Title Board Meeting of April 1, 2020

The Title Board conducted a virtual meeting on April 1, 2020 to consider setting the ballot titles for 11 proposed initiatives.

The Colorado Supreme Court has affirmed the ballot titles of two proposed initiatives that would impose far-reaching changes to the ballot initiative process itself and create an out-of-school learning opportunities agency through an unconventional funding mechanism.

Initiative 245, nicknamed the “Petition Rights Amendment,” would create the right to legislate by ballot initiative in most divisions of state and local government, and would impose a $3,000 fine on those who harass or obstruct petition circulators. Among the many modifications to the initiative process, the constitutional amendment would lower the number of signatures required to place an initiative on the ballot, remove technical affidavit errors as a reason to invalidate signatures, and give the state Supreme Court sole jurisdiction to hear protests of ballot titles.

Currently, the three-member Title Board entertains such challenges, with the high court being the appellate body of last resort. In accordance with state law, the Title Board determines if a measure pertains to a single subject and, if so, sets a title to appear before voters that is brief yet also encompasses all central features of a measure.

Initiative 245 was one of three similar versions of the amendment that received an at-times rocky reception before the Title Board. Objector Kelly Brough argued that the title omitted several important provisions.

“While concise titles are required, the scope of #245 and its revision to the lawmaking process that governs our government at all levels is undeniably enormous,” her attorney, Thomas M. Rogers III, wrote in the brief.

Designated representatives Natalie Menten and Donald L. “Chip” Creager III countered that they believed the board had already made the title too long by adding more detail than necessary.

“We face only a delay tactic about word choice,” they argued. “Stick to general topics, not details of interest only to lawyers and petition historians. The test is, ‘How does this affect Joe’s daily life, his rights, or his voting?’ Joe will never protest a petition, and has no interest in technicalities, legalese, and esoterica.”

Creager and Menten also called out one alleged inaccuracy in the language that the Title Board set and complained that the stay-at-home order during the pandemic — which they characterized as an “illegal confinement law” — abridged their constitutional petitioning rights. They asked the court to allow unlimited time for signature gathering to place measures on the November 2021 ballot.

Michael Kotlarczyk, assistant attorney general and counsel for the Title Board, defended the initiative’s title as a balance between listing all ways in which the law would change and giving voters a clear idea about what their yes or no vote would mean.

“It is notable that Petitioner thinks the Board erred on the side of too little specificity, while the Proponents believe the Board provided too much,” he observed.

Initiative 250, with designated proponents Chad Cookinham and Camille Howells, would create an out-of-school learning opportunities agency funded through donations that people could use to claim a new state income tax credit. However, to offset the loss of money to the state from the credit, the proposal would also limit the corporate net operating loss dedication, with the state setting the deduction rate as needed.

Objector Kenneth Nova through his attorney, Rogers, argued that since a limitation on a tax deduction amounts to an increase in taxes paid, the ballot title should include required tax increase language mandated by the Taxpayer Bill of Rights.

“Despite the fact that the measure will result in an annual nine-figure tax increase for Colorado corporate income tax filers, the Title Board concluded that the mandatory ‘shall [state] taxes be increased’ language of Section 3(c) of TABOR is not required for the measure,” Rogers wrote.

Benjamin J. Larson, on behalf of the proponents, responded that the interplay of the two tax provisions resulted in no net revenue gain to the state, and that Nova’s argument called for including the TABOR language “any time a single taxpayer or group of taxpayers will pay more under a proposed measure that otherwise reduces state taxes.”

Voters would not be misled into voting for a surreptitious tax increase, Larson contended, because “the Titles clearly and unambiguously describe the limit on the NOL deduction as offsetting state revenues lost from the new tax credit.”

The court affirmed both titles without elaboration.

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