CO Code § 1-40-107 (2021)
2021 Colorado Code|Title 1 - Elections|Article 40 - Initiative and Referendum|§ 1-40-107. Rehearing - Appeal - Fees - Signing

      Any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board with respect to whether a petition contains more than a single subject pursuant to section 1-40-106.5, or who is not satisfied with the titles and submission clause 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 state law or constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the decision is made or the titles and submission clause are set. (a) (I)Any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board with respect to whether a petition contains more than a single subject pursuant to section 1-40-106.5, or who is not satisfied with the titles and submission clause 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 state law or constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the decision is made or the titles and submission clause are set.    The designated representatives of the proponents or any registered elector who is not satisfied with the fiscal summary prepared by the director of research of the legislative council of the general assembly in accordance with section 1-40-105.5 may file a motion for a rehearing with the secretary of state within seven days after the titles and submission clause for the initiative petition are set on the grounds that:   (Deleted by amendment, L. 2020.)    The fiscal summary is misleading or prejudicial; or    The fiscal summary does not comply with the requirements set forth in section 1-40-105.5 (1.5).       The designated representatives of the proponents or any registered elector who is not satisfied with the determination by the title board made pursuant to section 1-40-106 (3.5) with respect to whether a petition that proposes a constitutional amendment only repeals in whole or in part a provision of the state constitution may file a motion for a rehearing with the secretary of state within seven days after the titles and submission clause for the initiative petition are set on the grounds that the determination is incorrect.       A motion for rehearing must be typewritten and set forth with particularity the grounds for rehearing. If the motion claims that the petition contains more than a single subject, then the motion must, at a minimum, include a short and plain statement of the reasons for the claim. If the motion claims that the title and submission clause set by the title board are unfair or that they do not fairly express the true meaning and intent of the proposed state law or constitutional amendment, then the motion must identify the specific wording that is challenged. If the motion claims that the fiscal summary is misleading or prejudicial or does not comply with the statutory requirements, the motion must specifically identify the specific wording that is challenged or the requirement at issue. The title board may modify the fiscal summary based on information presented at the rehearing. If the motion claims that the determination of whether the petition that proposes a constitutional amendment only repeals in whole or in part a constitutional provision is incorrect, the motion must include a short and plain statement of the reasons for the claim.    The motion for rehearing shall be heard at the next regularly scheduled meeting of the title board; except that, if the title board is unable to complete action on all matters scheduled for that day, consideration of any motion for rehearing may be continued to the next available day, and except that, if the titles and submission clause protested were set at the last meeting in April, the motion shall be heard within forty-eight hours after the expiration of the seven-day period for the filing of such motions. The decision of the title board on any motion for rehearing shall be final, except as provided in subsection (2) of this section, and no further motion for rehearing may be filed or considered by the title board.       If any person presenting or the designated representatives of the proponents of an initiative petition for which a motion for a rehearing is filed, any registered elector who filed a motion for a rehearing pursuant to subsection (1) of this section, or any other registered elector who appeared before the title board in support of or in opposition to a motion for rehearing is not satisfied with the ruling of the title board upon the motion, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles and submission clause of the proposed law or constitutional amendment, the fiscal summary, or the determination whether the petition repeals in whole or in part a constitutional provision, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within seven days thereafter, the matter shall be disposed of promptly, consistent with the rights of the parties, either affirming the action of the title board or reversing it, in which latter case the court shall remand it with instructions, pointing out where the title board is in error.    The secretary of state shall be allowed a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., for certifying a record of any proceedings before the title board. The clerk of the supreme court shall receive one-half the ordinary docket fee for docketing any such cause, all of which shall be paid by the parties desiring a review of such proceedings.    No petition for any initiative measure shall be circulated nor any signature thereto have any force or effect which has been signed before the titles and submission clause have been fixed and determined as provided in section 1-40-106 and this section, or before the fiscal summary has been fixed and determined as provided in section 1-40-105.5 and this section.    In the event a motion for rehearing is filed in accordance with this section, the period for filing a petition in accordance with section 1-40-108 shall not begin until a final decision concerning the motion is rendered by the title board or the Colorado supreme court; except that under no circumstances shall the period for filing a petition be extended beyond three months and three weeks prior to the election at which the petition is to be voted upon. (5.5) If the title board modifies the fiscal summary pursuant to this section, the secretary of state shall provide the director of research of the legislative council of the general assembly with a copy of the amended fiscal summary, and the director shall post the new version of the fiscal summary on the legislative council website.    (Deleted by amendment,L. 2000, p. 1622, § 5, effective August 2, 2000.)    (Deleted by amendment,L. 95, p. 432, § 5, effective May 8, 1995.)     History. Source: L. 93: Entire article amended with relocations, p. 680, § 1, effective May 4. L. 95: (1) and (7) amended, p. 432, § 5, effective May 8. L. 98: (2) amended, p. 635, § 9, effective May 6. L. 2000: (1), (2), (4), and (6) amended, pp. 1621, 1622, §§ 2, 5, effective August 2; (6) amended, p. 297, § 1, effective August 2. L. 2004: (1) amended, p. 756, § 2, effective May 12. L. 2009: (1) and (5) amended, (HB 09-1326), ch. 258, p. 1171, § 5, effective July 1. L. 2012: (1) and (2) amended, (HB 12-1313), ch. 141, p. 511, § 2, effective April 26; (2) amended, (SB 12-175), ch. 208, p. 896, § 172, effective July 1. L. 2015: (1)(a), (1)(b), (2), and (4) amended and (5.5) added, (HB 15-1057), ch. 198, p. 677, § 4, effective March 26, 2016. L. 2017: (1)(a)(III) added and (1)(b) and (2) amended, (SB 17-152), ch. 169, p. 616, § 2, effective August 9. L. 2020: (1)(a)(II), (1)(b), (2), (4), and (5.5) amended, (HB 20-1416), ch. 232, p. 1124, § 3, effective November 1.    Editor's note:   This section is similar to provisions of several former sections as they existed prior to 1993, and the former § 1-40-107 was relocated to § 1-40-113 . For a detailed comparison, see the comparative tables located in the back of the index.   Cross references:   For the general assembly, powers, and initiative and referendum reserved to the people, see also § 1 of art. V, Colo. Const.; for recall from office, see art. XXI, Colo. Const.   ANNOTATION   Law reviews. For article, “Popular Law-Making in Colorado”, see 26 Rocky Mt. L. Rev. 439 (1954).   Annotator's note. (1) The following annotations include cases decided under former provisions similar to this section.   (2) On rehearing by the title-setting board or review by the supreme court under this section, many of the same concerns will be relevant as are relevant to the initial setting of titles under § 1-40-106 . To avoid excessive duplication, most of the annotations to cases construing § 1-40-106 are not repeated here. Please see the annotations under § 1-40-106 for additional cases concerning the sufficiency of titles, and the authority and powers of the title-setting board, and the compliance of the title-setting board with statutory requirements.   (3) For additional cases concerning the initiative and referendum power, see the annotations under § 1 of article V of the state constitution.   Subsection (1) allows an objector to bring only one motion for rehearing to challenge the titles set by the title board. The title board properly denied an objector's second motion for rehearing based on lack of jurisdiction. In re Ballot Title 1999-2000 No. 219, 999 P.2d 819 (Colo. 2000).   The title board lacks jurisdiction to consider a motion for a second rehearing on a proposed initiative. No matter what the decision of the title board at a rehearing is, the only recourse available to a person who objects to the decision is to petition the supreme court for review of the decision. In re Ballot Title 2019-2020 #74, 2020 CO 5, 455 P.3d 759.   This section provides a special statutory process that overrides claim preclusion or law of the case principles. Consequently, the title board and the supreme court must review an initiative challenged under this section even if its language is identical to the language of a previous initiative. In re Ballot Title 2005-2006 No. 55, 138 P.3d 273 (Colo. 2006).   In a proceeding under this statute: (1) the supreme court must not in any way concern itself with the merit or lack of merit of the proposed amendment since, under our system of government, that resolution rests with the electorate; (2) all legitimate presumptions must be indulged in favor of the propriety of the board's action; and (3) only in a clear case should a title prepared by the board be held invalid. Bauch v. Anderson, 178 Colo. 308 , 497 P.2d 698 (1972); In re An Initiated Constitutional Amendment, 199 Colo. 409 , 609 P.2d 631 (1980); In re Title Pertaining to Sale of Table Wine in Grocery Stores, 646 P.2d 916 (Colo. 1982); Spelts v. Klausing, 649 P.2d 303 (Colo. 1982); In re Proposed Initiated Constitutional Amendment, 682 P.2d 480 (Colo. 1984); In re Proposed Initiative Concerning State Personnel Sys., 691 P.2d 1121 (Colo. 1984); In re Proposed Initiative Concerning Drinking Age, 691 P.2d 1127 (Colo. 1984); In re Proposed Initiative on Parental Notification of Abortions for Minors, 794 P.2d 238 (Colo. 1990).   In reviewing the board's title-setting process, the court does not address the merits of the proposed initiative and should not interpret the meaning of proposed language or suggest how it will be applied if adopted by the electorate; should resolve all legitimate presumptions in favor of the board; will not interfere with the board's choice of language if the language is not clearly misleading; and must ensure that the title, ballot title, submission clause, and summary fairly reflect the proposed initiative so that petition signers and voters will not be misled into support for or against a proposition by reason of the words employed by the board. In re Proposed Initiated Constitutional Amendment Concerning Limited Gaming in the Town of Burlington, 830 P.2d 1023 (Colo. 1992); Matter of Election Reform Amendment, 852 P.2d 28 (Colo. 1993); In re Proposed Initiative Concerning “Automobile Insurance Coverage”, 877 P.2d 853 (Colo. 1994).   Court will not address the merits of proposed initiatives nor interpret the meaning of proposed language. It is beyond the scope of the court's review to interpret or construe the language of a proposed initiative. In re Proposed Ballot Initiative on Parental Rights, 913 P.2d 1127 (Colo. 1996).   So long as the language chosen by the board fairly summarizes the intent and meaning of the proposed amendment, without arguing for or against its adoption, it is sufficient. In re Proposed Ballot Initiative on Parental Rights, 913 P.2d 1127 (Colo. 1996).   The board is not required to state the effect that an initiative may have on other constitutional provisions and the initiative summary is not intended to fully educate people on all aspects of the proposed law. In re Proposed Ballot Initiative on Parental Rights, 913 P.2d 1127 (Colo. 1996).   Court will not rewrite the titles or submission clause for the title board. Also, the court will reverse the title board's action in preparing the title or submission clause only if they contain a material and significant omission, misstatement, or misrepresentation. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998).   And the mere fact that, after an appeal has been taken and a court has had the benefit of the additional labor bestowed upon the ballot title by counsel, a court may be able to write a better ballot title than the one prepared by an attorney general constitutes no reason for discarding his title. Say v. Baker, 137 Colo. 155 , 322 P.2d 317 (1958).   Because the purpose of an appeal is not to secure for the bill the best possible ballot title, but to eliminate one that is insufficient or unfair, if it should develop that the one submitted by an attorney general is of that kind. Say v. Baker, 137 Colo. 155 , 322 P.2d 317 (1958); In re Branch Banking Initiative, 200 Colo. 85 , 612 P.2d 96 (1980); Matter of Educ. Tax Reform, 823 P.2d 1353 (Colo. 1991).   Court's function limited. It is not the function of the supreme court to rephrase the language of the summary and title in order to achieve the best possible statement of the intent of the amendment. In re Mineral Prod. Tax Initiative, 644 P.2d 20 (Colo. 1982).   Actions of the title setting review board will not be reversed just because a better title could have been adopted. Matter of Proposed Initiated Constitutional Amendment Concerning Suits Against Nongovernmental Employers Who Knowingly and Recklessly Maintain an Unsafe Work Environment, 898 P.2d 1071 (Colo. 1995).   Review limited to whether intent of initiative properly reflected. On review, the supreme court can only consider whether the titles, summary, and submission clause reflect the intent of the initiative, not whether they reflect all possible problems that may arise in the future in applying the language of the proposed initiative. In re Proposed Initiative on Transf. of Real Estate, 200 Colo. 40 , 611 P.2d 981 (1980); In re Title Pertaining to Sale of Table Wine in Grocery Stores, 646 P.2d 916 (Colo. 1982); Spelts v. Klausing, 649 P.2d 303 (Colo. 1982); In re Proposed Initiative on Confidentiality of Adoption Records, 832 P.2d 229 (Colo. 1992); In re Proposed Initiative on Sch. Pilot Program, 874 P.2d 1066 (Colo. 1994); Matter of Proposed Initiative 1997-98 No. 10, 943 P.2d 897 (Colo. 1997).   And interpretation of initiative not permitted. It is not the function of the supreme court in the review proceeding, nor is it the board's function, to determine the meaning of the language of the initiative: A judicial interpretation of the meaning of the initiative must await an adjudication in a specific factual context. Spelts v. Klausing, 649 P.2d 303 (Colo. 1982); In re Proposed Initiative on Parental Notification of Abortions for Minors, 794 P.2d 238 (Colo. 1990).   Court will not rewrite the titles or submission clause for the title board. Also, the court will reverse the title board's action in preparing the title or submission clause only if they contain a material and significant omission, misstatement, or misrepresentation. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998).   Title language employed by the title board will be rejected only if it is misleading, inaccurate or fails to reflect the central features of the proposed measure. In re Ballot Title 1999-2000 No. 215 (Prohibiting Certain Open Pit Mining), 3 P.3d 11 (Colo. 2000).   Title, ballot title, and submission clause of an initiative measure were not unfair or misleading where a term was not defined that would have required detailed statutory explanation. The board's omission of a definition in its title and summary is not an abuse of discretion where the definition is complex and would be impossible to define within the title and summary of the initiative without a detailed statutory explanation, even though the term is obscure and not within the common knowledge of most voters. Matter of Title, Ballot Title for 1997-98 No. 75, 960 P.2d 672 (Colo. 1998).   Title set by the title board was misleading and inaccurate and would be modified where the intent of the proposed measure was to prohibit the modification of certain mining permits to allow the expansion of mining operations but the title could be construed as prohibiting the expansion of mining operations under an existing, unmodified mining permit. In re Ballot Title 1999-2000 No. 215 (Prohibiting Certain Open Pit Mining), 3 P.3d 11 (Colo. 2000).   Issues of whether initiative violated article X, section 20, of the Colorado Constitution are premature and the court will not address them since that determination would necessarily require the court to interpret its language or predict its application if adopted by the electorate. Matter of Proposed Initiative 1997-98 No. 10, 943 P.2d 897 (Colo. 1997).   Although this section provides for supreme court review of citizen initiatives before they are submitted to the general electorate, it does not confer jurisdiction on the supreme court to review the constitutionality of legislative referenda prior to enactment. Thus, the supreme court lacked jurisdiction to review a legislative referendum for compliance with the single-subject requirement prior to enactment of the referendum. Polhill v. Buckley, 923 P.2d 119 (Colo. 1996).   Judicial determination of retroactive application of proposed amendment. If a controversy arises in a specific factual context, then judicial determination of retroactive application may be appropriate, but it is not relevant to the determination of the accuracy of the language of the titles, summary, and submission clause of a proposed amendment. In re Proposed Initiative on Transf. of Real Estate, 200 Colo. 40 , 611 P.2d 981 (1980); In re Proposed Initiative on Confidentiality of Adoption Records, 832 P.2d 229 (Colo. 1992).   Where a proposed amendment uses the term “strong public trust doctrine” but does not define it, such a definition must await future judicial construction and cannot appropriately be included in the title or submission clause. In re Proposed Initiative on Water Rights, 877 P.2d 321 (Colo. 1994).   The board is not required to state the effect that an initiative may have on other constitutional provisions, and the court may not address the potential constitutional interpretation implications of the initiative in the court's review. In re Proposed Initiative on Water Rights, 877 P.2d 321 (Colo. 1994).   As a general rule, court will reject the board's actions only where the language it has adopted is so inaccurate as to clearly mislead the electorate. In re Petition on Campaign & Political Fin., 877 P.2d 311 (Colo. 1994).   Burden for invalidating an amendment because of an alleged misleading ballot title, after adoption by the people in a general election, is heavy since the general assembly has provided procedures for challenging a ballot title prior to elections. Unless the challengers to the amendment can prove that so many voters were actually misled by the title that the result of the election might have been different, the challenge will fail. City of Glendale v. Buchanan, 195 Colo. 267 , 578 P.2d 221 (1978).   In considering whether the title, ballot title and submission clause, and summary accurately reflect the intent of the proposed initiative, it is appropriate to consider the testimony of the proponent concerning the intent of the proposed initiative that was offered at the public meeting at which the title, ballot title and submission clause, and summary were set. In re Proposed Initiated Constitutional Amendment Concerning Unsafe Workplace Env't, 830 P.2d 1031 (Colo. 1992).   Once petitioners file their petitions for review with the supreme court pursuant to subsection (2), the board loses jurisdiction to make substantive changes to the titles and summary. The board properly refused to consider a motion for rehearing filed by one opponent that raised substantive issues when the other opponents had already filed petitions for review with the supreme court; any action by the board to make substantive changes to the summary after the matter was before the supreme court on review would impermissibly intrude on the court's jurisdiction over the case. In re Ballot Title 1999-2000 No. 255, 4 P.3d 485 (Colo. 2000).   The time for filing an appeal to a decision of the title board is five days after the board denies the motion for rehearing and not five days from the date the secretary of state certifies the documents requested for appeal. Five days from the board's denial of a motion for rehearing is final action by the board regardless of whether an appeal is filed. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998).   For a timely appeal, it must be filed within five days from the board's denial of a motion for rehearing and must be construed with C.A.R. 26, thus clarifying the computation of five days to exclude Saturday and Sunday. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998).   Initiative proponents may circulate petitions for signatures after the title board has taken its final action in regard to the ballot titles and summary, pursuant to subsections (1) and (5), and while an appeal of that action to the supreme court is pending pursuant to subsection (2). Setting of titles and summary becomes a final title board action upon denial of a rehearing petition or upon expiration of the time for filing a rehearing petition with the title board. Armstrong v. Davidson, 10 P.3d 1278 (Colo. 2000).   Objector may not raise in a second motion for rehearing a challenge that the objector could have raised in the first motion for rehearing. Case-by-case analysis of the interests involved in setting the titles to an initiative is not required. In re Ballot Title 1999-2000 No. 215, 3 P.3d 447 (Colo. 2000).   Judicial review of abstract authorized. This section authorizes the state supreme court to review the title board's final decision regarding a fiscal impact statement abstract prepared pursuant to § 1-40-105.5 . And the court applies the same standard of review when reviewing an abstract as it applies when reviewing the title board's single-subject and clear-title findings by: (1) giving great deference to the title board; (2) drawing all legitimate presumptions in favor of the title board's decision; and (3) only overturning the board's decision in a clear case. In the Matter of the Title, Ballot Title & Sub. Clause for 2017-2018 No. 4, 2017 CO 57, 395 P.3d 318.   Applied in Matter of Proposed Initiative 1997-98 No. 86, 962 P.2d 245 (Colo. 1998); Matter of Proposed Initiative 1997-98 No. 109, 962 P.2d 252 (Colo. 1998); Matter of Proposed Initiative 1997-98 No. 112, 962 P.2d 255 (Colo. 1998).