After initially declining to set a title for a proposed constitutional amendment to redesign the petitioning process, then reversing itself, the Title Board on Wednesday changed course yet again and denied a title for the “Petition Rights Amendment.”
“I take some blame for this,” said Jason Gelender, the representative for the Office of Legislative Legal Services. When he noted at the Jan. 2 meeting that the initiative, number 127, generated a new veto power for the governor, “it probably should have been something that occurred to me created a second subject," Gelender said.
The three-member Colorado Initiative Title Setting Review Board is the gatekeeper to proponents of initiatives who want to begin gathering signatures for their proposals. The board must set a ballot title that describes what the measures do, but only if they adhere to a single subject.
Since the Jan. 2 meeting, Denver attorney Mark G. Grueskin objected to the title set for the Petition Rights Amendment, and moved for a rehearing through his attorney, Thomas M. “Trey” Rogers III.
“If we get to the Supreme Court on this, I don’t know how I’m gonna make the page limit. There’s so many targets to shoot at here,” Rogers said.
In the motion for rehearing, Grueskin listed eight subjects the initiative covers, plus the proponents' stated goal of modifying the petitioning process. Among the multiple alleged subjects were the repeal and replacement of local governments' initiative procedures, the new requirement that failed referendums require future referendums on bills of the same topic, and the scrapping of local governments’ single subject requirements.
“The claim that there were nine separate subjects? We wholeheartedly reject that,” said Natalie Menten of Lakewood, one of the proponents of initiative 127.
The proposed amendment, in addition to establishing the right to initiative at every division of state and local government and expanding the ability to have referendums on General Assembly-passed bills, also deletes several provisions in the constitution.
Rogers took issue with the number of revisions that Menten and the other designated representative, Donald L. “Chip” Creager III of Denver, made to the Petition Rights Amendment since first submitting it in October.
“The version the board set a title for on Jan. 2 was actually the third version this board considered. By the third iteration of 127, proponents had made 11 substantive changes to the measure,” Rogers said. “Where the content of the measure has changed so substantially, certainly the public is entitled to see another review and comment hearing.”
Board clerk Steven Ward clarified that while the constitution permits proponents to strike text, he had rejected a recent filing from Menten and Creager in which they attempted to insert text.
“A lot of the details are in very little language that repeals a lot of things,” Gelender observed. The Grueskin motion, phrasing the concern differently, said that certain provisions “are so poorly drafted that it is impossible to comprehend their meaning or intent.”
David Powell, the representative of Attorney General Phil Weiser, was absent for the Jan. 2 hearing, but said that he listened to the recording. He believed that Menten and Creager learned for the first time at that hearing that their proposal would give the governor new veto power by striking part of the constitution, even though the two maintained on Wednesday that the initiative “does not enact a veto power.” Powell said that this provision could constitute a second subject.
“From our perspective, that’s our concern,” he said.
Gelender warned Menten and Creager that, were the Petition Rights Amendment to go to the state Supreme Court, justices might find that the measure repeals the single subject requirement in the constitution, as Grueskin’s motion claimed.
“I’ve construed the initiative liberally,” Gelender said. “I’m increasingly uncomfortable with doing that. I would strongly suggest to the proponents that they think very hard about that provision.”
By a unanimous vote, the board granted the Grueskin motion for a rehearing only on the grounds that the repeal of local governments’ single subject rules constituted a second subject.
Board Chair Ben Schler, a representative of Secretary of State Jena Griswold, told Menten and Creager that going forward, he would like to see a fresh draft of the proposal.
Board members set titles for four other initiatives, all of which would create an out-of-school learning opportunities agency, funded through various combinations of an income tax credit and the limitation or repeal of the net operating loss tax deduction for corporations.
Julie Pelegrin, who replaced Gelender for the remainder of the hearing, was reluctant to find adherence to the single subject in the version of the proposal which raised money for the programming through the income tax deduction, but filled in lost general fund dollars with the "net operating loss" limitation.
“I think it’s a tenuous connection to say that you’re offsetting a tax credit with the elimination of the NOL,” she said. “The NOL has no relationship to what you’re doing now.”
She also worried about a "logrolling" effect, whereby people who support eliminating the net operating loss deduction would vote for the measure, regardless of how they felt about out-of-school learning, and vice versa.
Taxes would increase by up to $223.7 million under the different versions.
The designated representatives are Amber Drevon of Aurora and Charles Dukes of Denver. However, Tony Lewis, the executive director of the Donnell-Kay Foundation, spoke for them in saying that they planned to continue with all four measures.
The four proposals are similar to eight others that have come before the Title Board since last year, two of which have also had titles set. Lewis said it was “difficult to tell” how many children would be served by the programming in the proposals. He said that the two designated representatives, the Donnell-Kay Foundation, and providers of out-of-school learning all wrote the initiatives.
The Title Board also declined again to set a title for a proposed initiative to establish a procedure for expungement of criminal records. On Jan. 2, board members blocked the measure because it funded a variety of programs unrelated to expungement, creating a second subject.
Claiming that the board’s prior questions were “posed so quickly, all at once, that we didn’t hear them,” the proponents, Stephen Ball and Paul Ball of Denver, wrote that their single subject was “social welfare.”
“I’m still uncomfortable with the range of programs,” said Pelegrin, “I would be very uncomfortable with going for a single subject that was ‘social welfare,’ just to me because that’s too broad and too vague.”
She did acknowledge the “catch-22” for the proponents: expungement fees have to go to some purpose, but the programs being funded will not adhere to the single subject rule.