Campbell v. Hobbs , 76 P.3d 460 ( 2003 )

Chief Justice MULLARKEY

delivered the Opinion of the Court.

These appeals pursuant to section 1-40-107(2), 1 C.R.S. (2002), challenge the actions of the title board ("the board") setting the title, ballot title, submission clause, and summary (collectively, "the title") for proposed initiatives 2003-04 # 32 ("# 82") and 2003-04 #83 ("#88"); and refusing to set titles for proposed initiatives 2008-04 #21 ("# 21") and 2008-04 # 22 ("# 22").¹

We hold that # 21, # 22, # 82, and # 83 all contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution. Accordingly, with respect to #21 and # 22, we affirm the action of the board refusing to set the titles. With respect to # 32 and #33, we reverse the action of the board and remand this matter to the board with directions to strike the titles and return the initiatives to the proponents. Because we find that all four measures contain multiple subjects, we do not consider whether the titles set by the board conform to the requirements of section 1-40-106(8).

I. Facts and Procedural History

Each of the proposed initiatives would add a new section entitled "Petitions" to article VII, the "Suffrage and Elections" article of the Colorado Constitution. Much of the language in the four measures is identical. The dispute centers on a sentence in subsection 3(a) of # 21 and # 22, which states: "Except on courts, lawyers shall not be ballot title setters" ("the attorney provision"). By a vote of 2-1, the board refused to set titles for #21 and #22, finding that the measures contained multiple subjects. Board member Alan J. Gilbert concluded that the attorney provision addressed a separate subject because it imposed a limit on the authority of the Attorney General. Board member William Hobbs concurred with Gilbert on the attorney provision, and he also would have found additional subjects in other parts of the initiatives.

In #32 and #33, Gilbert's single subject concerns were addressed. The attorney provision was changed to read: "Except on courts, lawyers other than the Colorado attorney general in person shall not be ballot title setters" (emphasis added). Subsequent ly, the board voted 2-1 to set titles for # 82 and #38, with Gilbert now finding only a single subject and Hobbs again finding multiple subjects.

II. Analysis

Under article V, section 1(5.5) of the Colorado Constitution, no initiative can be proposed or enacted that contains more than one subject. Colo. Const. art. V, § 1(5.5). To violate the single subject requirement, an initiative must: 1) "relate to more than one subject" and 2) have "at least two distinct and separate purposes which are not dependent upon or connected with each other." In re Public Rights in Waters II, 898 P.2d 1076, 1078-79 (Colo.1995).

We need not discuss the development and application of this test in detail here because we have done so in three recent cases that address earlier versions of the initiatives now before us. See In re Proposed Initiative 2001-02 # 43, 46 P.3d 438 (Colo.2002) ("# 43"); In re Proposed Petition to Add Section 2 of Article VII to the Colorado Constitution, 907 P.2d 586 (Colo.1995) ("Petition Procedures II"); In re Proposed Petition to Add Section 2 of Article VII to the Colorado Constitution, 900 P.2d 104 (Colo.1995) ("Petition Procedures I"). The initiatives at issue in both #48 and Petition Procedures I contained multiple subjects, and the initiative involved in Petition Procedures II did not.

We described the initiative in Petition Procedures II as having a "single, if quite general, subject." - Petition Procedures II, 907 P.2d at 590. It proposed a "battery" of procedures governing the exercise of the right of initiative and referendum. Id. at 590-91; see also # 43, 46 P.3d at 444.

In Petition Procedures I, we found several subjects. In addition to changing the initiative and referendum procedures, the proposal also addressed recall rights. It retroactively created fundamental rights in all constitutional and charter initiatives adopted after 1990, and redefined terms used in those initiatives. Petition Procedures I, 900 P.2d at 109.

In # 43, we examined each challenged provision to determine if it was a procedural change directly related to the central purpose of the initiative. Relying on Petition Procedures I, we described the central purpose of the initiative as "liberalizing the process by which initiative and referendum petitions are placed on the ballot...." # 43, 46 P.3d at 444. We found three provisions that were not directly related to that central purpose. These were provisions: eliminating the single subject requirement; prohibiting the repeal of article X, section 20 of the constitution by a single initiative; and prohibiting referendum petitions that reduce property rights. Id. at 448.

As in # 43, the purpose of initiatives # 21, #22, # 32, and #88 is to liberalize the procedure for initiative and referendum petitions. All four of the initiatives are substantially similar, and all four state in subsection (1) that the purpose is "to create fundamental rights to strengthen citizen control of government."² The attorney provision in subsection (8)(a) of #21 and #22, however, prohibits any attorney from participating as a member of the title board. Subsection (8)(a) of #32 and #38 contains the same provision, but exempts the Attorney General from the prohibition.

The General Assembly established the title board "to designate and fix" a title "for each proposed law or constitutional amendment" that will appear on the ballot. § 1-40-106(1), 1 C.R.S. (2002). The members of the board are "the secretary of the state, the attorney general, and the director of the office of legislative legal services or the director's des-ignee." Id.

In the cases now before us, a majority of the board reasoned that the attorney provision included in #21 and #22 ("Except on courts, lawyers shall not be ballot title setters.") created a separate subject because it was not procedural in nature. Rather, it created a substantive restriction on the power of the Attorney General who, under the constitution, must be an attorney and has such duties as are provided by the constitution and laws of the state. Colo. Const. art. IV, §§ 4 and 1(1). Under the attorney provision, the Attorney General could neither be a member of the title board nor delegate those duties to an attorney.

Although we agree that the attorney provision creates an additional subject, we base our reasoning on broader grounds. We acknowledge that the attorney provision would restrict the powers and duties of the Attorney General. It also limits the powers and duties of the Secretary of State and the General Assembly to designate who will serve as the other two members of the title board.

More generally and perhaps more importantly, however, the provision also limits the substantive rights of all attorneys. By foreclosing any possibility that an attorney could serve on the title board, these initiatives restrict the political rights of all attorneys. Under our prior decisions, this exclusion from the political process is a substantive matter, not a procedural change to the petitions process. See Evans v. Romer, 854 P.2d 1270 (Colo.1993), cert. demied, 510 U.S. 959, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993).

In Evans v. Romer,³ we held that participation in the political process is not only a substantive right, but a fundamental right under the U.S. Constitution, which warrants the strictest judicial review when it is impeded. Id. at 1276 ("The right of citizens to participate in the process of government is a core democratic value which has been recognized from the very inception of our Republic up to the present time."). The U.S. Supreme Court has frequently held that participation in the political process includes the right to cast an effective vote and the right to be included on a ballot. See generally id. at 1276-80. In Evans v. Romer, we interpreted those rights to cover situations in which one specifically identifiable group of individuals is prohibited from seeking to enact protective legislation. Id. at 1283.

In the case at hand, the four initiatives propose that a specifically identifiable group, lawyers, be excluded from the ballot title board. Although this provision is much more limited than the exelusion in Evans v. Romer, it does affect the substantive rights of attorneys to participate in the political process. It has no necessary or proper connection to the purpose of the proposed measures, le., to liberalize the procedure for initiative and referendum petitions. We make no prediction as to whether excluding lawyers from the title board is constitutional, but at the very least, this exclusion is a substantive change in the law that should be separately addressed by the voters. Because these proposed measures would affect existing substantive rights in addition to the primary subject concerning the procedural mechanisms of the initiative and referendum process, #21 and #22 do not comply with the single subject requirement. Therefore, we affirm the board's decision to refuse to set titles for # 21 and # 22 on single subject grounds.

Under our broader analysis, proposed measures # 32 and # 38 also unlawfully contain multiple subjects because these measures still substantively prohibit all attorneys-other than the Attorney General-from participating in the political process via serving on the title board. Thus, we reverse the decision of the board with respect to these two titles.

III - Conclusion

Because initiatives #21, #22, #32, and #833 contain multiple purposes that are not dependent on or connected to each other, the proposed initiatives violate the single subject provision of article V, section 1(5.5) of the Colorado Constitution. Thus, the board was correct in refusing to set titles for # 21 and #22 and erred in setting titles for # 32 and #83. We remand this matter to the board with directions to strike the titles for # 82 and # 33 and to return the four initiatives to the proponents.

Justice COATS dissents, and Justice KOURLIS joins in the dissent.

APPENDIX A

Be it Enacted by the People of the State of Colorado

Article VII, Section 2

Petitions.

2003-2004: #21

(1) General provisions. This section shall create fundamental rights to strengthen citizen control of government. It shall be self-executing and severable and supersede conflicting constitutional, charter, and other state and local laws. Time limits shall be delayed only to expire on district business days. The state shall enforce strictest compliance with this section by all districts. All individual and class action suits shall be filed within one year of violations. Plaintiffs may require jury trial verdicts on all matters of law, fact, and damages. District violations shall not void petitions, nor be balanced or harmonized, nor excused by substantial compliance, good faith, ignorance, or emergencies, but shall require strictest serutiny and full enforcement. Successful plaintiffs shall also recover from defendant districts and (8)(d) violators all costs and attorney fees, contingent or not, but defendants who are not petition agents may recover only if juries find suits frivolous.

(2) Definitions. Within this section: (a) "Ballot titles" means all language on ballots de-seribing specific petitions.

(b) "Districts" means the state and all local governments, including enterprises, authorities, and other governmental entities.

(c) "Petitions" means citizen-sponsored re-ferenda and initiatives on legislative policy, not on specific uses of administrative procedure.

(d) "Shall" means mandatory.

(3) Petition rights. (a) Petition rights shall exist in all districts. Required district registered elector petition entries shall not exceed 5% of all district votes for secretary of state candidates in the last full-term general election for that office. The general assembly may reduce that number for proposed statutes. Any review and comment hearing shall be held within 7 days of filing initiative drafts. Initiative ballot titles shall not exceed 75 words, shall be set within 7 days of requests made at any time, and may also be set by any state district court. Except on courts, lawyers shall not be ballot title setters. Ballot title setters shall also be disqualified for bias or other good cause. Future local single-subject requirements shall exist by voter-approved petitions only. No summary or fiscal note shall be made at ballot title settings. Ballot title disputes and all single-subject challenges shall be filed with the supreme court within 5 days of such settings, finally decided within 7 days of filings, and very broadly construed to aid initiatives. Unless otherwise decided within 7 days of filings, initiatives shall conclusively be properly-titled single subjects. Decisions that initiatives contain multiple subjects shall list in writing all words not part of single subjects. Revisions that delete those words, and add no others, shall conclusively be single subjects. Decisions shall also provide ballot titles for initiatives and revisions. No other ballot title or single-subject rehearing, appeal, challenge, or decision shall be made. Within 7 days of requests for petition forms, districts shall print and deliver them and may charge actual costs up to one dollar per 100-entry form. All districts shall adapt the 1988 state petition forms without county entry spaces. Errors in petition forms or ballot titles shall not affect petitions. Peaceful petitioning at exits of buildings owned or leased by any district and then open to the public shall be protected. Except for petition form charges, no petition process fee, badge, bond, licensing, or training for petition agents or circulators shall be required. Any adult in Colorado may circulate any petition. Using paid circulators shall create no extra legal duty.

(b) In each district, no more than 10 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures, and detailed descriptions of emergencies justifying exceptions, shall each be passed by 3/4ths or more of all members of the elected local board or of each house of the general assembly. State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns, and such local measures 91 days or more after post-passage publication. Initial filing of referendum petitions with sufficient gross entries before that Qist day shall delay the effective date until the election or final petition invalidation. Measures rejected by voters shall then be void, and measures wholly or mostly similar shall then be passed again with voter approval only. Referendum petition ballot titles shall read, "SHALL (DISPUTED SECTIONS OF) (types of measures and numbers only) BE APPROVED?" Referendum petitions may begin at any time. They shall have no ballot title setting, appeal, or single-subject challenge, nor print texts of measures on petition forms. Only appropriations for district support are exempt from referendum petitions. This section shall not apply to referendum petitions reducing private property rights, such as zoning issues, which petitions may still lawfully exist.

(c) Within 12 months of petition form delivery, petitions shall be initially filed with sufficient gross entries. Petitions not initially filed 3 months or more before elections may be filed for the next election. Signers of petitions later notarized or verified shall be presumed district registered electors making valid entries until disproved in protests by clear and convincing evidence. Technical de-feets and minor variations and omissions shall be very broadly construed to aid petitions. Listing mailing addresses shown on registration records shall be valid. All protests shall be filed within 10 days of petition filings and not amended. Hearings shall be public, limited to reasons itemized in protests, and decided within 10 days of protest filings, using state judicial rules of evidence and procedure. Results of random sampling or machine reading of entries shall be exelud-ed. Each protested entry shall be examined separately at the hearing. If districts do not review equally all petitions before elections, no district review results shall be used to invalidate any such petition. Petitioners shall have 10 days after all validation procedures and appeals to refile with corrections and added petition entries made at any time, to which all procedures and appeals shall also apply. Third filings are barred. When initially filed, petitions with sufficient gross entries shall receive ballot numbers and ballot placement, which remain through all procedures and appeals.

(d) All state and local petitions on any subject shall be Article X, section 20(8) ballot issues at any November election. Petition agents may file up to 1,000 words for ballot information booklets and election notices sent to all active registered elector addresses. The length of such filings shall be the maximum for summaries of comments filed by opponents. For petitions, those booklets and notices shall be limited to such written comments filed by 45 days before elections and other information required by Article X, seetion 20(8)(b). Article V, section 1(7.5)(a)(Il) and the last sentence of Article X, section 20(8)(b)(v) shall not apply to petitions. Except for court cases, or petition or election procedures and materials required by law, no public resources shall be spent to comment on pending petitions after ballot titles are set, and no district shall prepare or use another summary or otherwise comment on such petitions. No public resources shall be spent to defend accused violators or reimburse fines. Each district and each other violator shall separately pay the state general fund at onee, without offset, the greater of $2,000 or three times all such illegally-spent public resources. Unless otherwise stated in their texts or unless their texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters. This section may be amended, superseded, or repealed by voter-approved petitions only. Except for state statutes subject to possible referendum petitions and enacted by March 1, 2005, all future state and local petition laws, rules, and regulations shall be Article X, section 208) ballot issues at any November election.

APPENDIX B

Be it Enacted by the People of the State of Colorado

Article VII, Section 2

Petitions.

2008-2004: #22

(1) General provisions. This section shall create fundamental rights to strengthen citizen control of government. It shall be self-executing and severable and supersede conflicting constitutional, charter, and other state and local laws. Time limits shall be delayed only to expire on district business days. The state shall enforce strictest compliance with this section by all districts. All individual and class action suits shall be filed within one year of violations. Plaintiffs may require jury trial verdicts on all matters of law, fact, and damages. District violations shall not void petitions, nor be balanced or harmonized, nor exeused by substantial compliance, good faith, ignorance, or emergencies, but shall require strictest serutiny and full enforcement. Successful plaintiffs shall also recover from defendant districts and (3)(d) violators all costs and attorney fees, contingent or not, but defendants who are not petition agents may recover only if juries find suits frivolous.

(2) Definitions. Within this section: (a) "Ballot titles" means all language on ballots describing specific petitions.

(b) "Districts" means the state and all local governments, including enterprises, authorities, and other governmental entities.

(c)"Petitions" means citizen-sponsored refer-enda and initiatives on legislative policy, not on specific uses of administrative procedure.

(d) "Shall" means mandatory.

(3) Petition rights. (a) Petition rights shall exist in all districts. Required district registered elector petition entries shall not exceed 5% of all district votes for secretary of state candidates in the last full-term general election for that office. The general assembly may reduce that number for proposed statutes. Any review and comment hearing shall be held within 7 days of filing initiative drafts. Initiative ballot titles shall not exceed 75 words, shall be set within 7 days of requests made at any time, and may also be set by any state district court. Except on courts, lawyers shall not be ballot title setters. Ballot title setters shall also be disqualified for bias or other good cause. Future local single-subject requirements shall exist by voter-approved petitions only. No summary or fiscal note shall be made at ballot title settings. Ballot title disputes and all single-subject challenges shall be filed with the supreme court within 5 days of such settings, finally decided within 7 days of filings, and very broadly construed to aid initiatives. Unless otherwise decided within 7 days of filings, initiatives shall conclusively be properly-titled single subjects. Decisions that initiatives contain multiple subjects shall list in writing all words not part of single subjects. Revisions that delete those words, and add no others, shall conclusively be single subjects. Decisions shall also provide ballot titles for initiatives and revisions. No other ballot title or single-subject rehearing, appeal, challenge, or decision shall be made. Within 7 days of requests for petition forms, districts shall print and deliver them and may charge actual costs up to one dollar per 100-entry form. All districts shall adapt the 1988 state petition forms without county entry spaces. Errors in petition forms or ballot titles shall not affect petitions. Peaceful petitioning at exits of buildings owned or leased by any district and then open to the public shall be protected. Except for petition form charges, no petition process fee, badge, bond, licensing, or training for petition agents or cireulators shall be required. Any adult in Colorado may circulate any petition. Using paid cireulators shall create no extra legal duty.

(b) In each district, no more than 10 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures, and detailed descriptions of emergencies justifying exceptions, shall each be passed by 3/4ths or more of all members of the elected local board or of each house of the general assembly. State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns, and such local measures 91 days or more after post-passage publication. Initial filing of referendum petitions with sufficient gross entries before that Qlst day shall delay the effective date until the election or final petition invalidation. Measures rejected by voters shall then be void, and measures wholly or mostly similar shall then be passed again with voter approval only. Referendum petition ballot titles shall read, "SHALL (DISPUTED SECTIONS OF) (types of measures and numbers only) BE APPROVED?" Referendum petitions may begin at any time. They shall have no ballot title setting, appeal, or single-subject challenge, nor print texts of measures on petition forms. Only appropriations for district support are exempt from referendum petitions.

(c) Within 12 months of petition form delivery, petitions shall be initially filed with sufficient gross entries. Petitions not initially filed 3 months or more before elections may be filed for the next election. Signers of petitions later notarized or verified shall be presumed district registered electors making valid entries until disproved in protests by clear and convincing evidence. Technical de-feets and minor variations and omissions shall be very broadly construed to aid petitions. Listing mailing addresses shown on registration records shall be valid. All protests shall be filed within 10 days of petition filings and not amended. Hearings shall be public, limited to reasons itemized in protests, and decided within 10 days of protest filings, using state judicial rules of evidence and procedure. Results of random sampling or machine reading of entries shall be exelud-ed. Each protested entry shall be examined separately at the hearing. If districts do not review equally all petitions before elections, no district review results shall be used to invalidate any such petition. Petitioners shall have 10 days after all validation procedures and appeals to refile with corrections and added petition entries made at any time, to which all procedures and appeals shall also apply. Third filings are barred. When initially filed, petitions with sufficient gross entries shall receive ballot numbers and ballot placement, which remain through all procedures and appeals.

(d) All state and local petitions on any subject shall be Article X, section 20(3) ballot issues at any November election. Petition agents may file up to 1,000 words for ballot information booklets and election notices sent to all active registered elector addresses. The length of such filings shall be the maximum for summaries of comments filed by opponents. For petitions, those booklets and notices shall be limited to such written comments filed by 45 days before elections and other information required by Article X, seetion 20(8)(b). Article V, section 1(7.5)(a)(II) and the last sentence of Article X, section 20(8)(b)(v) shall not apply to petitions. Except for court cases, or petition or election procedures and materials required by law, no public resources shall be spent to comment on pending petitions after ballot titles are set, and no district shall prepare or use another summary or otherwise comment on such petitions. No public resources shall be spent to defend accused violators or reimburse fines. Each district and each other violator shall separately pay the state general fund at once, without offset, the greater of $2,000 or three times all such illegally-spent public resources. Unless otherwise stated in their texts or unless their texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters. This section may be amended, superseded, or repealed by voter-approved petitions only. Except for state statutes subject to possible referendum petitions and enacted by March 1, 2005, all future state and local petition laws, rules, and regulations shall be Article X, section 20(8) ballot issues at any November election.

APPENDIX C

Be it Enacted by the People of the State of Colorado

Article VII, Section 2

Petitions.

2003-2004: #82

(1) General provisions. This section shall create fundamental rights to strengthen citizen control of government. It shall be self-executing and severable and supersede conflicting constitutional, charter, and other state and local laws. Time limits shall be delayed only to expire on district business days. The state shall enforce strictest compliance with this section by all districts. All individual and class action suits shall be filed within one year of violations. Plaintiffs may require jury trial verdicts on all matters of law, fact, and damages. District violations shall not void petitions, nor be balanced or harmonized, nor excused by substantial compliance, good faith, ignorance, or emergencies, but shall require strictest serutiny and full enforcement. Successful plaintiffs shall also recover from defendant districts and (3)(d) violators all costs and attorney fees, contingent or not, but defendants who are not petition agents may recover only if juries find suits frivolous.

(3) Definitions. Within this section: (a) "Ballot titles" means all language on ballots de-seribing specific petitions.

(b) "Districts" means the state and all local governments, including enterprises, authorities, and other governmental entities.

(c) "Petitions" means citizen-sponsored re-ferenda and initiatives on legislative policy, not on specific uses of administrative procedure.

(d) "Shall" means mandatory.

(3) Petition rights. (a) Petition rights shall exist in all districts. Required district registered elector petition entries shall not exceed 5% of all district votes for secretary of state candidates in the last full-term general election for that office. The general assembly may reduce that number for proposed statutes. Any review and comment hearing shall be held within 7 days of filing initiative drafts. Initiative ballot titles shall not exceed 75 words, shall be set within 7 days of requests made at any time, and may also be set by any state district court. Except on courts, lawyers other than the Colorado attorney general in person shall not be ballot title setters. Ballot title setters shall also be disqualified for bias or other good cause. Future local single-subject requirements shall exist by voter-approved petitions only. No summary or fiscal note shall be made at ballot title settings. Ballot title disputes and all single-subject challenges shall be filed with the supreme court within 5 days of such settings, finally decided within 7 days of filings, and very broadly construed to aid initiatives. Unless otherwise decided within 7 days of filings, initiatives shall conclusively be properly-titled single subjects. Decisions that initiatives contain multiple subjects shall list in writing all words not part of single subjects. Revisions that delete those words, and add no others, shall conclusively be single subjects. Decisions shall also provide ballot titles for initiatives and revisions. No other ballot title or single-subject rehearing, appeal, challenge, or decision shall be made. Within 7 days of requests for petition forms, districts shall print and deliver them and may charge actual costs up to one dollar per 100-entry form. All districts shall adapt the 1988 state petition forms without county entry spaces. Errors in petition forms or ballot titles shall not affect petitions. Peaceful petitioning at exits of buildings owned or leased by any district and then open to the public shall be protected. Except for petition form charges, no petition process fee, badge, bond, licensing, or training for petition agents or circulators shall be required. Any adult in Colorado may cireulate any petition. Using paid cireulators shall create no extra legal duty.

(b) In each district, no more than 10 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures, and detailed descriptions of emergencies justifying exceptions, shall each be passed by 3/4ths or more of all members of the elected local board or of each house of the general assembly. State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns, and such local measures 91 days or more after post-passage publication. Initial filing of referendum petitions with sufficient gross entries before that Olst day shall delay the effective date until the election or final petition invalidation. Measures rejected by voters shall then be void, and measure wholly or mostly similar shall then be passed again with voter approval only. Referendum petition ballot titles shall read, "SHALL (DISPUTED SECTIONS OF) (types of measures and numbers only) BE APPROVED?" Referendum petitions may begin at any time. They shall have no ballot title setting, appeal, or single-subject challenge, nor print texts of measures on petition forms. Only appropriations for district support are exempt from referendum petitions. This section shall not apply to referendum petitions reducing private property rights, such as zoning issues, which petitions may still lawfully exist.

(c) Within 12 months of petition form delivery, petitions shall be initially filed with sufficient gross entries. Petitions not initially filed 3 months or more before elections may be filed for the next election. Signers of petitions later notarized or verified shall be presumed district registered electors making valid entries until disproved in protests by clear and convincing evidence. Technical de-feets and minor variations and omissions shall be very broadly construed to aid petitions. Listing mailing addresses shown on registration records shall be valid. All protests shall be filed within 10 days of petition filings and not amended. Hearings shall be public, limited to reasons itemized in protests, and decided within 10 days of protest filings, using state judicial rules of evidence and procedure. Results of random sampling or machine reading of entries shall be excluded. Each protested entry shall be examined separately at the hearing. If districts do not review equally all petitions before elections, no district review results shall be used to invalidate any such petition. Petitioners shall have 10 days after all validation procedures and appeals to refile with corrections and added petition entries made at any time, to which all procedures and appeals shall also apply. Third filings are barred. When initially filed, petitions with sufficient gross entries shall receive ballot numbers and ballot placement, which remain through all procedures and appeals.

(d) All state and local petitions on any subject shall be Article X, section 20(8) ballot issues at any November election. Petition agents may file up to 1,000 words for ballot information booklets and election notices sent to all active registered elector addresses. The length of such filings shall be the maximum for summaries of comments filed by opponents. For petitions, those booklets and notices shall be limited to such written comments filed by 45 days before elections and other information required by Article X, seetion 20(8)(b). Article V, section 1(7.5)(a)(II) and the last sentence of Article X, section 20(8)(b)(v) shall not apply to petitions. Except for court cases, or petition or election procedures and materials required by law, no public resources shall be spent to comment on pending petitions after ballot titles are set, and no district shall prepare or use another summary or otherwise comment on such petitions. No public resources shall be spent to defend accused violators or reimburse fines. Each district and each other violator shall separately pay the state general fund at once, without offset, the greater of $2,000 or three times all such illegally-spent public resources. Unless otherwise stated in their texts or unless their texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters. This section may be amended, superseded, or repealed by voter-approved petitions only. Except for state statutes subject to possible referendum petitions and enacted by March 1, 2005, all future state and local petition laws, rules, and regulations shall be Article X, section 20(8) ballot issues at any November election.

APPENDIX D

Be it Enacted by the People of the State of Colorado

Article VII, Section 2

Petitions.

20083-2004: #83

(1) General provisions. This section shall create fundamental rights to strengthen citizen control of government. It shall be self-executing and severable and supersede conflicting constitutional, charter, and other state and local laws. Time limits shall be delayed only to expire on district business days. The state shall enforce strictest compliance with this section by all districts. All individual and class action suits shall be filed within one year of violations. Plaintiffs may require jury trial verdicts on all matters of law, fact, and damages. District violations shall not void petitions, nor be balanced or harmonized, nor exeused by substantial compliance, good faith, ignorance, or emergencies, but shall require strictest serutiny and full enforcement. Successful plaintiffs shall also recover from defendant districts and (3)(d) violators all costs and attorney fees, contingent or not, but defendants who are not petition agents may recover only if juries find suits frivolous.

(2) Definitions. Within this section: (a) "Ballot titles" means all language on ballots describing specific petitions.

(b) "Districts" means the state and all local governments, including enterprises, authorities, and other governmental entities.

(c) "Petitions" means citizen-sponsored re-ferenda and initiatives on legislative policy, not on specific uses of administrative procedure.

(d) "Shall" means mandatory.

(3) Petition rights. (a) Petition rights shall exist in all districts. Required district registered elector petition entries shall not exceed 5% of all district votes for secretary of state candidates in the last full-term general election for that office. The general assembly may reduce that number for proposed statutes. Any review and comment hearing shall be held within 7 days of filing initiative drafts. Initiative ballot titles shall not exceed 75 words, shall be set within 7 days of requests made at any time, and may also be set by any state district court. Except on courts, lawyers other than the Colorado attorney general in person shall not be ballot title setters. Ballot title setters shall also be disqualified for bias or other good cause. Future local single-subject requirements shall exist by voter-approved petitions only. No summary or fiscal note shall be made at ballot title settings. Ballot title disputes and all single-subject challenges shall be filed with the supreme court within 5 days of such settings, finally decided within 7 days of filings, and very broadly construed to aid initiatives. Unless otherwise decided within 7 days of filings, initiatives shall conclusively be properly-titled single subjects. Decisions that initiatives contain multiple subjects shall list in writing all words not part of single subjects. Revisions that delete those words, and add no others, shall conclusively be single subjects. Decisions shall also provide ballot titles for initiatives and revisions. No other ballot title or single-subject rehearing, appeal, challenge, or decision shall be made. Within 7 days of requests for petition forms, districts shall print and deliver them and may charge actual costs up to one dollar per 100-entry form. All districts shall adapt the 1988 state petition forms without county entry spaces. Errors in petition forms or ballot titles shall not affect petitions. Peaceful petitioning at exits of buildings owned or leased by any district and then open to the public shall be protected. Except for petition form charges, no petition process fee, badge, bond, licensing, or training for petition agents or cireulators shall be required. Any adult in Colorado may circulate any petition. Using paid circulators shall create no extra legal duty.

(b) In each district, no more than 10 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures, and detailed descriptions of emergencies justifying exceptions, shall each be passed by 3/4ths or more of all members of the elected local board or of each house of the general assembly. State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns, and such local measures 91 days or more after post-passage publication. Initial filing of referendum petitions with sufficient gross entries before that Qist day shall delay the effective date until the election or final petition invalidation. Measures rejected by voters shall then be void, and measure wholly or mostly similar shall then be passed again with voter approval only. Referendum petition ballot titles shall read, "SHALL (DISPUTED SECTIONS OF) (types of measures and numbers only) BE APPROVED?" Referendum petitions may begin at any time. They shall have no ballot title setting, appeal, or single-subject challenge, nor print texts of measures on petition forms. Only appropriations for district support are exempt from referendum petitions.

(c) Within 12 months of petition form delivery, petitions shall be initially filed with sufficient gross entries. Petitions not initially filed 3 months or more before elections may be filed for the next election. Signers of petitions later notarized or verified shall be presumed district registered electors making valid entries until disproved in protests by clear and convincing evidence. Technical de-feets and minor variations and omissions shall be very broadly construed to aid petitions. Listing mailing addresses shown on registration records shall be valid. All protests shall be filed within 10 days of petition filings and not amended. Hearings shall be public, limited to reasons itemized in protests, and decided within 10 days of protest filings, using state judicial rules of evidence and procedure. Results of random sampling or machine reading of entries shall be exelud-ed. Each protested entry shall be examined separately at the hearing. If districts do not review equally all petitions before elections, no district review results shall be used to invalidate any such petition. Petitioners shall have 10 days after all validation procedures and appeals to refile with corrections and added petition entries made at any time, to which all procedures and appeals shall also apply. Third filings are barred. When initially filed, petitions with sufficient gross entries shall receive ballot numbers and ballot placement, which remain through all procedures and appeals.

(d) All state and local petitions on any subject shall be Article X, section 20(8) ballot issues at any November election. Petition agents may file up to 1,000 words for ballot information booklets and election notices sent to all active registered elector addresses. The length of such filings shall be the maximum for summaries of comments filed by opponents. For petitions, those booklets and notices shall be limited to such written comments filed by 45 days before elections and other information required by Article X, seetion 20(8)(b). Article V, section 1(7.5)(a)(ID) and the last sentence of Article X, section 20(8)(b)(v) shall not apply to petitions. Except for court cases, or petition or election procedures and materials required by law, no public resources shall be spent to comment on pending petitions after ballot titles are set, and no district shall prepare or use another summary or otherwise comment on such petitions. No public resources shall be spent to defend accused violators or reimburse fines. Each district and each other violator shall separately pay the state general fund at onee, without offset, the greater of $2,000 or three times all such illegally-spent public resources. Unless otherwise stated in their texts or unless their texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters. This section may be amended, superseded, or repealed by voter-approved petitions only. Except for state statutes subject to possible referendum petitions and enacted by March 1, 2005, all future state and local petition laws, rules, and regulations shall be Article X, section 20(8) ballot issues at any November election.

1 . The proposed measures are attached as APPENDIX A, B, C, and D, respectively.

2 . The initiatives propose changes to the initiative process such as: setting a maximum number of votes required for petition entries; limiting the title length to seventy-five words; expediting the deadlines for title setting and appealing the title board's decisions; standardizing the petitioning forms; limiting the permissible fees for petitions; restricting the number of legislative measures that can be exempt from possible referendum petitions, etc.

3 . In Evans v. Romer, we upheld a preliminary injunction barring enforcement of a voter-initiated amendment to the Colorado Constitution, which prohibited the legislature from granting protected status to homosexuals, lesbians, or bisexuals. Evans v. Romer, 854 P.2d at 1272. The Romer plaintiffs were "fenced out" of all usual political routes for redressing their grievances other than successfully pursuing a constitutional amendment. Id. at 1282.