The Single-subject Requirement for Initiatives

• Publication year: 2000
• Pages: 65

29 Colo.Law. 65 Colorado Lawyer 2000.

2000, May, Pg. 65. The Single-Subject Requirement for Initiatives

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65

Vol. 29, No. 5, Pg. 65

The Colorado Lawyer
May 2000
Vol. 29, No. 5 [Page 65]

Specialty Law Columns
Government and Administrative Law News
The Single-Subject Requirement for Initiatives
by Rebecca C. Lennahan

As the general election approaches, information about initiatives begins to flood voters. Radio, television, and newspapers carry stories about potential initiative measures Petition circulators approach voters as they buy groceries and shop at malls. Citizens who are unhappy with the legislature?s defeat of bills, or who do not want an issue compromised in the give-and-take of legislative debate, try to take their measures directly to the people through the initiative process. Successfully negotiating the hurdles of the single-subject requirement has become an important aspect of that process

Colorado?s constitution allows citizens to initiate both constitutional amendments and statutes. The legislature must refer constitutional amendments, and may refer statutes, to the voters. Measures placed on the ballot using the initiative or the referendum are not subject to the Governor?s veto. On the ballot, citizen initiatives are designated by number, and measures referred by the legislature are designated by letter

Citizen-proponents who wish to initiate a constitutional amendment or statute must submit a written draft to the legislature?s professional research and drafting staffs for review and comment. When the text is final, proponents file it with the Secretary of State, who then convenes the Ballot Title Setting Board ("Board").1 The Board?s function is to draft and adopt a title for the measure, which will appear at the top of petitions and on the ballot if enough signatures are gathered. If anyone?proponents, opponents, or other interested citizens?objects to the Board?s work, he or she may appeal directly to the Colorado Supreme Court ("Court"), so title questions can be resolved prior to the election. The recent single-subject cases discussed in this article have arisen out of these expedited proceedings.

This article provides background information about the single-subject requirement, discusses legislative practices and the Court?s concern about voter surprise and fraud, and analyzes the Court?s single-subject test and how it applies to omnibus measures. The article also discusses the importance of drafting measures carefully and provides tips for initiative proponents.

The Single-Subject Requirement

In 1994, Colorado voters adopted a constitutional amendment that prohibits the submission of any initiative measure that contains more than one subject.2 The amendment also requires that the single subject be stated clearly in the measure?s title. The single-subject requirement has applied to legislative bills since statehood,3 and the amendment extended the requirement?s application to constitutional amendments referred by the legislature.4

The amendment represented a reaction to the adoption of the Taxpayer?s Bill of Rights ("TABOR"), which was approved in 1992.5 Most voters probably understood TABOR to be a requirement that they approve new taxes or tax rate increases. However, as state and local governments began to implement TABOR, it became clear that TABOR covered many other matters, including revenue limits and refunds of excess revenues, annual elections on fiscal issues, votes on multi-year financial obligations in addition to debt, and local governments? opting out of state programs delegated to them for administration. The 1994 "Blue Book," the analysis of ballot issues prepared by the legislature?s research staff, cited TABOR as a measure that might not have been on the ballot if a single-subject requirement had been in place.6 Subsequently, the Court has stated expressly that TABOR would have violated the single-subject requirement.7

In submitting the single-subject constitutional amendment, the legislature wanted to protect voters from making changes inadvertently, particularly changes that were as sweeping as those made by TABOR. The legislature also was aware of court cases that struck down restrictions on initiative rights,8 and it did not want the single-subject requirement to be construed as infringing on those rights. Therefore, in its 1994 session, the legislature enacted statutory rules for the application of the single-subject requirement in the event the amendment was adopted. This legislation incorporated the standards the courts and legislature had developed for applying the century-old single-subject requirement for legislative bills.9

CRS § 1-40-106.5 first recites the purposes of the single-subject requirement as set forth in the judicial decisions construing it. These purposes are to avoid the treatment of incongruous subjects in the same measure, or subjects having no necessary or proper connection, especially for the purpose of "logrolling" or securing the passage of measures that could not pass on their own merits, and to prevent surprise or fraud on the voters. The statute also provides that the single-subject requirement is to be construed liberally to prevent these practices and still preserve and protect the right of initiative. Finally, the statute states the legislature?s intent that the Board apply judicial decisions construing the single-subject requirement for bills and follow the legislature?s rules in considering bill titles.

With this blueprint for future application, few expected that applying the single-subject requirement to initiatives would cause any significant change in the initiative process, since the legislature had lived with the requirement for over a century. However, the Court has developed new single-subject jurisprudence for initiative titles. This result is attributable to the fundamental differences between the initiative and the legislative processes, the Court?s concerns about surprise and fraud on the voters, and measures that have pushed and sometimes exceeded the limits of the single-subject rule.

Legislative Practices

If the legislature?s rules in considering bill titles are to be applied, all participants in the initiative process need to understand what those rules are. The legislature applies the single-subject rule for legislative bills quite literally. Virtually all bill titles begin with the word "concerning," followed by a statement of the single subject. This helps to ensure that the subject is stated as a thing, a noun. A "subject," as the word implies, should not be an explanation, an argument on behalf of the bill, or a description of what the bill is intended to accomplish. The legislature tries not to use "and" when it states the single subject in titles because "and" implies more than one thing.10

Sometimes, in addition to the single subject, the title includes language that describes the contents of the bill in detail, but even then, the single subject appears before the first comma in the title. Legislative practice dictates that this additional language, referred to as the "trailer," is not the single subject itself, but an elaboration on it. The constitutional penalty for inaccurate title drafting is stiff?any subject treated in the bill but not expressed in the title is void.11

A legislator may choose a broad or narrow title. A broad title might cover a general subject (for example,"Concerning Motor Vehicles"). A narrow title would be more restrictive (for example, "Concerning an Increase in the Fee for Motor Vehicle Registration"). The choice of a broad or narrow title limits what is in the bill as it is introduced and the amendments that are adopted in the course of the legislative process.

The Court has observed that...