CO Code § 1-40-106.5 (2021)
2021 Colorado Code|Title 1 - Elections|Article 40 - Initiative and Referendum|§ 1-40-106.5. Single-Subject Requirements for Initiated Measures and Referred Constitutional Amendments - Legislative Declaration

  The general assembly hereby finds, determines, and declares that:   Section 1 (5.5) of article V and section 2 (3) of article XIX of the state constitution require that every constitutional amendment or law proposed by initiative and every constitutional amendment proposed by the general assembly be limited to a single subject, which shall be clearly expressed in its title;    Such provisions were referred by the general assembly to the people for their approval at the 1994 general election pursuant to Senate Concurrent Resolution 93-4;    The language of such provisions was drawn from section 21 of article V of the state constitution, which requires that every bill, except general appropriation bills, shall be limited to a single subject, which shall be clearly expressed in its title;    The Colorado supreme court has held that the constitutional single-subject requirement for bills was designed to prevent or inhibit various inappropriate or misleading practices that might otherwise occur, and the intent of the general assembly in referring to the people section 1 (5.5) of article V and section 2 (3) of article XIX was to protect initiated measures and referred constitutional amendments from similar practices;    The practices intended by the general assembly to be inhibited by section 1 (5.5) of article V and section 2 (3) of article XIX are as follows:   To forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits;    To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.          It is the intent of the general assembly that section 1 (5.5) of article V and section 2 (3) of article XIX be liberally construed, so as to avert the practices against which they are aimed and, at the same time, to preserve and protect the right of initiative and referendum.    It is further the intent of the general assembly that, in setting titles pursuant to section 1 (5.5) of article V, the initiative title setting review board created in section 1-40-106 should apply judicial decisions construing the constitutional single-subject requirement for bills and should follow the same rules employed by the general assembly in considering titles for bills.     History. Source: L. 94: Entire section added, p. 73, § 1, effective January 19, 1995.    Editor's note:   Section 2 of chapter 22, Session Laws of Colorado 1994, provided that the act enacting this section was effective on the date of the proclamation of the Governor announcing the approval, by the registered electors of the state, of SCR 93-004, enacted at the First Regular Session of the Fifty-ninth General Assembly. The date of the proclamation of the Governor announcing the approval of SCR 93-004 was January 19, 1995. (See L. 95, p. 1427 .)   ANNOTATION   Law reviews. For article, “The Single-Subject Requirement For Initiatives”, see 29 Colo. Law. 65 (May 2000).   The supreme court employs all legitimate presumptions in favor of the propriety of the title board's actions and will overturn the title board's finding that a proposed initiative contains a single subject only in a clear case. Title, Ballot Title & Sub. Clause for 2015-2016 No. 132, 2016 CO 55, 374 P.3d 460.   In determining whether a proposed measure contains more than one subject, the court may not interpret the language of the measure or predict its application if it is adopted. In re Ballot Title 1999-2000 No. 255, 4 P.3d 485 (Colo. 2000).   In order to violate the single-subject requirement, the text of the measure must relate to more than one subject and have at least two distinct and separate purposes which are not dependent upon or connected with each other. The single-subject requirement is not violated if the matters included are necessarily or properly connected to each other. In re Proposed Ballot Initiative on Parental Rights, 913 P.2d 1127 (Colo. 1996).   In order to pass constitutional muster, a proposed initiative must concern only one subject. In other words, it must effectuate or carry out only one general object or purpose. In re Ballot Title 2005-2006 No. 73, 135 P.3d 736 (Colo. 2006); In re Ballot Title 2005-2006 No. 74, 136 P.3d 237 (Colo. 2006).   The single-subject requirement serves two functions: It ensures that each proposed measure depends upon its own merits for passage by preventing inclusion in one measure subjects having no necessary or proper connection for the purpose of enlisting support for the measure from separate advocates for each of the subjects, and it prevents fraud and surprise from being practiced upon voters through the inadvertent passage of a surreptitious provision coiled up in the folds of a complex measure. Title, Ballot Title & Sub. Clause for 2015-2016 No. 132, 2016 CO 55, 374 P.3d 460.   First, it is intended to forbid the treatment of incongruous subjects in the same measure, especially the practice of putting in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits. Second, the single-subject requirement seeks to prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters. In re Ballot Title 2019-2020 No. 3, 2019 CO 57, 442 P.3d 867.   The intent of the requirement that an initiative be limited to a single subject is to ensure that each proposal depends on its own merits for passage. Matter of Proposed Initiative 1996-17, 920 P.2d 798 (Colo. 1996); Matter of Title, Ballot Title for 1997-98 No. 105, 961 P.2d 1092 (Colo. 1998).   Subsection (1)(a)(I) prohibits the joinder of incongruous subjects in the same petition. Matter of Title, Ballot Title for 1997-98 No. 105, 961 P.2d 1092 (Colo. 1998).   The intent of the single-subject requirement is to prevent voters from being confused or misled and to ensure that each proposal is considered on its own merits. Matter of Ballot Title 1997-98 No. 74, 962 P.2d 927 (Colo. 1998).   The single-subject requirement must be liberally construed so as not to impose undue restrictions on the initiative process. Matter of Ballot Title 1997-98 No. 74, 962 P.2d 927 (Colo. 1998).   The single-subject requirement is not violated simply because an initiative with a single, distinct purpose spells out details relating to its implementation. As long as the procedures specified have a necessary and proper relationship to the substance of the initiative, they are not a separate subject. Matter of Ballot Title 1997-98 No. 74, 962 P.2d 927 (Colo. 1998); In re Ballot Title 1999-2000 No. 255, 4 P.3d 485 (Colo. 2000).   A proposed measure that tends to effect or to carry out one general purpose presents only one subject. Consequently, minor provisions necessary to effectuate the purpose of the measure are properly included within its text. In re Ballot Title 1999-2000 No. 256, 12 P.3d 246 (Colo. 2000); Title, Ballot Title & Sub. Clause for 2015-2016 No. 132, 2016 CO 55, 374 P.3d 460.   Just because a proposal may have different effects or that it makes policy choices that are not invariably interconnected does not mean that it necessarily violates the single-subject requirement. It is enough that the provisions of a proposal are connected. Here, the initiative addresses numerous issues in a detailed manner. However, all of these issues relate to the management of development. In re Ballot Title 1999-2000 No. 256, 12 P.3d 246 (Colo. 2000).   To evaluate whether or not an initiative effectuates or carries out only one general object or purpose, supreme court looks to the text of the proposed initiative. The single-subject requirement is not violated if the “matters encompassed are necessarily or properly connected to each other rather than disconnected or incongruous”. Stated another way, the single-subject requirement is not violated unless the text of the measure “relates to more than one subject and has at least two distinct and separate purposes that are not dependent upon or connected with each other”. Mere implementation or enforcement details directly tied to the initiative's single subject will not, in and of themselves, constitute a separate subject. Finally, in order to pass the single-subject test, subject of the initiative should also be capable of being expressed in the initiative's title. In re Ballot Title 2005-2006 No. 73, 135 P.3d 736 (Colo. 2006); In re Ballot Title 2005-2006 No. 74, 136 P.3d 237 (Colo. 2006).   Subjecting proposed initiative to a limitation imposed by the U.S. constitution, as interpreted by the U.S. supreme court, does not violate single-subject requirement. All state statutory and constitutional measures are subject to implicit limitation that the U.S. constitution, as interpreted by the U.S. supreme court, may require otherwise; a finding that such limitation violates the single-subject requirement would result in no measure satisfying the single-subject requirement. In re Ballot Title 2007-2008 No. 61, 184 P.3d 747 (Colo. 2008).   Likewise, provision allowing state to act in accordance with the U.S. constitution, as interpreted by U.S. supreme court, does not violate single-subject requirement. In re Ballot Title 2007-2008 No. 61, 184 P.3d 747 (Colo. 2008).   Measure is not deceptive or surreptitious merely because its content depends on the U.S. constitution, as interpreted by the U.S. supreme court. In re Ballot Title 2007-2008 No. 61, 184 P.3d 747 (Colo. 2008).   The fact that provisions of measure may affect more than one statutory provision does not itself mean that measure contains multiple subjects. Where initiative requiring background checks at gun shows also authorizes licensed gun dealers who conduct such background checks to charge a fee, the initiative contains a single subject. In re Ballot Title 1999-2000 No. 255, 4 P.3d 485 (Colo. 2000).   Single-subject requirement eliminates the practice of combining several unrelated subjects in a single measure for the purpose of enlisting support from advocates of each subject and thus securing the enactment of measures that might not otherwise be approved by voters on the basis of the merits of those discrete measures. In re Petitions, 907 P.2d 586 (Colo. 1995); In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996).   A proposed measure impermissibly includes more than one subject if its text relates to more than one subject and if the measure has at least two distinct and separate purposes that are not dependent upon or connected with each other. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996); In re Ballot Title 1999-2000 No. 235(a), 3 P.3d 1219 (Colo. 2000).   Grouping the provisions of a proposed initiative under a broad concept that potentially misleads voters will not satisfy the single-subject requirement. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996); In re Ballot Title 1999-2000 Nos. 245(b), 245(c), 245(d), and 245(e), 1 P.3d 720 (Colo. 2000); In re Ballot Title 1999-2000 Nos. 245(f) and 245(g), 1 P.3d 739 (Colo. 2000).   Neither this section nor § 1(5.5) of article V of the state constitution creates any exemptions for initiatives that attempt to repeal constitutional provisions. Also, no special permission exists for initiatives that seek to address constitutional provisions adopted prior to the enactment of the single-subject requirement. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996).   The term “measure” includes initiatives that either enact or repeal. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996).   No exception to single-subject requirement for repeal measures. In ruling that an initiative to repeal the Taxpayer's Bill of Rights (TABOR) in full satisfies the single-subject requirement, the supreme court is not adopting an exception to the single-subject rule for repeal measures. In re Ballot Title 2019-2020 No. 3, 2019 CO 57, 442 P.3d 867.   In cases of repeal, the underlying constitutional provision to be repealed must be examined in order to determine whether the repealing and reenacting initiative contains a single subject. If a provision contains multiple subjects and an initiative proposes to repeal the entire underlying provision, then the initiative contains multiple subjects. On the other hand, if an initiative proposes anything less than a total repeal, it may satisfy the single-subject requirement. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996); disapproved in In re Ballot Title 2019-2020 No. 3, 2019 CO 57, 442 P.3d 867.   The single-subject requirement does not apply to municipal initiatives. Bruce v. City of Colo. Springs, 200 P.3d 1140 (Colo. App. 2008).   Title-setting board has no duty to advise proponents concerning possible solutions to a single-subject violation. Comment by the board is within its sound discretion; requiring comment would unconstitutionally expand the board's authority and shift initiative-drafting responsibility from proponents to the board. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996).   If the title-setting board rejects an initiative for violating the single-subject requirement, then proponents may pursue one of two courses of action. They may either (1) commence a new review and comment process, or (2) present a revised title to the board. In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996).   Single-subject requirement for ballot initiatives met where provisions in initiative make reference to the initiative's subject and the provisions are sufficiently connected to the subject. Matter of Title, Ballot Title, 917 P.2d 292 (Colo. 1996).   An election provision in a measure does not constitute a separate subject if there is a sufficient connection between the provision and the subject of the initiative. In re Ballot Title 1999-2000 No. 235(a), 3 P.3d 1219 (Colo. 2000).   Title board is vested with considerable discretion in setting the title, ballot title and submission clause, and summary. In reviewing actions of the title board, court must liberally construe the single-subject and title requirements for initiatives. Matter of Title, Ballot Title, 917 P.2d 292 (Colo. 1996); Matter of Title, Ballot Title, Sub. Clause, 917 P.2d 1277 (Colo. 1996).   Proposed initiative contains only one subject. Although initiative is comprehensive, all of its numerous provisions relate to the single subject of reforming petition rights and procedures. Matter of Petition for Amend. to Const., 907 P.2d 586 (Colo. 1995).   Proposed initiative that applies a $60 tax credit contains only one subject, even though it applies the credit to more than one tax and requires the state to replace monthly local government revenues lost because of the tax credit. Matter of Proposed Petition for an Amendment to the Constitution Adding Paragraph (d) Section (8) of Section 20 of Article X (Amend TABOR No. 32), 908 P.2d 125 (Colo. 1995).   The texts of the initiatives encompass the single subject of gaming activities conducted by nonprofit organizations. The initiatives detail what games of chance may be conducted, who may conduct such games, and how such games may be conducted. In re Proposed Init. Bingo-Raffle Lic. (I), 915 P.2d 1320 (Colo. 1996).   Proposed initiative did not violate the single-subject requirement where “the public's interest in state waters” was sufficiently narrow and connected with both a “public trust doctrine” and the assignment of water use rights to the public or a watercourse. Matter of Title, Ballot Title, Sub. Clause, 917 P.2d 1277 (Colo. 1996).   Proposed initiative did not contain more than one subject merely because it provided for alternative ways to accomplish the same result. The alternate ways were related to and connected with each other and plainly did not violate the single-subject requirement. Matter of Proposed Initiative 1996-17, 920 P.2d 798 (Colo. 1996).   Initiative that assessed fees for water pumped from beneath trust lands and then allocated the pumping fees for school finance was not considered two subjects by the court because the theme of the purpose of state trust lands and the educational recipient provide a unifying thread. Matter of Title, Ballot Title for 1997-98 No. 105, 961 P.2d 1092 (Colo. 1998).   Proposed initiative concerning uniform application of laws to livestock operations was upheld without opinion against challenges on basis of single-subject requirement and on other grounds. Matter of Proposed Initiative 1997-98 No. 112, 962 P.2d 255 (Colo. 1998).   Measure to recognize marriage between a man and a woman as valid does not contravene the single subject requirement of this section. In re Ballot Title 1999-2000 Nos. 227 and 228, 3 P.3d 1 (Colo. 2000).   Proposed initiative that employs a growth formula limiting the rate of future development, delineates a system of measurement to determine the “base developed” area of each jurisdiction, allows for alternative treatment of commenced but not completed projects, excludes low-income housing, public parks and open space, and historic landmarks, and establishes a procedure for exemptions does not violate the constitutional prohibition against single subjects. In re Ballot Title 1999-2000 No. 235(a), 3 P.3d 1219 (Colo. 2000).   Proposed initiative to amend the state constitution to give every county or municipality the right to limit housing growth by initiative and referendum subject to specified petition signature requirements, cap annual housing growth in ten specified counties at one percent per year for two years, and temporarily prohibit the issuance of building permits for new privately owned residential housing units in the same ten counties has a single subject of limiting housing growth in the state. In the Matter of the Title, Ballot Title & Sub. Clause for 2017-2018 No. 4, 2017 CO 57, 395 P.3d 318.   Proposed initiative that prohibits school districts from requiring schools to provide bilingual education programs while allowing parents to transfer children from an English immersion program to a bilingual program does not contain more than one subject. In re Ballot Title 1999-2000 No. 258(A), 4 P.3d 1094 (Colo. 2000).   Enforcement provision under which election will be declared void and revenues collected pursuant to election will be refunded is directly tied to initiative's purpose of eliminating pay-to-play contributions and, therefore, is not a separate subject. Clause in question should be interpreted as nothing more than an enforcement or implementation clause that does nothing more than incorporate inherent right of taxpayers to challenge tax, spending, or bond measures when they have standing to do so. Thus, enforcement provision is not a separate subject but rather is tied directly to initiative's single subject. In re Ballot Title 2005-2006 No. 73, 135 P.3d 736 (Colo. 2006).   Proposed initiative that creates a new legal regime, the Colorado public trust doctrine, to govern the public's rights in waters of natural streams contains a single subject. The proposed initiative does not contain an array of disconnected subjects joined together to garner support from various factions and does not contain surreptitious provisions that will surprise voters. In re Ballot Title 2011-2012 No. 3, 2012 CO 25, 274 P.3d 562 .   Proposed initiative that modifies only the existing rights and interests in water between private individuals and the public is a cohesive proposal to create a new water regime and contains a single subject of public control of waters. Its provisions are necessarily and properly connected to each other because they define the purpose of the initiative, describe the broadened scope of the public's control over the state's water resources, and outline how to implement and enforce a new dominant public water estate. In re Ballot Title 2011-2012 No. 45, 2012 CO 26, 274 P.3d 576.   Proposed initiative that requires a statewide setback for new oil and gas development in this state and establishes that the statewide setback requirement is not a taking of private property under the state constitution contains a single subject. The “not a taking” provision applies only to the statewide setback requirement that would be established and is, therefore, properly connected to the requirement. In re Ballot Title 2013-2014 Nos. 85, 86, 87, 2014 CO 62, 328 P.3d 136.   Proposed initiative that defines “fee” for purposes of all Colorado constitutional provisions, laws, administrative rules, directives, and public legal documents as “a voluntarily incurred government charge in exchange for a specific benefit conferred on the taxpayer, which fee should reasonably approximate the payer's fair share of the costs incurred by the government in providing said specific benefit”, contains a single subject. In re Ballot Title 2013-2014 No. 129, 2014 CO 53, 333 P.3d 101 .   Proposed initiative that establishes a fundamental right to a healthy environment contains a single subject. Provisions that broadly define the term “local government” require the state and local governments to assign protection of a healthy environment the highest priority, provide that when a state law and a local law address the same topic the law that is more protective of a healthy environment governs, and create a cause of action for enforcement are directly tied to and implement the central focus of the initiative. In the Matter of the Title, Ballot Title & Sub. Clause for 2015-2016 No. 63, 2016 CO 34, 370 P.3d 628.   One-sentence initiative to repeal in full the Taxpayer's Bill of Rights (TABOR) meets all of the requirements of a single subject and, on its face, reflects a single subject. While TABOR itself is arguably a multi-subject provision, statements in prior state supreme court cases that an initiative that repeals a multi-subject constitutional provision includes multiple subjects were dicta and are not binding precedent. In re Ballot Title 2019-2020 No. 3, 2019 CO 57, 442 P.3d 867 (disapproving In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996); Matter of Title, Ballot Title, & Sub. Cl., and Summary for 1999-2000 No. 104, 987 P.2d 249 (Colo. 1999); & In re Ballot Title 2013-14 No. 76, 2014 CO 52, 333 P.3d 76).   Proposed initiative that creates a new preschool program and funds the program by establishing a new sales tax on tobacco-derived nicotine vapor products and reallocating to the program a portion of existing state cigarette and tobacco product tax revenue, including cigarette tax revenue made newly available by withholding distributions of such revenue that would otherwise be made from any municipality that bans tobacco and nicotine products in any form, has a single subject of creating and administering a Colorado preschool program funded by state taxes on nicotine and tobacco products. In re Title, Ballot Title & Submission Clause for 2019-2020 #315, 2020 CO 61, __ P.3d __.   Proposed initiative contains more than one subject. Citizen initiative that retroactively creates substantive fundamental rights in charter and constitutional amendments approved after 1990, requires the word “shall” in such amendments be mandatory regardless of the context, establishes standards for judicial review of filed petitions, provides that challenges to petitions can be upheld only if beyond a reasonable doubt by a unanimous supreme court, and contains other substantive and procedural provisions relating to recall, referendum, and initiative petitions contains more than one subject. Amendment to Const. Section 2 to Art. VII, 900 P.2d 104 (Colo. 1995).   Proposed initiative that establishes a tax credit and sets forth procedural requirements for future ballot titles contains more than one subject. Matter of Title, Ballot Title & Sub. Cl., 900 P.2d 121 (Colo. 1995).   Initiative that contains both tax cuts and mandatory reductions in state spending on state programs violates the single subject requirement. Matter of Title, Ballot Title for 1997-98 No. 88, 961 P.2d 1106 (Colo. 1998).   Proposed initiative that repealed the constitutional requirement that each judicial district have a minimum of one district court judge; deprived the city and county of Denver of control over Denver county court judgeships; immunized from liability persons who criticize a judicial officer regarding his or her qualifications; and altered the composition and powers of the commission on judicial discipline contains more than one subject. Matter of Title, Ballot Title for 1997-98 No. 64, 960 P.2d 1192 (Colo. 1998); Matter of Title, Ballot Title for 1997-98 No. 95, 960 P.2d 1204 (Colo. 1998).   Proposed initiative that also proposed to make all municipal court judges subject to its term of office and retention provisions and expanded the jurisdiction of the commission on judicial discipline to include municipal court judges contains more than one subject. Matter of Title, Ballot Title for 1997-98 No. 95, 960 P.2d 1204 (Colo. 1998).   Proposed initiative that creates a tax cut, imposes new criteria for voter approval of tax, spending, and debt increases, and imposes likely reductions in state spending on state programs contains at least three subjects. Matter of Title, Ballot Title & Sub. Cl., & Summary for 1999-2000 No. 37, 977 P.2d 845 (Colo. 1999).   Proposed initiative that creates a tax cut and imposes new criteria for voter approval of tax, spending, and debt increases contains multiple subjects. Matter of Title, Ballot Title & Sub. Cl., & Summary for 1999-2000 No. 38, 977 P.2d 849 (Colo. 1999).   Proposed initiative has more than single subject and, therefore, is unconstitutional. Initiative presents multiple subjects: (1) Time limits for tax measures; (2) time limits for public debt authorizations; and (3) time limits for voter-authorized relief from spending limits. While voters may well be receptive to a broadly applicable 10-year limitation upon the duration of any tax increases, they may not realize that they will be simultaneously limiting their ability to incur multiple-fiscal year district debt obligation to fund public projects. Voters would also be limiting prospectively the duration of all future ballot issues designed to provide relief from TABOR's wholly independent spending caps. Voters are entitled to have each of these separate subjects considered upon its own merits. In re Ballot Title 2005-2006 No. 74, 136 P.3d 237 (Colo. 2006).   Initiative that proposed the creation of a new Colorado department of environmental conservation and the creation of a mandatory public trust standard that would have required the department to resolve conflicts between economic interest and public ownership and public conservation values in lands, waters, public resources, and wildlife in favor of public ownerships and public values contained multiple subjects. In re Ballot Title 2007-2008 No. 17, 172 P.3d 871 (Colo. 2007).   Initiative that comprehensively revamps constitutional recall provisions and allows recall of non-elected state and local officers contains more than one subject. In re Ballot Title 2013-2014 No. 76, 2014 CO 52, 333 P.3d 76.   Two proposed initiatives intended to modify the process for redistricting state legislative districts contained multiple subjects. While the provisions of the proposed initiatives collectively constituted a single subject that would change the criteria to be used in drawing legislative districts; restructure the Colorado reapportionment commission; subject the restructured commission to open meetings and open records laws; require a two-thirds vote for commission action; modify the process for drafting, approval, and judicial review of redistricting plans; and allow the commission to adopt rules to govern its administration and operation, both initiatives also included a second subject of significantly changing the mission and role of the supreme court nominating commission by requiring it to recommend unaffiliated or minor party members to serve on the restructured reapportionment commission. In addition, one of the proposed initiatives also included a third subject of transferring the power to redistrict the state's congressional districts from the general assembly to a newly created redistricting commission. Title, Ballot Title & Sub. Clause for 2015-2016 No. 132, 2016 CO 55, 374 P.3d 460.