Summary
upholding proposed initiative that sought to establish parents' rights of control of their children in four distinct areas: upbringing, education, values, and discipline
Summary of this case from In re Title, Ballot Title 1999-2000Opinion
No. 95SA398
Decided April 1, 1996
Original Proceeding Pursuant to § 1-40-107(2), 1B C.R.S. (1995 Supp.)
ACTION APPROVED
Kelly/Haglund/Garnsey Kahn, LLC, James W. Hubbell, Valissa A. Tsoucaris, Denver, Colorado.
Isaacson, Rosenbaum, Woods Levy, P.C., Edward T. Ramey, Denver, Colorado, Attorneys for Petitioners.
Kenneth H. Gray, Colorado Springs, Colorado, Attorney for Respondents.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Title Setting Board.
Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, Cathy L. Cooper, Bradley C. Bartels, Denver, Colorado, Attorneys for Amici Curiae Colorado Education Association, and People for the American Way.
Dimanna Jackson, Daniel A. Sweetser Denver, Colorado, Attorney for Amici Curiae CAFCA, Inc. and The Adoption Exchange.
Planned Parenthood of the Rocky Mountains, Inc., Kevin C. Paul Aurora, Colorado, Attorney for Amici Curiae Planned Parenthood of the Rocky Mountains, Inc. and The Center for Reproductive Law and Policy.
Hutchinson Black and Cook, LLC, James England, Boulder, Colorado, Attorney for Amicus Curiae American Civil Liberties Union Foundation of Colorado, Inc.
James P. Rouse, Arvada, Colorado, Attorney for Amici Curiae Rocky Mountain Family Council and Rocky Mountain Family Legal Foundation.
The petitioners, Louis L. Kelley, Kate L. Reinisch, and James Allan McGregor, as registered electors of the state of Colorado, bring this original proceeding pursuant to section 1-40-107(2), 1B C.R.S. (1995 Supp.), to review the action of the initiative title setting board (the Board) in fixing the title, ballot title and submission clause, and summary for a proposed initiative constitutional amendment designated as "Parental Rights" (the Initiative). We approve the action of the Board.
The Initiative would amend article II, section 3 of the Colorado Constitution by providing parents with the "natural, essential and inalienable right" "to direct and control the upbringing, education, values, and discipline of their children." The text of the Initiative is attached as APPENDIX A. The title, ballot title and submission clause, and summary prepared by the Board are attached as APPENDIX B.
The petitioners assert that: (1) the Board failed to follow the procedures set forth in section 1-40-106(1), 1B C.R.S. (1995 Supp.), and, accordingly, lacked jurisdiction to hold hearings on the Initiative; (2) the Initiative violates article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5, 1B C.R.S. (1995 Supp.), because it contains multiple unrelated purposes in a single measure; (3) the title, ballot title and submission clause, and summary do not express the true intent and meaning of the Initiative and are inadequate to inform voters of the purpose and effect of the measure; and (4) the summary does not include an adequate fiscal impact statement as required by section 1-40-106(3)(a), 1B C.R.S. (1995 Supp.). We approve the Board.
I
On November 2, 1995, the Legislative Council held a hearing on the Initiative to ascertain the proponents' intent and objective in proposing the amendment. The proponents of the Initiative responded to questions addressing the impact of the amendment on existing state laws governing children. On November 15, 1995, pursuant to section 1-40-106(1), the Board held a hearing and fixed a title, ballot title and submission clause, and summary for the Initiative.
The Legislative Council is part of the Office of Legislative Legal Services and has a duty to "examine the effects of constitutional provisions and statutes and recommend desirable alterations." § 2-3-303(1)(b), 1B C.R.S. (1995 Supp.).
Section 1-40-106(1) provides in pertinent part:
For ballot issues, . . ., the secretary of state shall convene a title board consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services or the director's designee. The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause . . . .
On November 21, 1995, the petitioners filed a motion for rehearing, contending that the Board's action should be set aside because: (1) the Initiative violated the single-subject requirement of article V, section 1(5.5) of the Colorado Constitution and section 1-40-106.5; (2) the title, ballot title and submission clause, and summary fail to fairly and accurately express the true intent and meaning of the initiative; (3) the title, ballot title and submission clause, and summary as fixed by the board "make it virtually certain that voters would be surprised by the widespread changes that the measure would work on [existing statutes and procedures];" and (4) the summary does not include a meaningful fiscal impact statement.
In this original proceeding, the petitioners contend that the Board lacked jurisdiction to set title, ballot title and submission clause, and a summary because it held hearings on the Initiative outside the time frame mandated by section 1-40-106(1). However, the petitioners failed to raise this contention in their motion for rehearing, and, accordingly, we refuse to address the issue here.
On December 6, 1995, the petitioners; the proponents; and representatives from the Colorado Education Association, Rocky Mountain Planned Parenthood, the Colorado Coalition for the Protection of Children, and AMEND appeared and presented arguments to the Board on their petition for rehearing. At the conclusion of the hearing, the Board denied the petitioners' motion for rehearing in its entirety.
AMEND is an organization that provides counseling to abusive men in domestic violence situations.
II A
Article V, section 1 of the Colorado Constitution reserves to registered electors the right to initiate constitutional amendments. Subsection 5.5 of that section requires that each initiative be limited to a single subject and provides in pertinent part:
No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.
Colo. Const. art. V, § 1(5.5); see § 1-40-106.5.
The single subject requirement prohibits the inclusion of "incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection," § 1-40-106.5(1)(e)(I), and is designed to protect the voters from surprise and fraud. § 1-40-106.5(1)(e)(II); see In re Title, Ballot Title and Submission Clause, and Summary Regarding Amend Tabor 32, 908 P.2d 125, 128 (Colo. 1995) (hereafter Amend Tabor 32); In re Title, Ballot Title and Submission Clause, and Summary Regarding Amend Tabor 25, 900 P.2d 121, 124-25 (Colo. 1995) (hereafter Amend Tabor 25); In re Proposed Initiative "Public Rights in Waters II", 898 P.2d 1076, 1078 (Colo. 1995) (hereafter "Public Rights in Waters II"). The General Assembly intended that this section be "liberally construed, so as to avert the practices against which they are aimed and, at the same time, to preserve and protect the right of initiative and referendum." § 1-40-106.5(2).
The Board's duty is to designate and fix a title, ballot title and submission clause, and a summary for initiated petitions before these petitions are signed by electors. § 1-40-106(3), 1B C.R.S. (1995 Supp.). Section 1-40-106.5(3) directs the Board to "apply judicial decisions construing the constitutional single-subject requirement for bills and . . . follow the same rules employed by the general assembly in considering titles for bills."
In order to violate the single-subject requirement, the text of the measure must "relate to more than one subject and [have] at least two distinct and separate purposes which are not dependent upon or connected with each other." In re Title, Ballot Title and Submission Clause, and Summary Regarding Petition Procedures, 900 P.2d 104, 109 (Colo. 1995) (hereafter Petition Procedures); see "Public Rights in Waters II", 898 P.2d at 1078-79; People v. Sours, 31 Colo. 369, 405, 74 P. 167, 178 (1903). The single subject requirement is not violated if the "matters encompassed are necessarily or properly connected to each other rather than disconnected or incongruous." Amend Tabor 25, 900 P.2d at 125; see "Public Rights in Waters II", 898 P.2d at 1079.
In reviewing the Board's actions, "[w]e do not address the merits of proposed initiatives," nor "interpret the meaning of language contained in such proposals". In re Proposed Initiative Concerning "Automobile Insurance Coverage", 877 P.2d 853, 856 (Colo. 1994). It is "beyond the scope of our review . . . to interpret or construe the language of a proposed initiative." Id.
B
The petitioners contend that the Initiative violates the constitutional single-subject requirement because it establishes the parents' right of control of their children in four distinct areas: upbringing; education; values; and discipline. We disagree.
When reviewing an action of the Board, we must liberally construe the single-subject and title requirements to ensure that the rights of proponents are not unduly restricted. See § 1-40-106.5(2). Here, the single purpose of the Initiative is to establish as inalienable the rights of parents "to direct and control the upbringing, education, values, and discipline of their children." Because the Initiative relates to a single subject and does not encompass multiple unrelated matters, we conclude that it does not violate the single-subject requirement of article V, section 1(5.5) of the Colorado Constitution or section 1-40-106.5. See Amend Tabor 32, 908 P.2d at 128-29 (holding that an initiative did not violate the single-subject requirement although it proposed a tax credit which would apply to six state or local taxes); "Public Rights in Water II" 898 P.2d at 1079 (stating that, if the initiative tends to effect or carry out one general object or purpose, it encompasses a single subject).
III A
The petitioners contend that the title, ballot title and submission clause, and summary do not fairly express the true intent and meaning of the Initiative. We do not agree.
The title and ballot title and submission clause must "correctly and fairly express the true intent and meaning" of the proposal and must "unambiguously state the principle of the provision sought to be added, amended, or repealed." § 1-40-106(3)(b); see In re Title, Ballot Title, and Submission Clause regarding Limited Gaming in Manitou Springs, Fairplay, and in Airports, 826 P.2d 1241, 1245 (Colo. 1992). The summary must be "true and impartial and shall not be an argument, nor likely to create prejudice, either for or against the measure." Section 1-40-106(3)(a). In reviewing the actions of the Board, we grant "great deference to the board's broad discretion in the exercise of its drafting authority." In re Proposed Initiative Concerning "State Personnel Sys.", 691 P.2d 1121, 1125 (Colo. 1984) (hereafter "State Personnel Sys.").
We have held that, "[i]t 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 amendment." In re Title, Ballot Title and Submission Clause, and Summary Pertaining to Mineral Production Tax Initiative, 644 P.2d 20, 25 (Colo. 1982) (hereafter Mineral Production). So long as the "chosen language fairly summarizes the intent and meaning of the proposed amendment, without arguing for or against its adoption, it is sufficient." Id. We will revise the Board's action only when the language used by the Board is clearly misleading. "State Personnel Sys.", 691 P.2d at 1125.
In the present case, the title to the Initiative states that the amendment concerns parental rights, and then lists the four areas that are enumerated in the summary, whereas the summary states that the amendment concerns parental rights to "direct and control the manner in which their children are raised, including the children's upbringing, education, values, and discipline." (Emphasis added). Although the language of the summary could have been more precise, the chosen language fairly summarizes the intent and meaning of the proposed amendment. Mineral Production, 644 P.2d at 25.
The title, ballot title and submission clause, and summary clearly identify that the central feature of the Initiative is to provide parents with a constitutional right to direct and control their children. The petitioners concede that the title, ballot title and submission clause, and summary essentially repeat the text of the Initiative. However, they argue that the title, ballot title and submission clause, and summary fail to inform the public of the Initiative's true intent and meaning because the voters will not know that the Initiative may be in conflict with existing state laws governing children.
The Board is not required to "state the effect that an initiative may have on other constitutional provisions." In re Title, Ballot Title and Submission Clause Concerning Limited Gambling in Antonito, 873 P.2d 733, 740 (Colo. 1995) (hereafter Limited Gambling in Antonito); see In re Title, Ballot Title and Submission Clause, and Summary Pertaining to Tax Reform, 797 P.2d 1283, 1288-89 (Colo. 1990) (hereafter Tax Reform). The summary is "not intended to fully educate people on all aspects of the proposed law" and is not required to "set out in detail every aspect of the initiative." Tax Reform, 797 P.2d at 1289.
Because the title, ballot title and submission clause, and summary fairly and accurately describe the intent and meaning of the Initiative, we reject the petitioners' contention.
B
The petitioners also claim that the summary fails to include an adequate fiscal impact statement as required by section 1-40-106(3)(a). We do not agree.
Section 1-40-106(3)(a) provides that, if the board determines that the proposed initiative "will have a fiscal impact on the state or any of its political subdivisions," "the summary shall include an estimate of any such fiscal impact, together with an explanation thereof." Id.
The fiscal impact statement contained in the summary of the Initiative states that, "[b]ecause the simplicity of the measure raises a question as to the scope of its interpretation, the fiscal impact of the measure is indeterminate." The Board's statement of the fiscal impact is adequate.
The Office of State Planning and Budgeting and the Department of Local Affairs must provide fiscal impact information to the Board upon request. § 1-40-106(3)(a). In the present case, both the Office of State Planning and Budgeting and the Department of Local Affairs made comments and provided the required analysis to the Board. After review, the Board adopted the language of the Department of Local affairs and concluded that the fiscal impact of the Initiative was indeterminate. When the fiscal impact of a measure cannot be determined due to variables or uncertainties involved, "a separate explanation of fiscal impact is not required." Limited Gambling in Antonito, 873 P.2d at 742-43; see Tax Reform, 797 P.2d at 1291. Here, the fiscal impact statement reflects the Board's conclusion that the financial impact of the amendment is indeterminate, and, accordingly, the petitioners' contention that the fiscal impact statement is inadequate and misleading lacks merit.
IV
For the foregoing reasons, we approve the action of the Board.
JUSTICE MULLARKEY concurs in part and dissents in part, JUSTICE KIRSHBAUM dissents, and JUSTICE SCOTT does not participate.
APPENDIX A
Be it Enacted by the People of the State of Colorado:
Article II, section 3 of the Colorado constitution is amended to read:
(3) Inalienable rights. All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; of seeking and obtaining their safety and happiness; AND OF PARENTS TO DIRECT AND CONTROL THE UPBRINGING, EDUCATION, VALUES, AND DISCIPLINE OF THEIR CHILDREN.
APPENDIX B Proposed Initiative on "Parental Rights"
The title as designated and fixed by the Board is as follows:
AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING PARENTAL RIGHTS, AND, IN CONNECTION THEREWITH, SPECIFYING THAT PARENTS HAVE THE RIGHT TO DIRECT AND CONTROL THE UPBRINGING, EDUCATION, VALUES, AND DISCIPLINE OF THEIR CHILDREN.
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 PARENTAL RIGHTS, AND, IN CONNECTION THEREWITH, SPECIFYING THAT PARENTS HAVE THE RIGHT TO DIRECT AND CONTROL THE UPBRINGING, EDUCATION, VALUES, AND DISCIPLINE OF THEIR CHILDREN?
The summary prepared by the Board is as follows:
The measure would grant constitutional status to parents' rights to direct and control the manner in which their children are raised, including the children's upbringing, education, values, and discipline.
Because the simplicity of the measure raises a question as to the scope of its interpretation, the fiscal impact of the measure is indeterminate.