Opinion
No. 00SA6.
April 24, 2000.
Original Proceeding Pursuant to § 1-40-107(2), 1 C.R.S. (1999), Appeal from the Ballot Title Setting Board
ACTION AFFIRMED
Susan E. Burch, Denver, Colorado Attorney for Petitioner.
Douglas Campbell, Pro Se Arvada, Colorado Ken Salazar, Attorney General Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section Denver, Colorado, Attorneys for Title Board.
In this original proceeding brought pursuant to section 1-40-107(2), 1 C.R.S. (1999), Petitioner, Bennett S. Aisenberg, seeks review of the Initiative Title Setting Board's (Title Board or Board) action denying Petitioner's December 22, 1999 motion for rehearing on the ground that it lacked jurisdiction to hear the motion. We affirm the action of the Title Board denying Petitioner's motion for rehearing based on lack of jurisdiction.
Facts and Procedural History
On November 17, 1999, Douglas Campbell and Mark Dorn, Proponents of Initiative #219, (Proponents) submitted a proposed initiative to the Title Board for the purpose of setting a title, ballot title and submission clause, and summary (titles). On December 1, 1999, the Board fixed the titles. On December 8, 1999, Petitioner filed a motion for rehearing, alleging ten deficiencies that all related to the constitutional requirement that the titles set by the Board clearly and correctly express the subject of the Initiative. Stated broadly, Petitioner alleged that "the [titles] do not correctly and fairly express the true intent and meaning of the proposed constitutional amendment nor do they clearly express the subject of the proposal" and that "the [titles] as fixed and determined are likely to cause confusion and are misleading as to the content."
The title, ballot title and submission clause, and summary of Initiative #219 are attached hereto as an appendix.
On December 15, 1999, the Board granted Petitioner's motion for rehearing and reset the titles, addressing Petitioner's concerns.
At the December 15 meeting, one Board-member stated, "I would move that we grant the petition for rehearing and then address the issues of what matters should be reheard and amended." The Board voted unanimously to grant the motion for rehearing and heard motions for changes to the titles.
On December 22, 1999, Petitioner filed a second motion for rehearing, alleging that the titles contained more than one subject. Petitioner stated that the proposal repeals article VI, section 11 of the Colorado Constitution, which governs the qualifications for district court judges. Section 13 of article VI requires that district attorneys, who are members of the executive branch, possess the same qualifications as district judges. Thus, because the Initiative changes the qualifications for both district judges and district attorneys, Petitioner contends that the titles contain a second subject beyond the qualifications of judicial officers. Petitioner did not raise this complaint in his first motion for rehearing.
We note that the language in the titles creating this alleged second subject was present in the titles first set by the Board on December 1, 1999.
On January 5, 2000, the Board denied Petitioner's motion for rehearing, stating that it lacked jurisdiction to address the motion. On January 10, 2000, Petitioner filed a petition for review with the court, asking us to reverse the action of the Board in denying his motion for rehearing.
Jurisdiction of Title Board
Section 1-40-107(1), 1 C.R.S. (1999), which governs motions for rehearings, states:
Any person presenting an initiative petition or any registered elector who is not satisfied with the titles, submission clause, and summary provided by the title board and who claims that they are unfair or that they do not fairly express the true meaning and intent of the proposed . . . constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the titles and summary are set. The motion for rehearing shall be heard at the next regularly scheduled meeting.
A court's primary task in interpreting a statute is to give effect to the legislative purpose underlying its enactment. See Griffin v. S.W. Devanney Co., 775 P.2d 555, 559 (Colo. 1989). Where the statutory language is clear and unambiguous on its face, there is no need to apply rules of statutory construction because it may be presumed that the legislature meant what it clearly said. See id. at 559; Askew v. Industrial Claims Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996). However, where a statute is ambiguous or capable of more than one meaning, we construe the statute in light of the General Assembly's objective, employing the presumption that the legislature intended a consistent and sensible effect. See Matter of Title, Ballot Title and Submission Clause, and Summary for 1997-98 #62, 961 P.2d 1077, 1079 (Colo. 1998).
The statutory language at issue here is ambiguous regarding whether it permits a registered elector to file more than one motion for a rehearing in a circumstance where the Board has set titles at an initial hearing, granted a rehearing, and reset titles. The language "may file a motion for a rehearing" appears to indicate that only one motion may be filed. On the other hand, however, language that such motion must be filed "within seven days after the titles and summary are set" creates an ambiguity as to whether, in a situation where the titles are reset, a registered elector may file a second motion for rehearing within seven days of the date that the titles were reset. In other words, the statute is ambiguous whether a registered elector may file one motion for rehearing in total, or may file one motion for rehearing for each title-setting action by the Board. Accordingly, we turn to the legislative intent to determine the meaning of the statute.
The Colorado Constitution reserves to the people the power to propose and enact amendments to the constitution. See Colo. Const. art. V, §§ 1( 1) and ( 2). Article 40 of the Colorado Revised Statutes, spanning sections 1-40-101 to 134, 1 C.R.S. (1999), governs the initiative process in Colorado. The legislative intent of article 40 is "to properly safeguard, protect, and preserve inviolate . . . these modern instrumentalities of democratic government." § 1-40-101. In short, the initiative statutes strive "primarily to make the initiative process fair and impartial." Montero v. Meyer, 13 F.3d 1444, 1449 (10th Cir. 1994). To that end, the statute endeavors to balance the rights of citizens to present petitions to the voters of Colorado, see id. at 1448, with the rights of the voters to be presented with clear, single-subject initiatives that are not misleading. See In re Proposed Initiative on Fair Treatment of Injured Workers, 873 P.2d 718, 719 (Colo. 1994); see also In re Title, Ballot Title and Submission Clause, and Summary for 1999-2000 #25, 974 P.2d 458, 462-65 (Colo. 1999); In re #62, 961 P.2d at 1082.
Toward these competing goals, the initiative scheme provides a method by which registered electors may challenge within a limited timeframe the Title Board's setting of titles for a proposed initiative. In order to provide proponents of initiatives with sufficient time for the collection of signatures and for public debate, stringent time restraints are placed on the proponents and opponents of initiatives, as well as on the Title Board. For example, motions for rehearing must be filed within seven days after the titles and summary are set. See § 1-40-107(1). The Board must consider any motions for rehearing at its next scheduled meeting. See id. If a motion is filed to oppose titles set at the Board's last meeting in May, the motion must be heard within 48 hours of filing. See id. If a motion is overruled, an objector has five days in which to file for review with the supreme court. See § 1-30-107(2). The supreme court is directed to "dispose of [the matter] promptly." See id.
The above examples illustrate that the general assembly has placed great emphasis on expediting the review process governing initiatives. To permit an objector to file unlimited motions for rehearing regarding titles fixed by the Board would frustrate this purpose and permit objectors to indefinitely stall initiatives in the early stages of the process. This, in turn, would frustrate the general purpose of the initiative process to protect the "right in the people of Colorado to bring initiatives before the Colorado electorate." Montero, 13 F.3d at 1449.
Accordingly, we construe section 1-40-107 to permit an objector to bring only one motion for rehearing to challenge titles set by the Board. This construction strikes a balance between the competing rights of both the proponents and opponents of an initiative, and furthers the fundamental purpose of the initiative process to permit state citizens to present "fair and impartial" initiatives to the voters of Colorado.
We note that we do not address the situation in which an objector files a second motion for rehearing that raises objections relating to the reset titles. In this case, Petitioner's second motion did not raise any complaints relating to the changes made in the titles; rather, his objections related to issues that were present in the first titles set by the Board on December 1, 1999. Petitioner could have raised those objections in his first motion for rehearing. Under these facts, we find that the proper balance is met by prohibiting multiple motions that challenge issues which could have been raised in the first motion for rehearing.
Conclusion
Accordingly, we affirm the action by the Title Board denying Petitioner's second motion for rehearing based on a lack of jurisdiction.
APPENDIX
Proposed Initiative on "1999-2000 — #219"
State Judicial Personnel Selecting, Retention and Removal.
The title as designated and fixed by the Board is as follows:
AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING JUDICIAL PERSONNEL, AND, IN CONNECTION THEREWITH, DEFINING "JUDGES" TO INCLUDE JUSTICES AND MAGISTRATES AND TO EXCLUDE JUDGES AND MAGISTRATES OF THE COUNTY COURT OF THE CITY AND COUNTY OF DENVER; LIMITING FUTURE TERMS OF OFFICE FOR STATE COURT JUDGES; PROVIDING THAT THE GOVERNOR APPOINT SUCH STATE COURT JUDGES, SUBJECT TO SENATE AND VOTER APPROVAL; ELIMINATING THE PRESENT CONSTITUTIONAL REQUIREMENTS THAT SUPREME COURT JUSTICES AND DISTRICT COURT JUDGES BE LICENSED TO PRACTICE LAW IN COLORADO FOR AT LEAST FIVE YEARS; ESTABLISHING A PROCEDURE FOR REMOVAL ELECTIONS; REQUIRING ANY SUCH JUDGE WHO IS CONVICTED OF CERTAIN CRIMES OR IS THE SUBJECT OF A REMOVAL PETITION TO STAND FOR ELECTION; PROVIDING THAT ANY SUCH JUDGE RECEIVING A MAJORITY VOTE UNDER 60% IS RETAINED OR NOT REMOVED FOR ONE YEAR ONLY; REQUIRING RECORDS AND REPORTS ON EACH SUCH JUDGE TO BE PUBLIC AND COMPUTER ACCESSIBLE; REQUIRING THAT VOTERS RECEIVE SPECIFIED INFORMATION ON EACH SUCH JUDGE STANDING FOR ELECTION; PROHIBITING CERTAIN PERSONS FROM SERVING AS ACTIVE OR SENIOR JUDGES; PROVIDING ENFORCEMENT PROCEDURES; AND REPEALING CERTAIN CONSITUTIONAL PROVISIONS TO CONFORM WITH THIS AMENDMENT.
The ballot title and submission clause as designated and fixed by the Board is as follows:
SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING JUDICIAL PERSONNEL, AND, IN CONNECTION THEREWITH, DEFINING "JUDGES" TO INCLUDE JUSTICES AND MAGISTRATES AND TO EXCLUDE JUDGES AND MAGISTRATES OF THE COUNTY COURT OF THE CITY AND COUNTY OF DENVER; LIMITING FUTURE TERMS OF OFFICE FOR STATE COURT JUDGES; PROVIDING THAT THE GOVERNOR APPOINT SUCH STATE COURT JUDGES, SUBJECT TO SENATE AND VOTER APPROVAL; ELIMINATING THE PRESENT CONSTITUTIONAL REQUIREMENTS THAT SUPREME COURT JUSTICES AND DISTRICT COURT JUDGES BE LICENSED TO PRACTICE LAW IN COLORADO FOR AT LEAST FIVE YEARS; ESTABLISHING A PROCEDURE FOR REMOVAL ELECTIONS; REQUIRING ANY SUCH JUDGE WHO IS CONVICTED OF CERTAIN CRIMES OR IS THE SUBJECT OF A REMOVAL PETITION TO STAND FOR ELECTION; PROVIDING THAT ANY SUCH JUDGE RECEIVING A MAJORITY VOTE UNDER 60% IS RETAINED OR NOT REMOVED FOR ONE YEAR ONLY; REQUIRING RECORDS AND REPORTS ON EACH SUCH JUDGE TO BE PUBLIC AND COMPUTER ACCESSIBLE; REQUIRING THAT VOTERS RECEIVE SPECIFIED INFORMATION ON EACH SUCH JUDGE STANDING FOR ELECTION; PROHIBITING CERTAIN PERSONS FROM SERVING AS ACTIVE OR SENIOR JUDGES; PROVIDING ENFORCEMENT PROCEDURES; AND REPEALING CERTAIN CONSTITUTIONAL PROVISIONS TO CONFORM WITH THIS AMENDMENT?
The summary prepared by the Board is as follows:
This measure amends the Colorado constitution and would affect all justices of the supreme court, judges of the court of appeals, county and district court judges and magistrates, including juvenile, probate, and water court judges and magistrates, but excluding judges and magistrates of the county court for the city and county of Denver. It would limit future terms of such justices, judges, and magistrates to four years and prohibit such justices, judges, and magistrates from serving more than three future terms at each court level. The measure provides that any future partial term constitutes a full term. It also provides that any such justice, judge, or magistrate who has served eight years or more at a judicial level is only eligible to serve one additional term at that level. It establishes that juvenile, probate, water, and district courts are deemed to be all one level. The measure provides that no one shall ever serve as an active or senior judge after mandatory retirement age, removal by discipline or election, resignation with a retention or removal election pending, or defeat for retention and that no one shall ever serve as a senior judge without the written consent of all parties to a case or after being term-limited.
The measure changes the manner in which all state court justices, judges, and magistrates, except for judges and magistrates of the county court for the city and county of Denver, are selected by allowing the governor to appoint any qualified elector who resides in the court district even if the person was not recommended by a judicial nominating commission. The measure would prohibit any such state court justice, judge, or magistrate from taking office until approved by the senate following a public hearing held after at least ten days' notice. It requires all such state court justices, judges, and magistrates to face a retention election in the first annual state election at least ninety days following approval by the senate. The measure would suspend without pay any such justice, judge, or magistrate convicted of a felony or misdemeanor and require the justice, judge, or magistrate to face a retention election in the next November election more than ninety days following the conviction or finding.
The measure would require a removal election if signatures equal to five percent of the total votes cast in the court district for the office of secretary of state, are collected within twelve months on petitions requesting the removal of any such active or senior justice, judge, or magistrate. The measure provides procedures for the approval of petition entries including a presumption of validity of the entries prohibiting the use of random sampling, and allowing only petitioners to appeal. It also provides that more than one member of the same court may be listed on a single petition and prohibits the listing of reasons for or against retention or removal on the petition or the ballot.
If such a justice, judge, or magistrate is retained or not removed by a majority vote of fewer than sixty percent, the measure provides that the justice, judge, or magistrate is only retained or not removed until the next annual election.
The measure would require that future appellate court opinions be public and computer accessible within five days. It would require that calendar year information concerning the caseload, case resolution time, continuances, hours of attendance, and criminal sentencing information for each such justice, judge, and magistrate be made public and computer accessible by the following March 1.
For each such justice, judge, and magistrate facing a retention or removal election, the measure would require that ballot information booklets and mailed election notices contain only a true summary of the prior year's record, a statement in favor of the incumbent, and a summary of comments mailed or filed by any person or group against retention or for removal. It would prohibit the mentioning or publication of any judicial performance commission review.
The measure states that it shall be strictly construed and shall supersede conflicting laws. It provides that any Colorado resident or group has standing to enforce its provisions, that the Colorado supreme court shall hear and decide any case concerning its enforcement, and that legal fees and costs shall be paid only to successful plaintiffs who seek to enforce the measure.
The measure would repeal certain provisions of the Colorado constitution including:
The terms of office and qualifications for judges and justices;
The appointments of judges and justices from a list of nominees submitted by a judicial nominating commission;
The requirement that judges and justices above the county court level be licensed to practice law for at least five years.
The Department of Local Affairs believes that the provisions of the measure dealing with removal and additional retention elections, requiring certain information to be mailed to voters, making judges' records computer accessible, and requiring the award of attorney fees to successful plaintiffs would result in some indeterminate negative fiscal impact on counties.
The Office of State Planning and Budgeting believes that the provisions of this measure would drive significant additional costs for making records computer accessible, recall petitions and removal elections, and distribution of ballot information booklets. The amount of additional costs would vary in any given year and cannot be accurately measured.
Hearing December 1, 1999:
Single subject approved; staff draft amended; titles and summary set.
Hearing adjourned 4:54 p.m.
Rehearing December 15, 1999:
Bennett S. Aisenberg Motion for Rehearing Granted; titles and summary amended.
Hearing adjourned 3:23 p.m.
Rehearing January 5, 2000:
Bennett S. Aisenberg Motion for Rehearing Denied (lack of jurisdiction).
Hearing adjourned 2:51 p.m.
The text of Initiative #219 is as follows:
Be it Enacted by the People of the State of Colorado:
Section 1. Article VI of the state constitution is amended to add:
Section 6. State judicial personnel selection, retention, and removal. After November 6, 2000:
(1) Term limits. Future terms of office for all active county, district, probate, juvenile, water, court of appeals, and supreme court judges shall be four years, except for a shorter first term for each office, and shall end on November 15 of an even-numbered year. At each level, no one shall serve more than three future terms of office. All district, probate, juvenile, and water courts combined shall be deemed one level. Any future partial term, including completing a term of another judge, shall also be a term of office. Anyone who has served eight years or more at one level shall be eligible for only one future term at that level.
(2) Selection. The governor shall appoint all future active county, district, probate, juvenile, water, court of appeals, and supreme court judges; and all senior judges for service up to 90 court days in any 12 months. No one shall take office without senate approval following a hearing with public testimony, held ten days or more after public notice. Active and senior judges need not be chosen from a nominating commission list, but shall be qualified electors residing in the court district they are serving. If senate-approved, active judges shall face an election on the next yearly state election date at least 90 days later.
(3) Retention and removal. (a) Despite any appeal, sentence delay, or other excuse, any misdemeanor or felony conviction shall suspend active and senior judges without pay, and compel a retention vote on the next yearly state election date at least 90 days later. Active and senior judges shall also be subject to removal on the next yearly state election date at least 90 days after petition forms circulated by any adult state residents are filed with entries collected within 12 months, of registered electors in that court district equal in number to 5% of the general election votes last cast in that district for all secretary of state candidates. Completed entries with an attached circulator oath are deemed valid unless incumbents, within 14 days after entry filing, prove enough entries invalid. Random sampling is prohibited. Absent systematic fraud, if a petition with sufficient entries be invalidated, petitioners shall then have 14 days to file more entries made at any time. Third filings are barred. Only petitioners may appeal, and shall prevail unless the supreme court rules otherwise on the merits, giving no weight to appealed findings, within 14 days of the appeal filing. One or more members of the same court may be named in the same petition without increasing required entries, but ballot questions and other procedures shall be separate. Delivery of a master petition form, conclusively valid, shall begin the collection period. No petition or ballot shall list reasons for or against retention or removal.
(b) To inform potential voters at any retention or removal election: all future appellate opinions shall be public and computer accessible within five days; complete calendar year records on caseload, case resolution time, continuances, hours of courthouse attendance daily, and criminal sentencing by each judge shall be public and computer accessible by the next March 1; and, in 12-point or larger type, ballot information booklets and mailed election notices shall include all convictions defined in (a), a true summary of the latest yearly record, and up to 500 words each for the incumbent and for a true summary by the election official of all comments against retention or for removal, which may be filed or mailed by any person or group at least six weeks before the election. No judicial performance commission review shall be mentioned or published. A majority under 60% shall retain that incumbent, or delay removal, only until the next November 15 after the next yearly state election date.
(4) Enforcement. "Judge" also includes a justice or magistrate, but excludes section 26 judges. "Senior judge" also includes a temporary or retired judge. Section 6 shall be strictly construed; good faith and substantial compliance are insufficient. Its provisions are severable and self-executing, and shall not be balanced or harmonized with, but shall supersede, conflicting laws. Any person or group shall have standing to enforce section 6. Suits shall be filed in and orally argued in the supreme court and, except (3)(a) appeals, decided within 60 days of filing. Attorney fees and costs shall always be paid only to successful plaintiffs seeking to enforce section 6. No one shall ever serve as an active or senior judge after mandatory retirement age, removal by discipline or election, resignation with a retention or removal election pending, or defeat for retention. No one shall ever serve as a senior judge without the written consent of all parties to a case or after being term-limited.
Section 2. Article VI, Sections 7, 8, 11, 14, 15, 20(1), 20(3), and the second sentence of 10(2) of the state constitution are repealed November 7, 2000.