Title Board meeting 3-25-20

The Title Board met virtually on March 25, 2020 to advance initiatives pertaining to nicotine taxes and paid leave.

When Colorado voters saw seven citizen-initiated measures on the ballot this year, it was not obvious that those were only the tip of the iceberg.

Coloradans did not, ultimately, get the chance to vote on a criminal record expungement system, vouchers for campaign contributions or a tax deduction for people who do not use their vehicles often. But all of those policy ideas did come before an obscure, three-member panel that meets in downtown Denver from December to April of each year, known as the Title Board.

“I asked to be designated for the Title Board because I had a lot of experience,” said Jason Gelender, a board member representing the Office of Legislative Legal Services. "I thought in my own estimation I was temperamentally well suited for it.”

OLLS, which writes laws for the General Assembly, receives one of the seats on the board, as do the secretary of state and attorney general’s offices. All initiated measures must come before the board to receive a title, which often distills many pages of legal text to a handful of lines that voters will read on their ballots.

“They perform what many view as a thankless job, I think,” said Benjamin Larson, an attorney with Ireland Stapleton Pryor & Pascoe, who represents proponents of ballot initiatives before the board. The first meeting of the next election cycle will take place on Dec. 2, where a proposed fracking ban is on the agenda.

Starting out, the authors of a ballot initiative take their concept to OLLS for a review and comment session, in which the professionals at the legislature evaluate the measure and suggest editorial tweaks or pose questions about the logistics of the measure to the proponents. 

Absent any major changes, the proposal then goes before the Title Board. If ballot initiatives constitute a fourth branch of government in Colorado, the board is the gatekeeping entity.

However, its charge is strictly nonpolitical: without considering the effects of the initiative, or even whether it is a good or bad idea, board members must determine whether the initiative follows the constitutional requirement to only address a single subject. If it does not, the board has no jurisdiction to set a title and the initiative is blocked from the ballot.

“We do respect all of the proponents and try to figure out what their intent is,” Gelender said. Sometimes, the language in the initiative does not match what the proponents imagine their single subject to be. In those cases, Gelender said, the title setting hearing helps the proponents see the discrepancy and perhaps change their proposal.

In instances where a measure fails to contain only one subject, “I want to be really sure that I think that it doesn’t,” he added. “Because the right to an initiative is fundamental, and a person shouldn't be denied their ability to collect signatures and get it on the ballot unless we’re sure it has multiple subjects.”

Hearings, rehearings and the Supreme Court

In conversations with Title Board members past and present, there was a common narrative to their work. Each person would receive the materials compiled about the measure to that point, including a draft ballot title. They worked through each measure on their own, generally without consulting anyone else in their offices. The Supreme Court hears appeals of Title Board actions directly, and board members became familiar with the instances where the court has issued opinions to guide the board’s work.

“It’s really mostly on the single-subject requirement because that is the gatekeeper,” said Frederick R. Yarger, a former solicitor general and Title Board member.

Suzanne Staiert, a former deputy secretary of state and board member, recalled that her impressions about a title would typically change between her personal review of the proposals and the deliberation during the title setting meetings.

“Some of it was just that we had different areas of expertise,” she said. “People at legislative council might have had more expertise on a [Taxpayer Bill of Rights] issue. Sometimes you would defer based on where their body of knowledge was.”

At a title setting hearing, board members will interact with the proponents and with each other, determining single subject jurisdiction and then staring at a screen while words are added, subtracted or rephrased in the ballot title.

People who disagree with the Title Board’s decisions, known as objectors, may ask for a rehearing to reconsider either the single subject determination or the wording of the title. The process echoes courtroom procedure, with a written brief and oral argument before the board.

Martha Tierney, an attorney at Tierney Lawrence who represents clients at board proceedings, said that “usually when they change their minds, it’s because whoever drafted the motion for rehearing made a compelling legal argument. The other reason, which we occasionally see, is the members of the Title Board may change,” meaning that other individuals from each office may substitute for an absent member.

In the 2020 election cycle, the Title Board reversed itself multiple times for a proposal nicknamed the “Petition Rights Amendment.” With the overarching goal of making it easier to initiate ballot measures at all levels of government, the use of vague terminology and elimination of certain constitutional language created a headache for the board in determining how many subjects were encapsulated in the page-long proposal.

One provision gave the governor a new veto power through the deletion of a constitutional section, which only became apparent after objectors raised the issue. At the time, Gelender conceded, “it probably should have been something that occurred to me created a second subject.”

Although occasionally Title Board members will reverse their decisions about the single subject — and even more frequently allow tweaks to title wording — the Supreme Court has generally deferred to the board’s actions. The justices depend on written briefs, what happened at the hearing and their own precedent. Unless they overturn a decision, the court will simply issue an order, without elaboration, upholding the Title Board.

“There was at least one case where I remember the court just affirmed what we did without an opinion,” recalled Glenn Roper, a former deputy solicitor general and Title Board member. “Although we prefer being affirmed rather than reversed, it would have been nice to have them explain the reasoning so that could be a precedent that we could look to.”

Strategic choices

Proponents will sometimes bring to the Title Board slightly different versions of the same policy proposal. This election, for example, Coloradans decided to mandate voter approval for creating government enterprises that take in more than $100 million over five years, which became Proposition 117. But proponents had five other versions of the initiative available for use, tweaking the dollar amount or the window of time.

“Just like you see in the legislature where there are amendments on a bill? That’s what those different versions are. They’re amended versions,” explained Tierney.

Once a ballot initiative passes successfully though the Title Board and is eligible for signature gathering, no amendments are possible. Therefore, there are incentives to get as many variations approved as possible. For instance, the coalition backing the policy may need time to coalesce around which version to submit to voters. Proponents may turn to focus groups or polling to decide which version is most feasible. People may take into account the Title Board’s feedback when considering their options.

Or they may try to gain leverage with legislators by threatening to run an initiative campaign.

David Blake, formerly a board member from the attorney general's office, agreed that putting forth multiple measures allowed proponents more time after the title setting hearing to decide on a strategy. For others, “those things became a leverage point and a lobbying point at the legislature.”

Although the board may not need to spend the same amount of time on all variants once they consider just one or two initially, the effect can be to clog up agendas. In an extreme example, two proponents representing themselves brought 36 versions forward of a measure establishing a criminal record expungement process.

Roper said that sometimes proponents were dissatisfied with the title the board set and would withdraw their initiative entirely. He hypothesized about a system whereby the single subject determination would come first, then the signature gathering for the statewide ballot, and culminating with the writing of a title.

Doing so would introduce politics into the title setting process. Although board members indicated that sometimes they knew who the broader coalitions were that were pushing for a measure beyond the two required, publicly-advertised representatives, it did not matter to them.

“Even now I don’t know necessarily,” said Staiert, the former board member who currently represents initiative proponents as an attorney at Maven Law Group. “It’s a proponent and I’ll just represent a proponent. I don’t know if they’re paying the bill or someone else is paying.”

There was general agreement among attorneys and Title Board members interviewed that having more public disclosure about the backers of an initiative was unnecessary at the title setting stage.

“There are times when the public would benefit from knowing who is maybe behind a measure. I’m not sure how you would legislate that,” said Tierney. “Do you have one meeting? Five meetings? How do you define [involvement]?”

Representation matters?

Although a small group of attorneys regularly represents proponents at Title Board hearings, plenty of people see their proposals survive scrutiny just by representing themselves.

Stephen Ball, one of the proponents of the expungement initiatives, praised the Title Board members for their clear reasoning during the hearing and for their detailed knowledge of his proposal.

“I did regret not attending a previous hearing, to see one in person first,” he said, “but luckily another initiative was slated first that day so I was able to observe at least once before I took the podium.”

Natalie Menten, an outgoing Regional Transportation District board member and a longtime participant in the state's direct democracy process, expressed frustration that not all of the board's feedback comes all at once.

"When you go in there for your very first Title Board hearing, they may, as an example, mention 'with this one sentence, we have a concern,'" she said. "You go, 'We're gonna amend that sentence.' You go back for your rehearing and all of a sudden, there are things that come out of the blue. Things never mentioned in the first hearing."

In part, Menten blamed "high-paid lawyers stomping on the little citizen" for the roadblocks, but also a relatively short timeline that can preclude proponents from adding provisions to their measures and restarting the process before deadline.

Attorneys indicated that generally, it was more important to have legal representation when drafting an initiative in the first place, although not all proponents asked for that service. Some lawyers only represent proponents or objectors whose stance aligns with a certain viewpoint or ideology. None of them formally advertises themselves as a “Title Board lawyer.”

“It’s probably through political channels. I don’t really know,” Larson said, speculating about how clients find him. A litigator who said he has always had an interest in politics, Larson described the Title Board process as “the enjoyable parts of litigation” — getting to argue a case, receiving immediate feedback and seeing decisions occur quickly.

With an attorney, proponents and objectors get someone who is familiar with Colorado statutes and Supreme Court precedent, and who can spot single subject pitfalls.

Nevertheless, added Larson, “the Title Board works really hard to go out of its way to be fair,” and hiring a lawyer may not be an advantage. Attorneys estimated that rates for Title Board work could range from $250 to $700 per hour, totaling as much as $50,000.

In Ball’s case, he considered hiring an attorney, but recalled that his lowest quote would involve paying 20 attorneys for six months.

“If I had the means to finance a legal team for that,” he said, “I’d pay for law school instead and still have enough left over to pay a licensed petition entity to gather the signatures."

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