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.

Four ballot initiatives pertaining to oil and gas, voter approval of enterprises and Colorado’s direct democracy process received the go-ahead on Friday after the state Supreme Court upheld the titles appearing before voters should the measures collect sufficient signatures.

Initiatives 284 and 297 from designated representatives Greg Kishiyama, Ned Southwick and Keith Venable would prevent states and localities from inhibiting “consumer choice” to install natural gas in homes and businesses, unless such regulations are grounded in safety protocols. One proposal would amend state statute, while the other is a constitutional change.

Janette Susan Rose protested the Title Board’s decision to advance the measures, claiming there were several unstated goals ranging from potential implications for energy efficiency standards and public utility rates to “antitrust regulation.”

“The Initiative violates the single subject rule because, by failing to define the critical terms ‘restrictions’ and ‘limit,’ the Initiative’s complexity and omnibus proportions are hidden from the voters, and the measure fails to inform voters of the policies its passage would affect,” read Rose’s petition to the court. She specifically worried about the uncertain effects to home rule jurisdictions' existing laws.

In setting a ballot title, the three-member Title Board must determine that an initiative adheres to a single subject per the constitution. The panel does not generally speculate about the impact of a proposal when deciding whether to issue a title, unless the measure is so unclear that articulating a single subject is impossible.

Rose added that the measure may itself actually inhibit consumer choice by creating an incentive for builders to install natural gas over other sources of energy, possibly misleading voters.

In defending the Title Board’s wording, Assistant Attorney General Emily Buckley argued that “the title need not expound on the measure’s effects on natural gas installation or home rule jurisdictions” in order to be clear to voters.

William Hunter Railey petitioned the court to consider Initiative 295, which would require voter approval for new enterprises that anticipate collecting in excess of $100 million in fees and surcharges during their first five years of operation. Enterprises are government-owned businesses that receive little public funding and are exempt from the revenue caps of the Taxpayer Bill of Rights.

Railey alleged that the measure from designated representatives Michael Fields and Lindsey Singer contained a second subject of reduced state spending, albeit through a circuitous and indirect manner.

“Once an enterprise reaches the $100 million revenue threshold during the first five fiscal years of operation, it must obtain voter approval to continue to be an enterprise — but that can occur only at a statewide general election — which may be two years in the future,” read Railey’s brief.

During those two years, he reasoned, the enterprise may require supplemental appropriations from the state if its revenue is capped. State revenue, in turn, is subject to TABOR restrictions, meaning that the state will have to cut spending elsewhere to shift money to the enterprise.

“Petitioner’s alleged second subject is a theoretical legal dispute,” responded Assistant Attorney General Anne M. Mangiardi on behalf of the Title Board.

Finally, the court also affirmed the ballot title of Initiative 299 from designated representatives Mike Spaulding and Donald L. “Chip” Creager III, which would create a constitutional right of ballot initiative in most divisions of government, and would alter several procedural requirements of the initiative process.

The measure is almost identical to Initiative 245, whose title the court upheld in early May. Kelly Brough, the president and CEO of the Metro Denver Chamber of Commerce, objected to both proposals on the grounds that it was unclear whether they eliminated or preserved the single subject requirement.

The Title Board’s brief defending its actions argued that the measure does provide for the single subject rule to remain in effect, despite repealing large portions of the constitution. Even if one provision in a measure was confusing, Assistant Attorney General Michael Kotlarczyk wrote, a title was valid as long as the single subject of the overall measure was evident.

After Friday's announcement, there remain seven ballot measures whose title challenges are pending before the court.

Once a title is set, proponents are allowed to gather signatures for placement on the statewide ballot. Due to the COVID-19 pandemic, circulation by mail and email are permitted following Secretary of State Jena Griswold's issuance of temporary guidance.

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