Kemper v. Hamilton

Justice HOBBS delivered the Opinion of the Court. In this appeal pursuant to section 1-40-107(2), C.R.S. (2007), two registered electors, Douglas Kemper and Stuart Sanderson (collectively, "Kemper"), challenge the action of the Title Board in setting the title, ballot title, and submission clause ("titles") for proposed Initiative 2007-2008 #17 (unofficially captioned by legislative staff, for tracking purposes, "New State Department and Elected Board for Public Resource Conservation").1 The initiative's proponents contend that the measure proposes only the creation of a new Colorado Department of Environmental Conservation with a mission of "conservation stewardship." Kemper asserts that the measure goes beyond establishing a new environmental department and supplying it with a mission statement for conservation stewardship; instead, the initiative, in sections 2 and 7, sets forth a mandatory public trust standard for agency decision-making whereby conflicts between "economic interest" and "public ownership and public conservation values in lands, waters, public resources, and wildlife," must always be resolved in favor of "public ownerships and public values." The initiative's proponents have submitted a written statement characterizing their own testimony before the Title Board as "definitively and succinetly statling] that there has been no attempt in the article XXX proposal to establish a public trust doctrine.2 However, Kemper contends that the language of the measure does, in fact, propose a public trust standard conjoined with the creation of a new environmental department, thereby creating a multiple subject violation contrary to our decision in In re Title, Ballot Title & Submission Clause, & Summary Pertaining to a Proposed Imitiative "Public Rights in Waters II" ("Waters II"), 898 P.2d 1076, 1078-79 (Colo.1995). Thus, a central point of contention in this appeal is whether the initiative contains a proposal to establish a public trust standard for agency decision-making. We agree with Kemper that the initiative contains the additional subject of a public trust standard, not simply the subject of a new environmental department with a conservation stewardship mission. We conclude that our decision in Waters II controls our decision in this case [873] and requires that the public trust standard proposed in this initiative be made in a single subject initiative. Accordingly, we reverse the action of the Title Board and remand this case to it with directions to strike the titles and return the initiative to its proponents.3 I. Initiative # 17s Proposal On June 6, 2007, the Title Board conducted a public meeting on Initiative 2007-2008 # 17, pursuant to section 1-40-106(1), C.R.S. (2007). It designated and fixed a title, ballot title, and submission clause for the initiative. Kemper filed a Motion for Rehearing. At a subsequent public meeting, the Title Board denied Kemper's motion, whereupon Kemper initiated this original proceeding for review of the Title Board's action. The initiative proposes ten single-spaced pages of new text, adding section XXX to the Colorado Constitution. It contains eleven provisions applicable to numerous agencies that are currently assigned to the Department of Natural Resources, the Department of Health and Environment, and the Governor's Office. The initiative would transfer to the new Department of Environmental Conservation the following existing programs, divisions, boards, and commissions: Colorado Natural Areas Program; Colorado Water Conservation Board; Colorado Division of Forestry; Colorado Division of State Parks; Colorado Water Quality Control Division; Colorado Division of Wildlife; Colorado Land Use Commission; Colorado Captive Wildlife and Alternative Livestock Board; the State Board of Land Commissioners; Great Outdoors Colorado Program; State Board of the Great Outdoors Colorado Trust Fund; Hazardous Waste Commission; Colorado Land Use Commission; Colorado Natural Areas Council; Colorado Board of Parks and Outdoor Recreation; Pollution Prevention Advisory Board; Colorado Water Conservation Board; Colorado Water Quality Control Commission; Wildlands and Urban Interface Wildlife Working Group; Colorado Wildlife Commission; and Colorado Joint Review Process. The initiative also includes language that would insert a public trust standard into agency decision-making. II. We agree with Kemper that the initiative contains the additional subject of a public trust standard, not simply the subject of a new environmental department with a conservation stewardship mission. We conclude that our decision in Waters IZ controls our decision in this case and requires that the public trust standard contained in the language of this initiative be proposed in a single subject initiative. A. Standard of Review In 1994, the Colorado voters adopted the single subject matter requirement of article V, section 1(5.5). This constitutional requirement and the Title Board's enabling statute, § 1-40-106.5(1)(a), CRS. (2007), provide that a proposed initiative must be "clearly expressed." The Constitution and the statute prohibit initiatives from containing two or more separate and discrete subjects that are not dependent upon or necessarily connected with each other. Waters II, 898 P.2d 1076, 1078-79; see also In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative 2001-02 # 43, 46 P.3d 438, 441-42 (Colo.2002). Further, one of the purposes of the single subject requirement is to apprise voters of the subject of each measure, so that surreptitious measures that could result in voter surprise or fraud are not placed on the ballot. Id. at 441; see also § 1-40-106.5(1)(e)(I1), C.R.S. (2007). At first glance, the concept of a single subject appears straightforward; however, an initiative with [874] multiple subjects may be improperly offered as a single subject by stating the subject in broad terms. In re Title, Ballot Title & Submission Clause, & Summary 2005-2006 # 55, 138 P.8d 278, 274 (Colo.2006). Implementing provisions that are directly tied to an initiative's central focus are not separate subjects. In re Title, Ballot Title & Submission Clause, & Summary for 1999-2000 # 258(A), 4 P.8d 1094, 1097 (Colo. 2000). While we do not determine an initiative's efficacy, construction, or future application, we must examine the proposal sufficiently to enable review of the Title Board's action. Id. at 1097-98. We apply the general rules of statutory construction and accord the language of the measure its plain meaning. In re Title, Ballot Title & Submission Clause, & Summary for 2005-2006 # 75, 188 P.3d 267, 271 (Colo.2006). B. This Initiative Proposes a Public Trust Standard, Not Simply a New Environmental Department with a Conservation Stewardship Mission At first glance, this initiative may seem to propose only the creation of an environmental conservation department with a conservation stewardship mission. However, a plain reading of the initiative's language also reveals the inclusion of a public trust standard for ageney decision-making. Section 7 of the initiative assigns to the new environmental department a priority to "steward and protect the public ownership and public conservation values in lands, waters, public resources, and wildlife." Standing alone, this language can be viewed as merely assigning a mission to the new department. However, additional language in section 7 and section 2 of the initiative creates a new and mandatory public trust standard for agency decision-making applicable to existing divisions, programs, boards, and commissions transferred from the Department of Natural Resources, the Department of Health and the Environment, and the Governor's Office. First, the initiative utilizes the words "[tlrust responsibilities" in the lead lines of section 7. After stating the new department's mission, section 7 sets forth a mandatory public trust standard, whereby conflicts between "economic interest" and "public ownership and public conservation values in lands, waters, public resources, and wildlife" shall be resolved in favor of "public ownerships and public values." Section 7 enunciates this new public trust standard as follows: Trust responsibilities of the Colorado department of environmental conservation. (1) The Colorado Department of Environmental Conservation is created by the people of the state of Colorado to ensure public resource conservation stewardship, and in connection therewith, the Colorado Department of Environmental Conservation, and the elected members of the Board of Commissioners of the Colorado Department of Environmental Conservation, shall have, as priority, the responsibility to steward and protect the public ownership and public conservation values in lands, waters, public resources, and wildlife. Conflict between economic interest and conservation stewardship responsibilities to, and for, the public's resources and resource conservation values shall be resolved in favor of public ounerships and public values. (emphasis added). Section 2 of the initiative mandates that, in the event of conflict with other constitutional provisions, the provisions of the new article XXX preempt existing constitutional provisions. Specifically, section 2 states: Should conflict with other Colorado constitutional provisions arise hereafter, provisions within Article XXX shall be held dominant over other, previous constitutional provisions. (emphasis added). Thus, in providing for the resolution of economic interest conflicts in favor of public ownerships and public values in every instance, sections 2 and 7 mandate a public trust standard. This language goes beyond establishing a mission of conservation stewardship for the new environmental depart [875] ment into constitutionally mandating a controlling legal standard. C. Our Decision in Waters II Controls The public trust standard this initiative proposes is a variation on a subject we have addressed in prior ballot title cases. In Waters II, the proposed public trust would have required the state to "adopt and defend a strong public trust doctrine regarding the public's rights and ownerships in and of the waters in Colorado." 898 P.2d at 1077 n. L. Because the public trust standard was joined with a proposal for reforming water district rules, we determined that the initiative contained more than a single subject in violation of the single subject requirement of article V, section 1(5.5) of the Colorado Constitution. Just as the initiative in Waters IF improperly paired the reformation of water district rules with the separate and discrete subject of the creation of a public trust standard, so too does this initiative improperly pair the creation of a new environmental department with the separate and discrete subject of the creation of a public trust standard. In a subsequent case, we upheld the action of the Title Board in setting the titles when the subject of creating a public trust standard was not paired with a separate and discrete subject in a proposed initiative. See In re Title, Ballot Title & Submission Clause, & Summary 1996 #6 ("Hufford" ), 917 P.2d 1277 (Colo.1996). In Hufford, the initiative at issue proposed that the "State of Colorado shall adopt, and defend, a public trust doctrine to protect the public's rights and ownerships in and of the waters in Colorado, and to protect the natural environment." 917 P.2d at 1278 n. 2. Additionally, prior to the passage of the single subject provision, in In re Title, Ballot Title & Submission Clause, & Summary for Proposed Initiative on Water Rights ("Swingle"), 877 P.2d 321 (Colo. 1994), the initiative we reviewed proposed the public trust language later utilized in the Hufford and Waters II initiatives, and included a provision requiring that "the State of Colorado protect and defend the publics' [sic] interests in waters from unwarranted or otherwise narrow definitions of its waters as private property." 877 P.2d at 324. The public trust language of the initiative now before us only recasts the words of the prior initiatives we considered in Waters II, Hufford, and Swingle. The operative precepts "trust responsibility" for "public ownerships" and "public values" in "water" is the same in this case as in Waters ILI, Huf-ford, and Swingle This initiative adds "lands, public resources, and wildlife" to the trust responsibility and, most significantly, enunciates a mandatory constitutionally preemptive legal standard whereby conflicts between "economic interest" and "public ownership and public conservation values in lands, waters, public resources, and wildlife," shall be resolved in favor of "public ownerships and public values." In this initiative, the public trust standard subject is paired with the subject of reorganizing existing natural resource and environmental protection divisions, programs, boards, and commissions, and these are separate and discrete subjects that are not dependent upon or necessarily connected with each other. Similarly, we held in Waters IL, 898 P.2d 1076, that the reform of water district rules and the creation of a public trust standard were separate and discrete subjects that were not dependent upon or necessarily connected with each other. An initiative that joins multiple subjects poses the danger of voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision coiled up in the folds of a complex initiative. In re Title, Ballot Title & Submission Clause, & Summary for 2001-02 #438, 46 P.3d at 442. We must examine sufficiently an initiative's central theme to determine whether it contains hidden purposes under a broad theme. In re Proposed Initiative for 2005-2006 #55, 138 P.3d 273, 279 (Colo.1995). The initiative before us today is complex and subtly worded. However, just as "water" was too broad a theme in Waters II, 898 P.2d at 1080, to unite multiple subjects into a single subject, so do "environmental conservation" and "conservation stewardship" fail [876] to suffice here. Despite the statement of the initiative's proponents that the initiative simply creates a new environmental department with a conservation stewardship mission, a plain reading of the initiative reveals that it superimposes onto existing constitutional and statutory provisions the duty to resolve every conflict between "economic interests" and "public ownerships and public values" in favor of "public ownerships and public values." The public trust standard contained in this initiative is coiled in the folds of the measure, contrary to our holding in Waters II, 898 P.2d at 1080. What appears to be a simple proposal to reorganize and consolidate existing environmental protection and natural resource conservation agencies for the purpose of efficiency and carrying out their assigned responsibilities is conjoined with the creation of a public trust standard, in violation of the single subject requirement of article V, seetion 1(5.5) of the Colorado Constitution. HL Accordingly, we reverse the Board's action and remand this matter with directions to strike the titles and return the initiative to its proponents. Justice EID dissents, and Justice RICE and Justice COATS join in the dissent. Footnotes [1] The text of the titles is attached as Appendix A. The text of Initiative 2007-2008 # 17 is attached as Appendix B. [2] Response to Motion to Rehear the Title Set by the Title Setting Board for the Initiative to Add Article XXX-Establishment of Colorado Department of Environmental Conservation, June 20, 2007, at 2. (''The contention by petitioners to rehear that suggests that the measure is an attempt, in a surreptitious manner, to install a public trust doctrine into the Colorado Constitution, is in direct conflict with testimony provided ai the Title Hearing, June 6th where testimony specifically stated there was, in no manner, any attempt to promote a public trust doctrine."). [3] In view of our holding reversing the Title Board's action based on the single subject requirement, we do not address Kemper's contentions that there are additional subjects, that the titles are misleading, and that the initiative employs an impermissible catch phrase. See In re Title, Ballot Title & Submission Clause, & Summary for 2001-02 #43, 46 P.3d 438, 440 (Colo. 2002) ("Because we conclude that [the initiative] contains multiple subjects, we do not consider whether the titles set by the Title Board conform 6 to the requirements. ...").