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                                                          ADVANCE SHEET HEADNOTE
                                                                        June 17, 2019

                                        2019 CO 57

No. 19SA25, In re Ballot Title #3—Title Setting—Single Subject Requirement—Ballot
Initiatives.

       This appeal requires the supreme court to decide whether the Title Board erred in

declining to set a title for proposed Initiative 2019-2020 #3. The proposed initiative reads,

in full, “Be it Enacted by the People of the State of Colorado: Section 1. In the constitution

of the state of Colorado, repeal section 20 of article X.” The Title Board declined to set a

title for this initiative because it concluded that the initiative did not constitute a single

subject as required by the Colorado Constitution.

       Applying settled principles for determining whether a proposed initiative

constitutes a single subject, the court now reverses the Title Board. The court concludes

that the initiative, which would ask voters the single question of whether the Tax Payer’s

Bill of Rights should be repealed, constitutes a single subject. To the extent that prior

decisions from the court have said that if a constitutional provision contains multiple

subjects and an initiative proposes to repeal the entire underlying provision, then the

initiative contains multiple subjects, the court concludes that those decisions are not
binding under principles of stare decisis and are not analytically sound, and it

disapproves them.

       The court therefore returns the initiative to the Title Board for the purpose of

setting a title, ballot title, and submission clause.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                      2019 CO 57

                           Supreme Court Case No. 19SA25
               Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2018)
                        Appeal from the Ballot Title Setting Board
     In the Matter of the Title, Ballot Title and Submission Clause for 2019–2020 #3

                                       Petitioners:

                             Carol Hedges and Steve Briggs,

                                            v.

                                      Title Board:

                    Ben Schler, LeeAnn Morrill, and Jason Gelender.


                             Title Board Action Reversed
                                        en banc
                                     June 17, 2019


Attorneys for Petitioners:
Tierney Lawrence LLC
Edward T. Ramey
Martha M. Tierney
   Denver, Colorado

Attorneys for Title Board:
Philip J. Weiser, Attorney General
Emily B. Buckley, Assistant Attorney General
  Denver, Colorado




JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents and JUSTICE BOATRIGHT joins in the dissent.
¶1     Petitioners Carol Hedges and Steve Briggs are the designated representatives of

the proponents of proposed Initiative 2019–2020 #3 (“Initiative #3”), which, if enacted,

would repeal in its entirety the Taxpayer’s Bill of Rights, section 20 of article X of the

Colorado Constitution (“TABOR”). The proposed initiative reads, in full, “Be it Enacted

by the People of the State of Colorado: Section 1. In the constitution of the state of

Colorado, repeal section 20 of article X.” The Title Board declined to set a title for this

initiative because it concluded that the initiative did not constitute a single subject as

required by the Colorado Constitution. Petitioners now petition this court for review.

¶2     Applying settled principles for determining whether a proposed initiative

constitutes a single subject, we reverse the Title Board. We conclude that Initiative #3,

which would ask voters the single question of whether TABOR should be repealed,

constitutes a single subject. To the extent that prior decisions from this court have said

that if a constitutional provision contains multiple subjects and an initiative proposes to

repeal the entire underlying provision, then the initiative contains multiple subjects, we

conclude that those decisions are not binding under principles of stare decisis and are not

analytically sound, and we disapprove them.

¶3     We therefore return Initiative #3 to the Title Board for the purpose of setting a title,

ballot title, and submission clause.

                         I. Facts and Procedural Background

¶4     Pursuant to section 1-40-106, C.R.S. (2018), petitioners submitted proposed

Initiative #3 to the Title Board for the setting of a title and submission clause. The Board

held a hearing and declined to set a title, concluding that “the measure does not constitute

                                              2
a single subject.” Petitioners filed a motion for rehearing, requesting, as pertinent here,

that the Title Board reconsider its determination that Initiative #3 contains more than a

single subject. The Title Board denied the motion for rehearing.

¶5     Petitioners now petition for review pursuant to section 1-40-107(2), C.R.S. (2018).

                                  II. Standard of Review

¶6     “The Title Board is vested with considerable discretion in setting the title and the

ballot title and submission clause[,]” and we will reverse the Board’s decision only when

a title is insufficient, unfair, or misleading. In re Title, Ballot Title & Submission Clause for

2013–2014 #90, 2014 CO 63, ¶ 8, 328 P.3d 155, 159.

¶7     In reviewing Title Board title settings, “we employ all legitimate presumptions in

favor of the propriety of the Board’s actions.” In re Title, Ballot Title & Submission Clause

for 2009–2010 #45, 234 P.3d 642, 645 (Colo. 2010).

¶8     In addition, in our limited review of the Title Board’s actions, we do not address

the merits of the proposed initiative. In re 2013–2014 #90, ¶ 9, 328 P.3d at 159. Nor do we

suggest how it might be applied if enacted. Id. Rather, as pertinent here, we must

examine the initiative’s wording to determine whether it comports with the constitutional

single-subject requirement. See id. In conducting this limited inquiry, we employ the

general rules of statutory construction and give words and phrases their plain and

ordinary meanings. Id.

                                        III. Analysis

¶9     Petitioners contend that the Title Board erred in concluding that Initiative #3 does

not constitute a single subject. We agree.

                                               3
¶10    Article V, section 1(5.5) of the Colorado Constitution 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.

See also § 1-40-106.5(1)(a), C.R.S. (2018) (“Section 1(5.5) of article V . . . require[s] that every

constitutional amendment or law proposed by initiative . . . be limited to a single subject,

which shall be clearly expressed in its title[.]”).

¶11    The single-subject requirement serves two functions.

¶12    First, it is intended

       [t]o forbid the treatment of incongruous subjects in the same measure,
       especially the practice of putting together in one measure subjects having
       no necessary or proper connection, for the purpose of enlisting in support
       of the measure the advocates of each measure, and thus securing the
       enactment of measures that could not be carried upon their merits[.]

§ 1-40-106.5(1)(e)(I).

¶13    “Thus, an initiative’s subject matter must be necessarily and properly connected

rather than disconnected or incongruous, and the initiative will be held to violate the

single subject requirement when it relates to more than one subject and has at least two

distinct and separate purposes.” In re Title, Ballot Title & Submission Clause for 2015–2016

#73, 2016 CO 24, ¶ 14, 369 P.3d 565, 568.

¶14    In this way, the single-subject requirement “prevents the proponents from

combining multiple subjects to attract a ‘yes’ vote from voters who might vote ‘no’ on


                                                 4
one or more of the subjects if they were proposed separately.” In re Title, Ballot Title &

Submission Clause for 2013–2014 #76, 2014 CO 52, ¶ 8, 333 P.3d 76, 79.

¶15    Second, the single-subject requirement seeks “[t]o prevent surreptitious measures

and apprise the people of the subject of each measure by the title, that is, to prevent

surprise and fraud from being practiced upon voters.” § 1-40-106.5(1)(e)(II).

¶16    When, in contrast, an initiative tends to effectuate one general objective or

purpose, then the initiative presents only one subject. In re 2015–2016 #73, ¶ 17, 369 P.3d

at 568. The breadth of the initiative’s objective, however, is not without limits. Id. Thus,

“[a] proponent’s attempt to characterize an initiative under some general theme will not

save the initiative from violating the single-subject rule if the initiative contains multiple

subjects.” In re Title, Ballot Title & Submission Clause for 2009–2010 #91, 235 P.3d 1071, 1076

(Colo. 2010).

¶17    Here, Initiative #3 satisfies all of the above-described requirements of a

single-subject initiative. The initiative effectuates one and only one general objective or

purpose, namely, the repeal of TABOR. In re 2015–2016 #73, ¶ 17, 369 P.3d at 568. It does

not treat incongruous subjects in the same measure, and its subject matter is necessarily

and properly connected. § 1-40-106.5(1)(e)(I); In re 2015–2016 #73, ¶ 14, 369 P.3d at 568.

And we perceive nothing in Initiative #3 that could be deemed to be surreptitious or

hidden in the measure. § 1-40-106.5(1)(e)(II). Nor can we see how Initiative #3 could be

read so as to pose a risk of surprise or fraud on voters. Id. The initiative could not be

written more simply or directly. It essentially asks voters a single question: should

TABOR be repealed in full?

                                              5
¶18    For these reasons, we conclude that Initiative #3 constitutes a single subject as

required by article V, section 1(5.5) of the Colorado Constitution, and that the Title Board

erred in finding otherwise.

¶19    In so ruling, we emphasize that we are not adopting an exception to the

single-subject rule for repeal measures. Rather, as our above analysis demonstrates, we

are merely applying settled principles of our single-subject jurisprudence to the initiative

now before us. Moreover, to conclude that the initiative here comprises multiple subjects

would require us to read language into the initiative that is not there and to address the

merits of that initiative and suggest how it might be applied if enacted. As noted above,

however, we are not permitted to do so. See In re 2013–2014 #90, ¶ 9, 328 P.3d at 159.

¶20    Notwithstanding the foregoing, the Title Board correctly notes that we have

previously stated that if a constitutional provision contains multiple subjects and an

initiative proposes to repeal the entire underlying provision, then the initiative contains

multiple subjects. See, e.g., In re 2013–2014 #76, ¶ 7, 333 P.3d at 78–79; In re Title, Ballot

Title & Submission Clause for Proposed Initiative 2001–02 #43, 46 P.3d 438, 447 (Colo. 2002);

In re Title, Ballot Title & Submission Clause & Summary for 1999–2000 #104, 987 P.2d 249,

254 (Colo. 1999).

¶21    Notably, each of the above-cited cases states this proposition without any analysis.

See In re 2013–2014 #76, ¶ 7, 333 P.3d at 78–79; In re 2001–02 #43, 46 P.3d at 447; In re

1999–2000 #104, 987 P.2d at 254. Instead, these cases simply cite In re Proposed Initiative

1996-4, 916 P.2d 528, 533 (Colo. 1996), or cases that themselves cited In re Proposed

Initiative 1996-4, albeit without discussion. See In re 2013–2014 #76, ¶ 7, 333 P.3d at 7879;

                                              6
In re 2001–02 #43, 46 P.3d at 447; In re 1999–2000 #104, 987 P.2d at 254. The question

presented in this case thus requires us to determine whether In re Proposed Initiative 1996-4

controls here.

¶22    In In re Proposed Initiative 1996-4, 916 P.2d at 530–31, the proponents submitted a

proposed initiative that, if passed, would have repealed and reenacted several individual

and expressly identified provisions of TABOR. The Title Board concluded that the initiative

failed the single-subject requirement, and the proponents filed a petition for review in

this court. Id. at 531. We ultimately upheld the Title Board’s refusal to set a title,

concluding that the initiative violated the single-subject rule. Id. at 534.

¶23    As pertinent here, we began by setting out the law relating to the single-subject

requirement. See id. at 532. Turning to the initiative at issue, we then stated:

       The underlying constitutional provision to be repealed must be examined
       in order to determine whether the repealing and reenacting initiative
       contains a single subject. If, for example, a constitutional provision contains
       multiple subjects and an initiative proposes to repeal the entire underlying
       provision, then the initiative contains multiple subjects. On the other hand, if
       an initiative proposes anything less than a total repeal, it may satisfy the
       single subject requirement.

Id. at 533 (emphasis added).

¶24    We proceeded to observe that the initiative at issue did not seek a total repeal of

TABOR. Id. Accordingly, the comment italicized above did not dispose of the case then

before us, and we were required to examine the proposed initiative to determine whether

it satisfied the single-subject rule. Id. We concluded on the facts there before us that it

did not because the initiative proposed repealing and reenacting topics related to

spending and revenue limits, elections, local responsibility for state-mandated programs,

                                              7
and emergency reserves, which we viewed as “multiple subjects disconnected from any

encompassing principle.” Id.

¶25    For several reasons, In re Proposed Initiative 1996-4 does not control here.

¶26    First, the case involved an initiative that sought both to repeal and to reenact

certain individual provisions of TABOR. The initiative at issue there did not seek to

repeal TABOR as a whole, as is the case here. Accordingly, the initiative required voters

to vote yes on all of the individual and expressly identified subjects or no on all of them,

even though some voters might have preferred to vote yes on some and no on others. As

noted above, the single-subject requirement was designed, in part, to avoid exactly this

scenario. See In re 2013–2014 #76, ¶ 8, 333 P.3d at 79. This concern is not present in a case

like this, however, when voters are asked to vote yes or no on a constitutional provision

as a whole.

¶27    Second, to the extent that In re Proposed Initiative 1996-4 commented on initiatives

that seek to repeal in their entirety constitutional provisions containing multiple subjects,

that comment was dicta, and principles of stare decisis therefore do not apply. See, e.g.,

Coon v. Berger, 588 P.2d 386, 387 (Colo. App. 1978) (“Since [the] prior opinion is only Stare

[sic] decisis on the point decided, any expression of opinion on a question not necessary

for the decision is merely Obiter [sic] dictum, and is not, in any way, controlling upon

later decisions.”), aff’d, 606 P.2d 68 (Colo. 1980); see also People in Int. of Clinton, 762 P.2d

1381, 1385 (Colo. 1988) (noting that when language in an opinion “was not necessary to

the disposition of the issues presented,” such language “should be recognized as dictum

without precedential effect”).

                                               8
¶28    For similar reasons, the cases that have cited In re Proposed Initiative 1996-4’s

comment regarding initiatives that seek to repeal in their entirety constitutional

provisions containing multiple subjects do not control here. As noted above, those cases

recited this comment in dicta and without any analysis. They simply cited In re Proposed

Initiative 1996-4 or cases that themselves cited that case.

¶29    In re 2013–2014 #76, ¶ 31, 333 P.3d at 85, is illustrative of this point. The initiative

at issue in that case proposed to repeal and reenact the constitutional provision setting

forth how government officials may be recalled and to whom the provision applied. See

id. at ¶ 4 & app., 333 P.3d at 78, 86–88. Although the Title Board had found that the

initiative comprised a single subject, we reversed, concluding that the initiative at issue

contained multiple subjects. Id. at ¶¶ 3–5, 31, 333 P.3d at 78, 84–85. In reaching this

conclusion, we noted that the single-subject requirement was added to the constitution

in response to TABOR, which we described as a multiple-subject measure. Id. at ¶ 31,

333 P.3d at 84–85. We then added that after the voters approved the institution of the

single-subject requirement, “we held that repeal of the multiple subjects enacted by

[TABOR] could not be accomplished through a single initiative.” Id. at ¶ 31, 333 P.3d at

85 (citing In re 2001–02 #43, 46 P.3d at 447).

¶30    Not only was this statement dicta, but also it was incorrect because we did not so

“hold” in In re 2001–02 #43, 46 P.3d at 447. In re 2001–02 #43 involved proposed initiatives

that established procedures governing the exercise of the right to petition but also

included, as pertinent here, a provision that exempted from the new procedures

“voter-approved petitions already ruled by the supreme court to be multiple subjects.”

                                                 9
Id. at 443–45. Although the initiative did not expressly say so, this provision would have

precluded any initiative seeking the wholesale repeal of TABOR. Id. at 445, 447. We

described this as “the epitome of a surreptitious measure.” Id. at 447. We then added

that an amendment to the Constitution that prevents the repeal of TABOR constitutes

multiple subjects. Id. In support of this proposition, we quoted our statement in In re

Proposed Initiative 1996-4 that if “a constitutional provision contains multiple subjects and

an initiative proposes to repeal the underlying provision, then the initiative contains

multiple subjects.” Id. (quoting In re Proposed Initiative 1996-4, 916 P.2d at 533).

¶31      This statement, like the similar statement in In re 2013–2014 #76, ¶ 31, 333 P.3d at

85, was dicta because the pertinent conclusion in In re 2001–02 #43 was simply that the

initiative at issue comprised multiple subjects, given that it contained a surreptitious

measure concealed within “an obscure line in the initiative” that would have surprised

voters who supported the initiative. 46 P.3d at 447. We did not hold that the repeal of

the multiple subjects enacted by TABOR (or of any other constitutional provision) could

not be accomplished through a single initiative. Nor did we provide any analysis of that

issue.

¶32       Because, for the reasons previously discussed, the comment in In re Proposed

Initiative 1996-4 was dicta, and because the later cases simply cited this comment in dicta

and without conducting any analyses of their own, those cases are not binding on us

either. See Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (noting that because the Court

had “never squarely addressed” a certain issue and had at most assumed the applicability

of the pertinent standard, it was “free to address the issue on the merits”); Edelman v.

                                              10
Jordan, 415 U.S. 651, 671 (1974) (noting that the Court’s “summary affirmances” of lower

court decisions “are not of the same precedential value as would be an opinion of this

Court treating the question on the merits”); see also People v. Delage, 2018 CO 45, ¶ 10,

418 P.3d 1178, 1180 (noting that although prior decisions had suggested that the court

had adopted a clear and convincing standard of proof in a particular context, the court

had never actually done so, and therefore it was free to address the question of the proper

standard, which was squarely presented in the case before it).

¶33    The question nonetheless remains whether we should adopt the comment recited

in In re Proposed Initiative 1996-4. For several reasons, we decline to do so.

¶34    First, for the reasons set forth above, a one-sentence initiative asking voters to

decide if a constitutional provision should be repealed meets all of the requirements of a

single subject and, indeed, on its face reflects a single subject.

¶35    Second, we perceive no basis for creating what we perceive would be a unique

single-subject rule for efforts to repeal constitutional provisions, whether or not such

provisions contain multiple subjects. This is particularly true in a case like this, where

TABOR, albeit arguably a multi-subject provision, see In re Title, Ballot Title & Submission

Clause & Summary, 900 P.2d 121, 126 (Colo. 1995), was adopted by the voters as a single

provision. In our view, the above-described principles on which this court has relied for

determining whether an initiative contains a single subject are sufficient to guide the Title

Board, future proponents, those who oppose them, and courts regarding whether a

proposed initiative that seeks to repeal a pre-existing constitutional provision itself

contains multiple subjects.

                                              11
¶36    Third, concluding that an initiative contains multiple subjects merely because the

targeted provision contained multiple subjects effectively makes the original provision

impervious to challenge. As Justice Mullarkey noted in her concurrence in In re Proposed

Initiative 1996-4, 916 P.2d at 537 n.3 (Mullarkey, J., concurring in the result), such an

interpretation would require citizens to repeal such provisions “in a piecemeal fashion.”

This would make it exceptionally difficult, if not impossible, to repeal a constitutional

provision like TABOR, which consists of numerous, albeit interrelated, subparts.

Moreover, such a requirement could result in some portions of a constitutional provision

being repealed while leaving in effect other portions of that provision that are dependent

on the repealed portions. Id. Such a process could cause the very problem that the

single-subject requirement is designed to avoid, namely, voter surprise.

¶37    In addition, requiring initiative proponents to seek to repeal a constitutional

provision in a piecemeal fashion would likely prove prohibitively expensive because

such a process would require the proponents to submit a series of initiatives to the Title

Board and, if they succeeded there, to navigate on a repeated basis the

signature-gathering process necessary to get their initiatives on the ballot. This would

likely deter many would-be proponents from pursuing what might well be legitimate

efforts to repeal an existing constitutional provision. We perceive no justifiable purpose

for erecting such roadblocks in the initiative process or for making any constitutional

provision virtually impervious to challenge by the very voters who had the power to

enact such provisions in the first place.



                                            12
¶38    For these reasons, we decline to adopt a rule that would presume that an initiative

contains multiple subjects merely because it is aimed at repealing in its entirety a

constitutional provision that contains multiple subjects. To the extent that any of our

prior cases have suggested otherwise, we disapprove those cases.

¶39    Accordingly, we conclude that Initiative #3 satisfies our constitution’s

single-subject requirement.

                                      IV. Conclusion

¶40    Because Initiative #3 effectuates one general objective or purpose, does not treat

incongruous subjects in the same measure, comprises subject matter that is necessarily

and properly connected, contains nothing surreptitious or hidden, and presents no risk

of surprise or fraud on voters, we conclude that this initiative comprises a single subject

within the meaning of the Colorado Constitution. Accordingly, we reverse the Title

Board’s contrary determination and return Initiative #3 to that Board for the purpose of

setting a title, ballot title, and submission clause.

JUSTICE MÁRQUEZ dissents and JUSTICE BOATRIGHT joins in the dissent.




                                               13
JUSTICE MÁRQUEZ, dissenting.

¶41    In holding that Initiative #3 constitutes a single subject, the majority rewrites

history, the text of article V, section 1(5.5) of the Colorado Constitution, and close to a

quarter century of this court’s case law. The majority overlooks the origins of the single

subject requirement and the role the Taxpayer’s Bill of Rights (TABOR) played as an

impetus for that constitutional amendment. It contradicts the text of the single subject

requirement by inventing a new exception for repeal measures and, remarkably, it

justifies doing so using the very policy arguments that Colorado voters rejected when

they adopted the single subject amendment. And along the way, the majority brushes

aside a host of this court’s prior decisions, recharacterizing our holdings as dicta.

¶42    As with any initiative we are tasked to review at the title setting stage, the wisdom

of TABOR is not before us. Assuming the proponents of Initiative #3 gather enough

signatures to place it on the ballot for a vote, TABOR’s fate remains to be seen at the polls.

Regardless, my concern is that today’s ruling undermines much of our single subject

jurisprudence and substantially weakens the single subject requirement. Because the

majority’s analysis defies logic, the constitution, and decades of this court’s case law, I

respectfully dissent.

          A. The Single Subject Requirement Applies to All Initiatives
                                Without Exception

¶43    Article V, section 1 of the Colorado Constitution reserves the legislative power of

initiative to the people of Colorado. The single subject requirement for citizen initiatives

appears in article V, section 1(5.5), which states:


                                              1
       No measure shall be proposed by petition containing more than one subject,
       which shall be clearly expressed in its title . . . . 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) (emphases added).

¶44    Like the single subject requirement that applies to bills introduced in the General

Assembly, see Colo. Const. art. V, § 21 (“No bill, except general appropriations bills, shall

be passed containing more than one subject.”), article V, section 1(5.5) bars a single

initiative from addressing disconnected and incongruous measures that have no

necessary or proper connection. In re Title, Ballot Title, & Submission Clause for Proposed

Initiative 2001-02 #43, 46 P.3d 438, 440 (Colo. 2002); see also Catron v. Bd. of Cty. Commr’s.,

33 P. 513, 514 (Colo. 1893); In re Breene, 24 P. 3, 3 (Colo. 1890). A proposed initiative

therefore violates the single subject requirement if it relates to more than one subject and

has at least two distinct and separate purposes that are not dependent upon or connected

with each other. Proposed Initiative 2001-02 #43, 46 P.3d at 441.

¶45    All voter initiatives must comply with the single subject requirement. The plain

text of the single subject requirement permits no exceptions. Indeed, we have made quite

clear that nothing in article V, section 1(5.5) or its implementing statutory provision,

section 1-40-106.5, C.R.S. (2018), “creates any exemptions for initiatives that attempt to

repeal constitutional provisions.” In re Proposed Initiative 1996-4, 916 P.2d 528, 532 (Colo.

1996). And it is “well established” that a “measure” as used in article V, section 1(5.5)

“includes initiatives that either enact or repeal.” Id.; see also In re Senate Resolution #4, 130

P. 333, 336 (Colo. 1913) (stating that “[a]n act repealing an act is a measure”).

                                               2
¶46    Importantly, “we must sufficiently examine an initiative to determine whether or

not the constitutional prohibition against initiative proposals containing multiple

subjects has been violated.” In the Matter of Title, Ballot Title, & Submission Clause,

Summary for 1997–98 #30, 959 P.2d 822, 825 (Colo. 1998). This necessarily requires us to

“engage in some substantive inquiry” into the underlying initiative to understand what

it encompasses. Id. at 825 n.2.

                       B. TABOR Contains Multiple Subjects

¶47    Adopted by Colorado voters in 1992, TABOR is codified at article X, section 20 of

the Colorado Constitution. Although popularly understood as requiring voter approval

for tax hikes, TABOR implicates several aspects of the government’s ability to raise and

spend revenue.

¶48    The 1992 ballot title for TABOR described the measure as

       [a]n amendment to the Colorado Constitution to require voter approval for
       certain state and local government tax revenue increases and debt; to
       restrict property, income, and other taxes; to limit the rate of increase in
       state and local government spending; to allow additional initiative and
       referendum elections; and to provide for the mailing of information to
       registered voters.

Legislative Council, Colo. Gen. Assembly, Research Pub. No. 369, An Analysis of 1992

Ballot Proposals 5 (1992) (“1992 Blue Book”).     The 1992 Blue Book catalogued the

assortment of state and local government spending and taxing powers implicated by

TABOR: voter approval of tax increases and debt; state and local government spending

limits; local revenue limits; prohibited taxes; taxpayer refunds; emergency taxes and

emergency reserves; election procedures and required ballot information; state


                                            3
mandates; and requirements related to the assessment of property. Id. at 5–6. TABOR’s

breadth is immense, its subject matter complex.

¶49   More recently, an article from The Colorado Sun summarized the omnibus nature

of TABOR:

      [TABOR] requires voter approval for tax hikes or government debt. It caps
      government growth from year to year. It prohibits real estate transaction
      taxes and tiered tax brackets based on someone’s income. It also directs
      when and how to conduct different kinds of elections. (TABOR itself was
      adopted before voters instituted the single subject rule, so it wasn’t bound
      by the same restrictions.)

Brian Eason, The TABOR Battle Is Reaching New Levels. Critics Are Testing 18 Ways To

Rewrite Colorado Tax Policy, Colo. Sun (June 9, 2019), https://perma.cc/7YS5-49G9.

¶50   Without question, TABOR contains more than a single subject. We have expressly

said as much, describing TABOR as a “multiple subject measure” that “changed the

approval process for new taxes, established revenue limits, and imposed refund

requirements,” among other things. In re Title, Ballot Title, & Submission Clause for

2013-2014 #76, 2014 CO 52, ¶ 31, 333 P.3d 76, 85; see also In re Amend Tabor 25, 900 P.2d

121, 126 (Colo. 1995) (rejecting Title Board’s argument that TABOR is a single issue

measure, and concluding that TABOR “contains multiple subjects”).

        C. TABOR Served as an Impetus for the Adoption of the Single
               Subject Requirement in Article V, Section 1(5.5)

¶51   TABOR’s very complexity served as an impetus for Colorado voters’ 1994

adoption of the single subject rule for citizen initiatives. Identified on the ballot as

“Referendum A,” the legislature’s referred measure was described as “an amendment to



                                           4
articles V and XIX1 of the Constitution of the State of Colorado, requiring that any

measure proposed by initiative or referendum be confined to a single subject.”

Legislative Council, Colo. Gen. Assembly, Research Pub. No. 392, An Analysis of 1994

Ballot Proposals 2 (1994) (“1994 Blue Book”).

¶52    The 1994 Blue Book summary of the measure specifically identified TABOR as a

proposal that could be considered to “include more than one subject,” observing that

TABOR encompassed “provisions relating to taxes, elections, state-mandated programs,

and spending and revenue limitations.” Id. at 3. Indeed, it described TABOR as an

example of an initiative that, under Referendum A, “might not have been allowed unless

[it was] changed to reduce [its] scope.” Id.

¶53    This court has expressly recognized the connection between the 1992 adoption of

TABOR and the voters’ adoption of the single subject amendment at the very next general

election. Not long after TABOR’s adoption, we observed, for example, that, “[b]y the

passage of Referendum A, the people in 1994 sought to avoid future constitutional

provisions that are too broad so as to touch upon several matters.” Amend Tabor 25, 900

P.2d at 126.    We noted that TABOR itself “was not subject to the single subject

requirement and contains multiple subjects.” Id.




1Article XIX of the Colorado Constitution concerns the method by which constitutional
amendments are made.

                                                5
¶54    The majority essentially overlooks this important historical contextual point: in

adopting the single subject requirement for citizen initiatives, voters sought to prevent

multi-subject initiatives like TABOR from being placed on the ballot in the future. Yet

ironically, today the majority blesses an initiative that would, once again, place all of

TABOR on the ballot, directly contrary to the intent of the single subject requirement.

            D. Our Case Law Has Consistently Held That Repeal of a
             Multiple Subject Measure Violates the Single Subject
                                Requirement

¶55    In 1996, two years after the single subject amendment was enacted and four years

after TABOR was adopted, citizens brought an initiative seeking a repeal and partial

reenactment of TABOR. The Title Board concluded that the initiative failed the single

subject requirement, and the proponents petitioned this court for review. Proposed

Initiative 1996-4, 916 P.2d at 532. We upheld the Title Board’s refusal to set a title,

concluding that the initiative violated the single subject rule. Id. at 534.

¶56    In reaching that conclusion, we observed that there are no exceptions to the single

subject requirement either for repeal initiatives or for measures that target constitutional

provisions that were adopted before the single subject rule was enacted:

       All initiatives must comply with the single subject requirement. Colo. Const.
       art V, § 1(5.5). Neither the constitutional language nor section 1–40–106.5
       creates any exemptions for initiatives that attempt to repeal constitutional
       provisions. Also, no special permission exists for initiatives that seek to address
       constitutional provisions adopted prior to the enactment of the single subject
       requirement. On the contrary, article V, section 1(5.5) specifically states that
       “[n]o measure shall be proposed by petition containing more than one
       subject . . . .” Section 1–40–106.5 requires “every constitutional amendment
       or law proposed by initiative . . . be limited to a single subject . . . .”


                                               6
Id. at 532 (emphases added).

¶57    Turning to the initiative in that case, we concluded that it contained multiple

subjects because it proposed “repealing topics related to spending and revenue limits,

elections, local responsibility for state mandated programs, and emergency reserves.” Id.

at 533. We rejected the proponents’ contention that each repealed subsection would

address the single subject of “limiting government spending.” Id. In other words, the

multiple repealed subjects themselves violated the single subject requirement; that the

initiative also sought to reenact parts of TABOR only amplified the problem.

Accordingly, we upheld the Title Board’s refusal to set a title. Id. at 534.

¶58    In short, we held in Proposed Initiative 1996-4 that the proposed effective partial

repeal of TABOR addressed multiple subjects and thus ran afoul of the single subject rule.

Id. at 532–34. That holding was not dicta. Nor were our statements that the single subject

requirement applies to repeal measures, and that no special exceptions exist for initiatives

that predated the adoption of the single subject requirement. Id. at 532. These statements

were necessary to our rationale.

¶59    True, in our discussion, we noted that a full repeal of a multiple subject measure

would violate the single subject rule.      Id. at 533 (“If, for example, a constitutional

provision contains multiple subjects and an initiative process proposes to repeal the

entire underlying provisions, then the initiative contains multiple subjects.”). Although

dicta, this statement represented the obvious and logical implication of our holding in

that case. Put simply, if a partial repeal of a multiple subject provision violates the single

subject amendment, then surely a full repeal does as well.

                                              7
¶60    The majority focuses on a single line of dicta in Proposed Initiative 1996-4 but in so

doing, ignores the actual holding of the case. Maj. op. ¶ 38. Yet our later opinions have

relied on Proposed Initiative 1996-4 and its underlying logic as stare decisis.

¶61    For example, since our decision in that case, we have repeatedly acknowledged

that repeal measures are bound by the single subject requirement. See, e.g., In re Title,

Ballot Title, & Submission Clause, & Summary for 1999-2000 #104, 987 P.2d 249, 254 (Colo.

1999) (“[A] proposed initiative contains multiple subjects not only when it

proposes new provisions constituting multiple subjects, but also when it proposes

to repeal multiple subjects.”); In re Title, Ballot Title, & Submission Clause for 2011-2012 #45,

2012 CO 26, ¶ 28, 274 P.3d 576, 584 (“For initiatives seeking to repeal constitutional

provisions, we examine the underlying constitutional provision in order to determine

whether the repealing initiative contains a single subject.”). Until today, we have never

said that repeal measures are exempt from the single subject requirement.

¶62    And in Proposed Initiative 2001-02 #43, we relied in part on Proposed Initiative 1996-

4 to hold that an initiative designed in part to prevent the repeal of TABOR contains

multiple subjects. Although we concluded that this aspect of the initiative constituted a

separate subject, we also observed that

       an amendment to the Colorado Constitution which prevents the repeal of TABOR
       itself constitutes multiple subjects in violation of article V, section 1(5.5). TABOR
       contains multiple subjects. In re Proposed Initiative Amend TABOR 25, 900
       P.2d at 126. If “a constitutional provision contains multiple subjects and an
       initiative proposes to repeal the entire underlying provision, then the
       initiative contains multiple subjects.” 916 P.2d at 533. It follows that an
       initiative proposing to prevent the repeal of a constitutional provision
       containing multiple subjects also contains multiple subjects. Therefore, an

                                                8
      initiative proposing to prevent the wholesale repeal of TABOR contains multiple
      subjects.

46 P.3d at 447 (emphases added).

¶63   Indeed, as recently as five years ago, we reaffirmed our holding in Proposed

Initiative 1996-4 and its underlying principles in our decision in 2013-2014 #76. There, we

again signaled that a repeal of TABOR’s multiple subjects could be accomplished only

through separate proposals:

      We must give effect to the voters’ intent in amending the Colorado
      Constitution to include the single subject requirement for ballot initiatives.
      This amendment to the constitution occurred after the voters approved a
      1992 initiative, which its proponents called “The Taxpayer’s Bill of Rights”
      (referred to as “TABOR” or “Amendment 1” in our case law), a multiple
      subject measure that changed the approval process for new taxes, established
      revenue limits, and imposed refund requirements, among other provisions.
      After the voters approved the institution of the single subject requirement in 1994,
      we held that repeal of the multiple subjects enacted by Amendment 1 could not be
      accomplished through a single initiative. Repeal of Amendment 1’s multiple
      subjects would have to be accomplished, if at all, through separate proposals.

2013-2014 #76, ¶ 31, 333 P.3d at 85 (emphases added).

         E. The Majority Effectively Overrules Decades of This Court’s
                        Case Law Without Justification

¶64   The majority reasons that “to the extent that In re Proposed Initiative 1996-4

commented on initiatives that seek to repeal in their entirety constitutional provisions

containing multiple subjects, that comment was dicta, and principles of stare decisis

therefore do not apply.” Maj. op. ¶ 27. Yet by ignoring our actual holding and rationale

in Proposed Initiative 1996-4, the majority blithely deems decisions spanning close to a

quarter century that have relied on that precedent as not “analytically sound,” and


                                               9
“disapprove[s]” an entire body of this court’s case law. Maj. op. ¶ 2. In reality, today’s

decision necessarily overrules those cases, and does so without justification or regard for

principles of stare decisis. The majority’s reasoning simply does not withstand scrutiny,

for a host of reasons.

¶65    First and foremost, the majority’s analysis defies logic. The majority concludes

that Proposed Initiative 1996-4 does not control here because “[that] case involved an

initiative that sought both to repeal and to reenact certain individual provisions of

TABOR. The initiative at issue there did not seek to repeal TABOR as a whole, as is the

case here.” Maj. op. ¶ 26. But if we held in Proposed Initiative 1996-4 that a partial repeal

of TABOR violates the single subject rule, how is it logically possible that a full repeal

somehow does not?

¶66    Given the breadth of TABOR, it is not difficult to demonstrate why its repeal in

total violates the very purpose of the single subject requirement. The majority observes

that the initiative at issue in Proposed Initiative 1996-4 “required voters to vote yes on all

of the individual and expressly identified subjects or no on all of them, even though some

voters might have preferred to vote yes on some and no on others.” Maj. op. ¶ 26. It then

opines that “[t]his concern is not present in a case like this, however, when voters are

asked to vote yes or no on a constitutional provision as a whole.” Id. How so? If the 1996

initiative, which proposed repealing only certain parts of TABOR required voters to vote

yes on all of the individual subjects or no on all of them, then Initiative #3, which proposes

repealing all of TABOR, plainly suffers the same defect. For example, a voter may want

to retain TABOR’s voter approval requirement for tax increases but may want to repeal

                                             10
TABOR’s prohibition on tiered tax brackets based on income. A complete repeal of

TABOR eliminates this choice.

¶67    The majority also claims that “a one-sentence initiative asking voters to decide if a

constitutional provision should be repealed meets all of the requirements of a single

subject and, indeed, on its face reflects a single subject.” Maj. op. ¶ 34 (emphasis added).

But the majority has it backwards. An initiative that unquestionably encompasses

multiple subjects, yet on “its face reflects a single subject,” is precisely the type of measure

that risks “passage of a surreptitious provision ‘coiled up in the folds’ of a complex bill.”

Proposed Initiative 2001-02 #43, 46 P.3d at 440 (quoting Breene, 24 P. at 4). Lumping several

subjects under a single label (“TABOR”) and packaging the proposal as a repeal changes

nothing. “A proponent’s attempt to characterize an initiative under some general theme

will not save an initiative from violating the single subject rule if the initiative contains

multiple subjects.” In re Title, Ballot Title, Submission Clause for 2009-2010 #91, 235 P.3d

1071, 1076 (Colo. 2010).

¶68    The majority suggests it is being asked to create a “unique single-subject rule for

efforts to repeal constitutional provisions.” Maj. op. ¶ 35. In reality, the majority creates

today a new exception to the single subject rule for repeal measures—despite its insistence

that it is not doing so. Id. at ¶ 19. This new exception finds no anchor in the constitutional

text and directly contradicts our prior case law. As discussed, we have made clear that

“[a]ll initiatives must comply with the single subject requirement,” and nothing in article

V, section 1(5.5) “creates any exemptions for initiatives that attempt to repeal

constitutional provisions.” Proposed Initiative 1996-4, 916 P.2d at 532. The plain and

                                              11
unambiguous language of the single subject requirement answers the question we are

presented with today.

¶69   Remarkably, the majority also relies on policy arguments that Colorado voters

rejected when they adopted the single subject requirement in 1994. The majority reasons,

for example, that to conclude that a repeal initiative “contains multiple subjects merely

because the targeted provision contained multiple subjects effectively makes the original

provision impervious to challenge,” and that such an approach would force repeal efforts

to proceed in a piecemeal fashion. Maj. op. ¶¶ 36–37.

¶70   But the 1994 Blue Book expressly cautioned voters that, if enacted, the single

subject requirement would preclude the comprehensive revision of existing complex

constitutional provisions, and instead would force piecemeal revisions:

      This amendment will inhibit the ability of citizens and the legislature to present
      comprehensive revisions to Colorado law to the voters. In order to change a complex
      area of the law, more than one question may need to be on the ballot or more than
      one election may be necessary. If several amendments are necessary to change
      various aspects of state government, for example a complex subject such as
      the personnel system, it may be important to include a number of topics
      within one proposal and to have a consensus of number of groups in order
      for the changes to be adopted. This proposal works against achieving system
      wide changes because complex reforms cannot realistically be accomplished on a
      piecemeal basis or in a series of elections.

1994 Blue Book at 4 (emphases added).

¶71   Thus, voters were well aware of the consequences of the single subject rule. See

Carrara Place, Ltd. v. Arapahoe Cty. Bd. of Equalization, 761 P.2d 197, 203 (Colo. 1988)

(discussing Blue Book summary of proposed amendment and noting that “the legislative

council’s interpretation, while not binding, provides important insight into the


                                              12
electorate’s understanding of the amendment when it was passed”). Armed with this

understanding, voters passed the measure anyway.

¶72    The majority fails to mention that in Proposed Initiative 1996-4, we expressly

rejected the proponents’ argument that “requiring strict compliance with the single

subject requirement to a repealing initiative precludes extensive modification of existing

constitutional provisions” and that to apply the single subject requirement to

constitutional provisions that predated the enactment of the single subject requirement

would insulate those measures from significant change. 916 P.2d at 533. Quoting the

1994 Blue Book, we noted that opponents of the single subject requirement had made the

same arguments against adoption of the measure, and yet, “[b]y passing the initiative,

the voters rejected that argument.” Id.

¶73    The majority nevertheless coopts the same arguments as a policy justification for

its holding today, reasoning that applying the single subject rule to repeal measures that

target multiple subject provisions that predate the single subject requirement “effectively

makes the original provision[s] impervious to challenge,” and forces piecemeal repeal

efforts. Maj. op. ¶¶ 36–37. True. But that is exactly what Colorado voters bargained for

when they adopted the single subject requirement with knowledge of these constraints.

It is not this court’s job to revisit the wisdom of the electorate’s decision. Rather, we must

respect the law the Colorado voters chose to adopt. By relying on the very arguments

opponents raised as reasons not to adopt the single subject rule, the majority ignores the

decision that Colorado voters made for themselves a quarter century ago.



                                             13
¶74    Finally, I fear the majority’s analysis today has broad implications. The majority

does little work to explain or justify how article X, section 20, a provision that

unquestionably contains multiple subjects, “does not treat incongruous subjects in the

same measure, comprises subject matter that is necessarily and properly connected,

contains nothing surreptitious or hidden, and presents no risk of surprise or fraud on

voters.” Maj. op. ¶ 40. Apparently these requirements are met simply because the

initiative proposes to repeal the provision. But by focusing on the notion that a “repeal”

presents one subject, while refusing to examine whether what is being repealed (here, the

“Taxpayer Bill of Rights”) consists of more than one subject, see maj. op. ¶ 19, the ruling

today profoundly weakens the single subject requirement. To offer an extreme example,

under the majority’s logic, voters could repeal our state constitution’s entire Bill of Rights

through a single initiative and do away with religious freedom, free speech, protections

against unreasonable searches and seizures, the right to bear arms, the prohibition against

cruel and unusual punishment, and due process, among a host of other rights. To

illustrate the point, we simply substitute a different provision for “section 20 of article X”

in the proposed language of Initiative #3: “Be it Enacted by the People of the State of

Colorado: Section 1. In the constitution of the state of Colorado, repeal [article II].” Under

today’s ruling, such an initiative, “which would ask voters the single question of whether

[The Bill of Rights] should be repealed, constitutes a single subject.” Maj. op. ¶ 2. Such

a result cannot have been the voters’ intent in adopting the single subject requirement.




                                             14
                                        Conclusion

¶75    All voter initiatives must comply with the single subject requirement. This court

made clear long ago that nothing in article V, section 1(5.5) “creates any exemptions for

initiatives that attempt to repeal constitutional provisions.” Proposed Initiative 1996-4, 916

P.2d at 532.    Because Initiative #3 seeks to repeal TABOR, and because TABOR

unquestionably encompasses multiple subjects, Initiative #3 contains multiple subjects in

violation of article V, section 1(5.5) of the Colorado Constitution. The Title Board

therefore quite properly refused to set a title. I respectfully dissent.

I am authorized to state that JUSTICE BOATRIGHT joins in this dissent




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