Case No.: 2017SA305. Petitioner: Scott Smith. Respondents: Daniel Hayes and Julianne Page, and

Similar documents
Respondents Suzanne Staiert, Sharon Eubanks, and Glenn Roper, in their official capacities as members of the Title Board (collectively,

COLORADO SUPREME COURT 1300 Broadway Denver, Colorado Original Proceeding Pursuant to Colo. Rev. Stat (2) Appeal from the Title Board

PETITIONERS: Timothy Markham; Chris Forsyth, RESPONDENTS: Greg Brophy and Dan Gibbs, and

COLORADO SUPREME COURT 1300 Broadway Denver, Colorado Original Proceeding Pursuant to Colo. Rev. Stat (2) Appeal from the Title Board

RESPONDENTS OPENING BRIEF

Petitioner: Timothy Markham v. Respondents: Greg Brophy and Dan Gibbs COURT USE ONLY. and

Case No.: 2018SA RESPONDENTS ANSWER BRIEF. COLORADO SUPREME COURT 2 East 14th Avenue Denver, Colorado 80203

PETITION TO REVIEW FINAL ACTION OF BALLOT TITLE SETTING BOARD CONCERNING PROPOSED INITIATIVE #129 ( Definition of Fee )

Initiative #76 would repeal existing article XXI of the Colorado Constitution in its

CFRR Exec Committee Told 1% Growth Limitation a Non-Starter Hill Poll shows ballot Initiative 66 starting off at only 36%

SUPREME COURT STATE OF COLORADO. 2 East 14th Avenue Denver, CO COURT USE ONLY Case No. 2014SA151

PETITIONERS ANSWER BRIEF

SUPREME COURT OF COLORADO 2 East 14 th Avenue Denver, CO 80203

2016 CO 55. Nos. 16SA153, 16SA154, In re Title, Ballot Title & Submission Clause for #132 and #133 Single Subject.

SUPREME COURT STATE OF COLORADO

In this consolidated original proceeding Philip Hayes. challenges the actions of the Title Setting Board in setting

RESPONDENTS ANSWER BRIEF ON PROPOSED INITIATIVE #145 ( MEDICAL AID IN DYING )

2014 CO 53. No. 14SA135, In re Matter of the Title, Ballot Title and Submission Clause for #129 Single Subject Clear Title.

SUPREME COURT STATE OF COLORADO

PETITIONERS RESPONSE BRIEF ON PROPOSED INITIATIVE #50 ( CONGRESSIONAL REDISTRICTING )

The Supreme Court upholds the action of the Title Board in. setting the title and ballot title and submission clause for

23.2 Relationship to statutory and constitutional provisions.

PETITIONER DONNA R. JOHNSON'S OPENING BRIEF

How to do a City Referendum

City Referendum Process

NOV 22 2a7 MOTION FOR REHEARING ON INITIATIVE #68. BEFORE THE COLORADO BALLOT TITLE SETflNG BOARD

Complaint for Declaratory and Injunctive Relief

2018 CO 55. No. 18SA19, In re People v. Sir Mario Owens, Constitutional Law Public Access to Court Records.

DISTRICT COURT, LARIMER COUNTY, COLORADO. 201 La Porte Avenue, Suite 100 Fort Collins, CO Phone: (970) Plaintiff:

RULE 4. Candidate Petitions. (Enacted 6/06/12)

County Referendum Process

RULE 5. Initiated Ordinance Petitions. (Enacted 6/06/12)

CITY OF BERKELEY CITY CLERK DEPARTMENT

South Dakota Constitution

PETITION FOR SUBMISSION OF PROPOSED COUNTY CHARTER

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EXECUTIVE WOMEN INTERNATIONAL is an organization which brings together key individuals from diverse businesses for the purpose of:

HOW TO DO A COUNTY REFERENDUM A Guide to Placing a County Referendum on the Ballot

DEFENDANT CITY OF LOVELAND S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Ramsey County, North Dakota Home Rule Charter Draft

LESHER COMMUNICATIONS, INC., et al., Plaintiffs and Respondents v. CITY OF WALNUT CREEK, Defendant and Appellant

Colorado Constitution

2015 CO 71. No. 13SC523, Rutter v. People Sentencing Habitual Criminal Proportionality Review Criminal Law.

How to do a County Referendum

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street, Denver, Colorado 80202

GUIDE ON HOW AND WHEN TO CALL AN ELECTION

COLORADO COURT OF APPEALS

POLK COUNTY CHARTER AS AMENDED November 4, 2008

Polk County Charter. As Amended. November 6, 2018

CHARTER CITY OF GOLDEN COLORADO

COGA S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE

Certification of Word Count 2083

CCI 17 2D7. Colorado Secretary of State PROPONENTS RESPONSE IN OPPOSITION TO MOTION FOR REHEARING

PETITIONER S OPENING BRIEF ON PROPOSED INITIATIVE #132 ( COLORADO REDISTRICTING COMMISSION )

CARLISLE HOME RULE CHARTER. ARTICLE I General Provisions

COLORADO COURT OF APPEALS

ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS AND DENYING PLAINTIFFS MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Municipal Township Initiative and Referendum

FOR COUNTY, MUNICIPAL AND DISTRICT

CITY OF LOS ANGELES INITIATIVE, REFERENDUM & RECALL PETITION HANDBOOK

Referendum. Guidelines

GUIDE TO FILING REFERENDA

HOW TO DO A COUNTY INITIATIVE

TABLE OF CONTENTS. Introduction. The Citizen Initiative Process

S18A1156. FULTON COUNTY v. CITY OF ATLANTA et al. In December 2017, the City of Atlanta enacted an ordinance to annex

09SA248, People v. Owens: Unitary Review in Death Penalty Cases Extensions. The People immediately appealed to the Colorado Supreme

Amendment (with title amendment)

BEFORE THE BOARD OF ELECTIONS LUCAS COUNTY, OHIO

THE STATE OF NEW HAMPSHIRE SUPREME COURT

Title 30-A: MUNICIPALITIES AND COUNTIES

COMPLAINT FOR DECLARATORY JUDGMENT

IN THE SUPREME COURT OF FLORIDA CASE NO. SC JEFFREY E. LEWIS, et al., Appellants, LEON COUNTY, et al., Appellees

CITY OF LOS ANGELES ORDINANCE INITIATIVE, REFERENDUM, RECALL & CHARTER AMENDMENT PETITION HANDBOOK

CITY COUNCIL STUDY SESSION MEMORANDUM

SECRETARY OF STATE S MOTION FOR PRELIMINARY INJUNCTION. (hereinafter the Secretary ) hereby submits his Motion for Preliminary Injunction.

RICHLAND COUNTY, NORTH DAKOTA HOME RULE CHARTER PREAMBLE

Illinois Constitution

Follow this and additional works at:

A Resident's Guide to Changing the Broomfield Municipal Code

WHEN AND HOW TO CALL AN ELECTION

RECALL ELECTIONS. Summary. Procedures

*Admission pro hac vice pending AMICUS CURIAE BRIEF FOR THE CENTER FOR COMPETITIVE POLITICS IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

ARTICLE I GENERAL PROVISIONS

Report of the Constitution and Bylaws Committee to the Board and Delegates of the Libertarian Party of Colorado 2018 State Convention

MUNICIPAL ELECTION GUIDE FOR COUNCIL CANDIDATES AND POLITICAL COMMITTEES. General Municipal Election April 3, 2018

A PRIMER ON UNITED STATES VOTING BEHAVIOR

BOARD OF SUPERVISORS ELECTION DEADLINES CHARTER AMENDMENT SCHEDULE FOR November 5, 2019 ELECTION

FECEIVED JAN Colorado Secretary of State. COLORADO TITLE SETTiNG BOARD

Colorado Secretary of State Election Rules [8 CCR ]

2018 CO 51. No. 17SA113, In re People v. Shank Public Defender Representation Statutory Interpretation.

TABLE OF CONTENTS. Introduction. The Recall Process

Recall Guidelines CITY OF EDGEWATER. Prepared by:

Home Rule Charter. Approved by Hillsborough County Voters September Amended by Hillsborough County Voters November 2002, 2004, and 2012

September 10, 2007 TO: BOARDS OF ELECTIONS Members, Directors & Deputy Directors RE: Referendum Petition of Sub. S.B. No.

COURT USE ONLY Supreme Court Case No. 2014SA147 and 14SA148. Petitioners: Vickie L. Armstrong and Bob Hagedorn,

ELECTION FINANCES AND CONTRIBUTIONS DISCLOSURE ACT

COMPLAINT FOR JUDICIAL REVIEW OF AGENCY ACTION

State Candidate s Manual: Individual Electors

Initiatives and Referenda Handbook

CHAPTER 2 INITIATIVE, REFERENDUM AND LEGISLATIVE SUBMISSION

Transcription:

COLORADO SUPREME COURT 2 East 14th Avenue Denver, CO 80203 Original Proceeding Pursuant to Colo. Rev. Stat. 1-40-107(2) Appeal from the Ballot Title Board In the Matter of the Title, Ballot Title, and Submission Clause for Proposed Initiative 2017-2018 #66 (Limit on Local Housing Growth) Petitioner: Scott Smith v. Respondents: Daniel Hayes and Julianne Page, and Title Board: Troy Bratton, Julie Pelegrin, and Melanie Snyder Attorneys for the Title Board: CYNTHIA H. COFFMAN, Colorado Attorney General MATTHEW D. GROVE Assistant Solicitor General* 1300 Broadway, 6th Floor Denver, Colorado 80203 Phone: (720) 508-6157 Fax: (720) 508-6041 Email: matt.grove@coag.gov Registration Number: 34269 *Counsel of Record TITLE BOARD S OPENING BRIEF DATE FILED: January 19, 2018 4:30 PM COURT USE ONLY Case No.: 2017SA305

TABLE OF CONTENTS STATEMENT OF THE ISSUE PRESENTED FOR REVIEW... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 I. The Board correctly found that #66 contains a single subject.... 3 A. Standard of review.... 3 B. #66 contains only one subject.... 4 CONCLUSION... 11 ii

TABLE OF AUTHORITIES Cases In re Ballot Title 1999-2000 #25 974 P.2d 458 (Colo. 1999)... 4 In re Title, Ballot Title, & Submission Clause for 2011-2012, #45 274 P.3d 576 (Colo. 2012)... 4 In re Title, Ballot Title, & Submission Clause for Proposed Initiative 2001-2002 #43 46 P.3d 438 (Colo. 2002)... 5, 7, 11 Matter of Title, Ballot Title & Submission Clause for 2013-2014 #76 2014 CO 52, 333 P.3d 76 (Colo. 2014)... 7, 9 Matter of Title, Ballot Title & Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to Constitution of State Adding Section 2 to Article VII (Petition Procedures) 900 P.2d 104 (Colo. 1995)... 7, 8 Matter of Title, Ballot Title, and Submission Clause for 2017-2018 #4 395 P.3d 318 (Colo. 2017)... 3, 5, 9, 10 Constitutions COLO. CONST. art. V, 1(5.5)... 1, 4 iii

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW Whether the Title Board ( Board ) erred in finding that Proposed Initiative #66 ( #66 ) contains a single subject under Article V, 1(5.5) of the Colorado Constitution. STATEMENT OF THE CASE Respondents Daniel Hayes and Julianne Page seek to circulate Initiative #66 to obtain the required number of signatures to place the measure on the general election ballot in November 2018. #66 is a proposed amendment to the Colorado Revised Statutes that would limit housing growth in Colorado. See Attachment to Petition for Review at 6-7. It seeks to accomplish this goal in two ways. First, the proposed statutory change would give to the electors of every city, town, city and county, or local county, whether statutory or home rule the right to limit housing growth by initiative and referendum without legislative inhibition or penalty. Id. at 6 (section 1(2)). Second, it provides that residential housing growth in a certain set of jurisdictions the Cities and Counties of Broomfield and Denver; and Adams, Arapahoe, Boulder, Douglas, El Paso, Jefferson, Larimer, and Weld Counties 1

shall not exceed one percent annually for the years 2019 and 2020, and imposes a moratorium on residential housing units within these counties until January 1, 2019. Id. (section 1(3) and 1(4)). However, [b]eginning 2021 such growth limitations may be amended or repealed by initiative and referendum or otherwise shall remain in effect. Id. The Title Board granted single-subject approval for #66 and set a title on December 6, 2017. See Attachment to Petition for Review at 8-9. Petitioner Smith filed a timely motion for rehearing. Id. at 10-13. The Board held another hearing on December 20, 2017, and denied the motion for rehearing. Id. at 15. The final version of the ballot title reads: A change to the Colorado Revised Statutes concerning limitations on the growth of housing, and, in connection therewith, permitting the electors of every city, town, city and county, or county to limit housing growth by initiative and referendum; permitting county voters by initiative and referendum to limit housing growth uniformly within the county, including all or parts of local governments within the county; establishing procedural requirements for initiatives for local governments, whether statutory or home rule, concerning limits on housing growth; and for the city and counties of Broomfield and Denver, and in the counties of Adams, Arapahoe, Boulder, Douglas, El Paso, Jefferson, Larimer, and Weld: 1) prohibiting the 2

issuance of new permits for privately owned housing units by local governments located in whole or in part within such counties and such cities and counties until January 1, 2019, 2) limiting the growth of privately owned residential housing units to one percent annually starting in 2019, and 3) permitting the one percent growth limitation to be amended or repealed by initiative and referendum commencing in 2021. Id. at 14-15. After the title and submission clause were set, Smith filed his petition for review in this Court. SUMMARY OF THE ARGUMENT The Title Board correctly found that #66 contains only a single subject: a limitation on local housing growth. As the Title Board noted, this Court approved the title set for a nearly identical title just last year. See Matter of Title, Ballot Title, and Submission Clause for 2017-2018 #4, 395 P.3d 318 (Colo. 2017). The fact that #66 is a statutory initiative, rather than a constitutional one, does not change its scope. ARGUMENT I. The Board correctly found that #66 contains a single subject. A. Standard of review. When this Court reviews the Title Board s single subject decision, [it] employ[s] all legitimate presumptions in favor of the propriety of the 3

Title Board s actions. [It] will only overturn the Title Board s finding that an initiative contains a single subject in a clear case. In re Title, Ballot Title, & Submission Clause for 2011-2012, #45, 274 P.3d 576, 579 (Colo. 2012) (quotation omitted). The Title Board agrees that Smith preserved the single-subject issue by raising it in his motion for rehearing. B. #66 contains only one subject. The Colorado Constitution provides that an initiative may relate to only one subject: No measure shall be proposed by petition containing more than one subject. COLO. CONST., art. V, 1(5.5). A proposed measure that tends to effect or to carry out one general objective or purpose presents only one subject. In re Ballot Title 1999-2000 #25, 974 P.2d 458, 463 (Colo. 1999). In contrast, to constitute more than one subject, the text of the measure must relate to more than one subject and it must have at least two distinct and separate purposes which are not dependent upon or connected with each other. In re Title, Ballot Title, & Submission Clause for Proposed Initiative 2001-2002 #43, 46 P.3d 438, 441 (Colo. 2002) (quotations omitted). 4

If #66 were a constitutional initiative, there would be no doubt that it would satisfy the single subject requirement. This Court approved a closely related and similarly structured constitutional initiative just last year. See 2017-2017 #4, 395 P.3d at 320-322. #66, however, proposes changes to the Colorado Revised Statutes. Those proposed statutory changes purport to alter certain constitutional provisions relating to ballot qualification for local initiatives and referenda. While #4 largely did the same thing, it did so by amending the Colorado Constitution. It is this difference that Petitioner maintains creates single-subject concerns. Notwithstanding Petitioner s arguments, the Board correctly determined that #66 contains only one subject: limiting housing growth in Colorado. In 2017-2018 #4, this Court held that the two central provisions of that initiative limit housing growth to one percent annually in ten jurisdictions until 2021 and prohibit permits for new residential housing units in the same jurisdictions until 2019. 395 P.3d at 321. Both of these provisions, the Court held, tend to carry out the one general objective of limiting housing growth in Colorado by 5

providing a means for reducing the number of new homes built. Id. (internal quotation omitted). #66 shares the same goal as #4, but because #66 is a statutory initiative, it both adds material to the Colorado Revised Statutes and purports to alter the extent to which certain municipalities may exercise their constitutional authority over the initiative and referendum process. Petitioner contends that this overlap between statutory and constitutional provisions is a single-subject violation. The Title Board maintains that concerns about the overlap relate only to the ultimate constitutionality of the initiative a consideration outside the Board s purview and not to the number of subjects that the initiative contains. Citing three cases from this Court, Petitioner s motion for rehearing argued that including [t]hese provisions in the initiative violate[s] the single subject requirement by making a procedural change to the home rule authority of municipalities regarding initiatives and referenda. Attachment to Pet. for Review at 12 (citing In re Title, Ballot Title & Submission Clause for Proposed Initiative 2001-2002 #43, 6

46 P.3d at 445-45; Matter of Title, Ballot Title & Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to Constitution of State Adding Section 2 to Article VII (Petition Procedures), 900 P.2d 104, 10 (Colo. 1995); Matter of Title, Ballot Title & Submission Clause for 2013-2014 #76 2014 CO 52, 30, 333 P.3d 76, 84 (Colo. 2014)). Each of these cases is distinguishable and none holds that a proposed statutory initiative violates single-subject requirements by ostensibly limiting rights that are guaranteed by the Colorado Constitution. In 2001-2002 #43, for example, the Court considered an initiative that would both eliminate the single subject requirement and establish new procedural measures by which initiatives are placed on the ballot. 46 P.3d at 446. In holding that #43 contained multiple subjects, the Court noted that whereas the procedural measures govern how a proponent exercises his right to petition, the single-subject requirement controls what an initiative placed on the ballot may contain. Id. (emphasis in original). As the Court noted, A voter of average intelligence would be quite surprised to find out that an 7

initiative purporting to deal with procedural aspects of the right to petition drastically altered the substance of measures on the ballot. Id. The proposed initiative suffered from similar problems in Matter of Title, Ballot Title & Submission Clause, & Summary With Regard to a Proposed Petition for an Amendment to Constitution of State Adding Section 2 to Article VII (Petition Procedures), 900 P.2d 104 (Colo. 1995). The opinion noted that: The most cursory examination of the text of the Initiative reveals that it includes several subjects. For example, it establishes the retroactive creation of substantive fundamental rights in all charter or constitutional petitions approved after 1990. It provides that in construing the effect of such petitions courts must in all cases consider the word shall as a mandatory command, regardless of whether the context might otherwise indicate. It establishes standards for judicial review of filed petitions, requiring strictest scrutiny and full enforcement of violations of such petitions, and provides that challenges to petitions on single-subject or ballot title grounds can be upheld only if beyond a reasonable doubt to a unanimous supreme court. In addition, the Initiative contains numerous and varied procedural and substantive provisions relating to recall, referendum, and initiative petitions. Id. at 109. As in 2001-2002 #43, the initiative would have affected both the process for petition qualification and review, and bestowed certain 8

fundamental rights on the citizens of the State of Colorado. The lack of a necessary and proper connection between the procedural and substantive aspects of the initiative was fatal to the proponent s single subject arguments. This Court cited the ruling in Matter of Title, Ballot Title, & Submission Clause for 2013-2014 #76, 2014 CO 52, 30, 333 P.3d 76, 84 (Colo. 2014), in its opinion in 2017-2018 #4, noting that unlike in 2013-2014 #76, Initiative #4 does not, for example, simultaneously add to, repeal, replace, and preempt existing constitutional and statutory provisions. 395 P.3d at 322. Initiatives that suffer from these shortcomings create logrolling problems situations where unrelated constituencies may be convinced to support a measure that contains disparate, unrelated provisions. But as was the case in #4, [t]here is no threat of logrolling here, because those who favor limits on housing growth would also favor establish procedures through which electors may implement those limits. 395 P.3d at 322. That remains true whether the provisions appear in statute, the Colorado Constitution, or elsewhere. It is the substance of the proposed initiative, and not the 9

location of the laws that it amends or repeals, that should dictate the outcome of the single-subject inquiry. In conclusion, the Title Board s ruling should be affirmed because #66 does precisely the same thing that #4 attempted to do the only difference was that, because #4 proposed a change to the Colorado Constitution, its changes could undoubtedly override preexisting constitutional provisions concerning municipal authority over local initiatives. But that issue goes to the ultimate constitutionality of the measure, not the single-subject question. As this Court noted with respect to #4, the possibility that a portion of the initiative that implements the initiative s central goal might alter the power of homerule municipalities does not render it a distinct and separate subject. 395 P.3d at 421. #66 contains similar implementation measures that, as with #4, apply only in the context of local proposals to regulate housing growth. Id. Because they are focused exclusively on the manner in which #66 would be effectuated, those provisions are not a disconnected or incongruous attempt to shift voting powers broadly, but rather [are] properly connected to the central goal of limiting housing 10

growth in Colorado. Id. (internal quotations omitted). To borrow the Court s reasoning in 2001-2002 #43, regardless of the location of the affected laws, voters would not be surprised to learn that an initiative seeking to place limits on local housing also includes provisions that are designed to implement the initiative s goals. Because that is all that #66 does, it contains only a single subject and the Title Board s ruling should be affirmed. CONCLUSION For the reasons given above, the Court should affirm the Board s decision regarding #4. Respectfully submitted on this 19 th day of January, 2018. ATTORNEY GENERAL CYNTHIA H. COFFMAN /s/ Matthew D. Grove Matthew D. Grove, 34269* Assistant Solicitor General Attorney for Title Board *Counsel of Record 11

CERTIFICATE OF SERVICE This is to certify that I served the TITLE BOARD S OPENING BRIEF and related documents upon the following counsel of record and parties through either ICCES or FedEx overnight delivery this 19 th day of January, 2018, addressed as follows: Heather Hanneman (via ICCES) Recht Kornfield PC 1600 Stout Street, #1000 Denver, CO 80202 Attorney for Petitioner Scott E. Smith Daniel Hayes, pro se (via FedEx) 5115 Easley Road Golden, CO 80403 futuredenver@gmail.com Respondent Julianne Page, pro se (via FedEx) 3565 Kline Street Wheat Ridge, CO 80033 julipage13@gmail.com Respondent /s/ Matthew D. Grove 12