Summary
holding that the title permitting state and local entitles to "control the promotion of obscenity to the full extent permitted by the First Amendment to the U.S. Constitution" did not contain sufficient information to enable electorate to ascertain that the proposed initiative intended to foreclose Colorado courts from permitting any broader protection of obscenity under the Colorado Constitution
Summary of this case from In re Title, Ballot Title 1999-2000Opinion
No. 94SA168
Decided July 5, 1994
Review Pursuant to § 1-40-107(2) 1B C.R.S. (1993 Supp.)
ACTION REVERSED
Lino S. Lipinsky de Orlov, Pro Se, of Denver, Colorado
Edward T. Ramey, Pro Se, of Denver, Colorado
Thomas C. Bell, Timothy G. Ehresman, and Sara A. Moon (Davis, Graham Stubbs), of Denver, Colorado, Attorneys for Respondents Steve Mathers and Denise Mund
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, and Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Respondent Title Setting Board
John R. Mann (Cooper Kelley, P.C.), of Denver, Colorado, Attorney for Amicus Curiae American Civil Liberties Union Foundation of Colorado
Daniel N. Recht and Robert W. Pepin (Recht Pepin, P.C.), of Denver, Colorado, Attorneys for Amici Curiae Mountains and Plains Booksellers Association, Inc., Tattered Cover, Inc., and American Booksellers Foundation for Free Expression
Dirk T. Biermann and Joseph H. Fretz (Biermann Fretz, P.C.) of Denver, Colorado, Attorneys for Amici Curiae League of Women Voters, et al.
Petitioners, Lino S. Lipinsky de Orlov and Edward T. Ramey, bring this original proceeding challenging the action taken by the Initiative Title Setting Board (Board), in setting a title and submission clause for a proposed constitutional amendment (the Initiative). Designated "Obscenity," the Initiative would amend article II, section 10 of the Colorado Constitution by adding the following language (identified by capital letters) to that section as it now exists:
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. TO THE FULL EXTENT PERMITTED BY THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA, THE PROMOTION OF OBSCENITY MAY BE CONTROLLED BY THE STATE AND ANY CITY, TOWN, CITY AND COUNTY, OR COUNTY WITHIN THE UNINCORPORATED AREA OF THE COUNTY.
The actual text of the Initiative is identical to the proposed amended text of art. II, § 10 quoted herein, with the exception that the Initiative begins with the following two sentences: "Be it Enacted by the People of the State of Colorado," and "Article II, Section 10 of the Colorado Constitution is amended to read:".
Petitioners and their amici challenge the action of the Board arguing that the title and submission clause do not fairly and accurately express the true meaning and intent of the Initiative and are misleading. We agree.
I
The proponents of the Initiative submitted a draft of the Initiative to the legislative council and the office of legislative legal services for review and comment. The Board convened and set the title, submission clause, and summary for the Initiative. Petitioners requested a rehearing interposing objections to the title, submission clause, and summary fixed by the Board. The Board accepted some of those objections and rejected others. The title set by the Board reads as follows:
Title
AN AMENDMENT TO THE COLORADO CONSTITUTION STATING THAT THE STATE AND ANY CITY, TOWN, CITY AND COUNTY, OR COUNTY MAY CONTROL THE PROMOTION OF OBSCENITY TO THE FULL EXTENT PERMITTED BY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION.
The submission clause begins with the phrase, "SHALL THERE BE . . . .," but is otherwise identical to the title in all respects.
II
The duties imposed on the Board in designating a title and submission clause for a proposed initiative, as well as our review of that process, are well-settled and need not be repeated here. See, e.g., In the Matter of the Proposed Initiative on School Pilot Program, No. 94SA97, slip op. at 5-7 (Colo. May 23, 1994) (detailing the Board's duty and the standards this court applies in reviewing the Board's actions); In the Matter of the Proposed Initiative on "Limited Gaming IV", No. 94SA49, slip op. at 7-9 (Colo. May 2, 1994) (same); In the Matter of the Proposed Initiative on Tobacco Tax Amendment, No. 93SA345, slip op. at 6-10 (Colo. April 18, 1994) (same).
With these familiar principles in mind, we turn to the merit of petitioners' arguments.
III
Petitioners argue first that the title and submission clause do not fairly and accurately reflect the true intent and meaning of the Initiative. More specifically, they argue that the title and submission clause are defective in that they fail to inform voters that the Initiative would "restrict the right of free expression in this state, at least in the area of obscenity, by adopting a more expansive definition of `obscenity' than the one previously applied in the decisions of this Court."
At the hearing and rehearing before the Board, the petitioners requested that the Board include language in the title, submission clause, and summary to the effect that the Initiative, if adopted, "would prohibit the Colorado courts from interpreting the right of free expression more broadly under the Colorado Constitution than under the 1st Amendment [to] the United States Constitution, in the area of obscene speech." The Initiative's proponents did not contest this addition to the title and submission clause. To the contrary, the proponents' representative before the Board stated that the intent or purpose behind the Initiative was precisely what the petitioners suggested, i.e., to prevent the Colorado courts from construing the Colorado Constitution to be more protective of free expression than the First Amendment with respect to alleged obscenity. A divided Board concluded that although express reference to this intent must be included in the summary of the Initiative, such information was properly omitted from the title and submission clause.
Based on the testimony presented to the Board, the undisputed intent and purpose of the Initiative is to prevent the Colorado courts from construing the Colorado Constitution as more protective of free expression than the First Amendment in the area of obscenity. The proponents of the Initiative conceded before the Board that "everyone sitting here understands what we're trying to do here. Certainly the opponents of the amendment understand what we're trying to do here. No one disputes what the intended effect of the amendment is . . . ." The proponents also stated that because the sentence which the petitioners sought to include in the title and submission clause accurately portrayed the purpose and intent of the Initiative, they "would have no problem with putting that sentence in the title."
While the Board is not required in every case to follow the recommendations of the parties, it is certainly relevant to our review that the Board omitted language from the title and submission clause which all the parties agreed was an accurate statement of the intent and purpose of the Initiative.
The title and submission clause indicate only that the Initiative would permit state and local entities to "control the promotion of obscenity to the full extent permitted by the First Amendment to the U.S. Constitution." In our judgment, it is dubious whether a significant portion of the electorate, be they familiar or unfamiliar with the subject matter of the Initiative, would ascertain that in permitting the promotion of obscenity to the full extent allowed by the First Amendment, the Initiative is intended to foreclose the Colorado courts from permitting any broader protection of obscenity under the Colorado Constitution. In short, the title and submission clause do not contain sufficient information to enable the electorate to "determine intelligently whether to support or oppose such a proposal." In the Matter of the Proposed Initiative on Parental Notification, 794 P.2d 238, 242 (Colo. 1992). As such, the title and submission clause do not "fairly and accurately reflect" the intent and purpose of the Initiative. See § 1-40-102(10), 1B C.R.S. (1993 Supp.); § 1-40-106(3)(b), 1B C.R.S. (1993 Supp.) (the title "shall unambiguously state the principal of the provision sought to be added").
While it is true that the title and submission clause read, virtually word for word, the same as the Initiative, this fact does not establish that the title and submission clause fairly and accurately set forth the major tenets of the Initiative. The pertinent question is whether the "general understanding of the effect of a `yes' or `no' vote will be unclear" from reading the title. § 1-40-106(3)(b). There may be situations, therefore, where the title and submission clause likely would create public confusion or ambiguity about the effect of an Initiative even though they merely repeat the language contained in the Initiative itself. See In the Matter of the Proposed Initiative on "Governmental Business", No. 94SA94 (Colo. June 6, 1994) (disallowing the inclusion of a "catch phrase or slogan" in the title and submission clause in spite of the fact that those identical phrases were contained in the Initiative itself).
In this case, for example, the reference in the title and submission clause to the First Amendment obscenity standard likely would appear to most voters to represent an expansion of the right of free expression in Colorado. Without any additional language, it is unlikely that more than a very small percentage of the electorate would understand from the title set by the Board that a "yes" vote amounts to an attempt to foreclose the possibility that free expression could be granted greater protection under the Colorado Constitution than under federal standards. As such, a "yes" vote in reality would be a vote against the expansion of free expression principles in the area of obscenity, whereas a "no" vote would be a vote in support of the possibility of broader protections under the Colorado Constitution. See § 1-40-105(3), 1B C.R.S. (1993 Supp.) ("The draft shall not present the issue to be decided in such manner that a vote for the measure would be a vote against the proposition or viewpoint that the voter believes that he or she is casting a vote for or, conversely, that a vote against the measure would be a vote for a proposition or viewpoint that the voter is against."). In light of these facts, we conclude that the title and submission clause as set by the Board are misleading.
Accordingly, the ruling of the Board is reversed and the matter remanded with instructions to amend the title and submission clause to include the following underlined language:
Title
AN AMENDMENT TO THE COLORADO CONSTITUTION STATING THAT THE STATE AND ANY CITY, TOWN, CITY AND COUNTY, OR COUNTY MAY CONTROL THE PROMOTION OF OBSCENITY TO THE FULL EXTENT PERMITTED BY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION, AND THEREBY PREVENTING THE COLORADO COURTS FROM INTERPRETING THE RIGHT OF FREE EXPRESSION MORE BROADLY UNDER THE COLORADO CONSTITUTION THAN UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION IN THE AREA OF OBSCENITY.
Submission Clause
SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION STATING THAT THE STATE AND ANY CITY, TOWN, CITY AND COUNTY, OR COUNTY MAY CONTROL THE PROMOTION OF OBSCENITY TO THE FULL EXTENT PERMITTED BY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION, AND THEREBY PREVENTING THE COLORADO COURTS FROM INTERPRETING THE RIGHT OF FREE EXPRESSION MORE BROADLY UNDER THE COLORADO CONSTITUTION THAN UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION IN THE AREA OF OBSCENITY.