any reference to the change in the hours during which the sale of fermented malt beverages is prohibited.
II.
A summary of the relevant procedures, duties of the Board, and standards to be applied by this court in reviewing the Board's actions will provide a useful background against which to consider the petitioner's specific objections.
The right of the People to initiate laws is rooted in Article V, section 1 of the Colorado Constitution. The Board was created by statute to assist in the implementation of this right. See § 1-40-101(2), 1B C.R.S. (1980). The Board is required "to designate and fix a proper fair title for each . . . proposed law . . . ," one "which shall correctly and fairly express the true intent and meaning thereof." Id. The Board must also fix a ballot title and submission clause. Id. Ballot titles "shall be brief" and "shall unambiguously state the principle of the provision sought to be added, amended, or repealed." Id.
After the Board has designated the titles and submission clause, and has prepared the summary, any qualified elector who is not satisfied with the Board's products and is not among the persons submitting the initiative petition may move the Board for a rehearing. § 1-40-102(3), 1B C.R.S. (1980). If unsuccessful, the elector may obtain review of the Board's action by this court. Id. Grounds for challenge are that "the titles, summary, and submission clause . . . [are] unfair or that they do not clearly express the true meaning and intent of the proposed law . . . ." Id.
Separate provisions are made for rehearing and appeal at the instance of persons who presented the initiative petition. § 1-40-101(3), 1B C.R.S. (1980).
Where, as here, a petitioner seeks review by this court after denial of relief by the Board, we must apply the following standards:
"(1) [W]e must not in any way concern ourselves with the merit or lack of merit of the proposed amendment since, under our system of government, that resolution rests with the electorate; (2) all legitimate presumptions must be indulged in favor of the propriety of the board's action; and (3) only in a clear case should a title prepared by the board be held invalid."
Bauch v. Anderson, 178 Colo. 308, 310, 497 P.2d 698, 699 (1972). These standards have been reaffirmed and applied in a number of later cases. E.g., In re: Proposed Initiated Constitutional Amendment of Education, 1984, No. 84SA231, slip op. at 3 (Colo. June 11, 1984) (hereafter cited as 1984 Education Amendment); In re: An Initiated Constitutional Amendment Respecting Rights of the Public to Uninterrupted Services by Public Employees, 199 Colo. 409, 410, 609 P.2d 631, 632 (1980). Our role is to determine whether the titles, submission clause and summary fairly reflect the purport of the proposed amendment. 1984 Education Amendment, slip op. at 3. This is important so that neither the signers of initiative petitions nor the electors voting on an initiated measure will be misled. See §§ 1-40-107 and 108, 1B C.R.S. (1980 1983 Supp.); 1984 Education Amendment, slip op. at 3.
III. A.
It is clear from a reading of the proposed initiated law that its central purpose is to raise the drinking age for fermented malt beverages from eighteen to twenty-one. The act would accomplish this purpose by striking the word "eighteen" wherever it appears in section 12-46-112 of the Colorado Beer Code and substituting the words "twenty-one." The only other revisions the measure would effect would be to change the early morning hours during which the sale of fermented malt beverages is prohibited and to substitute "fermented malt beverages" for "3.2 beer" in the warning to be displayed on premises licensed for retail sale. This latter change is not involved in the challenges to the titles and submission clause. In addition, the proposed law provides a transition period, permitting persons who are eighteen prior to July 1, 1985, the act's effective date, to continue to consume fermented malt beverages.
Section 12-46-112 contains a myriad of prohibitions which could not be detailed in the titles and submission clause consistent with the statutory mandate of brevity. See § 1-40-101(2), 1B C.R.S. (1980). The Board has chosen to capture the central effect of the changes by stating that they would "prohibit the selling, serving, or giving of fermented malt beverages to persons under twenty-one years of age. . . ."
B.
The petitioner's first objection is that the titles do not fairly reflect the content of the proposed amendment because they omit to mention that the act would prohibit persons under twenty-one from possessing fermented malt beverages in any store, public place, state property, or motor vehicle on a public way. He asserts that the absence of information about these prohibitions on possession, when taken together with the specific reference to forbidden acts of dispensing fermented malt beverages, renders the titles fatally misleading. We disagree. The identification of classes of persons who might violate the act, and the exact nature of the activities proscribed are only incidental to the main theme: fermented malt beverages are not to be made available to persons under twenty-one. The language of the titles communicates precisely that. It is not necessary that every effect of a proposed initiated law be described in the titles. In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Casino Gaming Initiative Adopted on April 21, 1982, 649 P.2d 303 (Colo. 1982) (hereafter cited as Casino Gaming;) In re Title, Ballot Title and Submission Clause, and Summary Pertaining to the Sale of Table Wine in Grocery Stores Initiative Adopted on March 24, 1982, 646 P.2d 916 (Colo. 1982) (hereafter cited as Table Wine in Grocery Stores).
C.
The petitioner also asserts that the consumption exception is improperly summarized in the titles and that the action of the Board must be reversed as a result. We disagree. The act would become effective July 1, 1985, with the following exception: "however, persons who are eighteen years of age and older prior to July 1, 1985, may continue to consume fermented malt beverages." (Emphasis added.) The effect of this exception is limited in time. Three years from the effective date of the act it will have no further relevance.
The titles indicate that the consumption exception extends to the prohibition against the selling, serving, or giving of fermented malt beverages, while the petitioner asserts that it must be narrowly and literally read to protect only the drinking of the beverages. We have held that neither the Board nor the court should engage in statutory construction in the course of setting or reviewing titles, submission clauses, and summaries. Casino Gaming; In re Title, Ballot Title and Submission Clause, and Summary Including the Estimate of Fiscal Impact and Explanation Thereof Pertaining to the Mineral Production Tax Initiative Adopted on January 27, 1982, 644 P.2d 20 (Colo. 1982) (hereafter cited as Mineral Production Tax). It is necessary, however, to summarize proposed initiated laws in order to achieve brevity in the titles. See § 1-40-101(2), 1B C.R.S. (1980). Anything less than a recital of the full text of such a law involves a choice of words that frequently suggests the meaning to be given to the more expansive language of the initiated measure itself.
The language adopted by the Board to summarize the consumption exception suggests a scope for that exception which is expansive, but not unreasonable. Under the circumstances here, where the wording of the titles attributes a meaning to the text that is reasonable, although not free from all doubt, and relates to a feature of the proposed law that is both peripheral to its central purpose and of limited temporal relevance, we conclude that no clear case has been presented for invalidation of the titles fixed by the Board. See, e.g., Bauch v. Anderson, 178 Colo. 308, 497 P.2d 698 (1972).
D.
Finally, the petitioner claims that the titles do not fairly represent the content of the measure because they make no mention of the change of prohibited times of sale from the hours between 12:00 midnight and 5:00 A.M. to the period 2:00 A.M. to 7:00 A.M. We disagree. Ballot titles are required to be brief. § 1-40-101(2). Not every possible effect of the legislation must be included in the titles. Casino Gaming, 649 P.2d at 310; Table Wine in Grocery Stores, 646 P.2d at 921. The duration of the closure period would remain the same under the proposed law as under the present statute; the period is simply shifted forward by two hours. The Board might well have viewed this change as only incidental to the act's central purpose of increasing the drinking age. See Table Wine in Grocery Stores, 646 P.2d at 921 (titles properly limited to effects that the Board considered of utmost importance). Indulging all legitimate presumptions in favor of the propriety of the Board's action, as we must, and adhering to the principle that only in a clear case should a title prepared by the Board be declared invalid, we hold that the omission of the change in sale hours is a decision properly within the discretion of the Board and is one to which we must defer.
E.
In evaluating the petitioner's objections, we are mindful that the Board's actions must be presumed to be proper so that the orderly progress of the initiative process is not impeded for other than substantial reasons. This protects the "strong constitutional interest in the People's right to initiate constitutional amendments." Casino Gaming, 649 P.2d at 308; accord, Say v. Baker, 137 Colo. 155, 322 P.2d 317 (1958). "It is not the function of this court to rephrase the language of the summary and title in order to achieve the best possible statement of the intent of the [proposed initiated law]." Mineral Production Tax, 644 P.2d at 25; accord, Say v. Baker.
We hold that the titles and submission clause, while perhaps not models for future draftsmanship, are adequate to meet the statutory requirements of fairness and clear expression of the true meaning and intent of the proposed law.
We affirm the ruling of the Initiative Title Setting Review Board denying the petitioner's motion for rehearing.
JUSTICE KIRSHBAUM dissents and JUSTICE NEIGHBORS joins in the dissent.